01975988
04-03-2000
Joyce Koch, Complainant, v. Rodney E. Slater, Secretary, Department of Transportation, (Federal Aviation Administration), Agency.
Joyce Koch v. Department of Transportation
01975988
April 3, 2000
Joyce Koch, )
Complainant, )
) Appeal No. 01975988
v. ) Agency No. DOT-93-0159
)
Rodney E. Slater, )
Secretary, )
Department of Transportation, )
(Federal Aviation Administration), )
Agency. )
____________________________________)
DECISION
Complainant timely initiated an appeal from a final agency decision
(FAD) concerning her equal employment opportunity (EEO) complaint of
unlawful employment discrimination on the basis of sex (female), age (59)
and physical disability (cancer) in violation of Title VII of the Civil
Rights Act of 1964, as amended, 42 U.S.C. �2000e et seq.<1> Complainant
alleges she was discriminated against on the above-stated bases when
she was required by the agency to take remedial training following an
unsatisfactory "over-the-shoulder" evaluation. The appeal is accepted
pursuant to 64 Fed. Reg. 37,644, 37,659 (1999)(to be codified at 29
C.F.R. �1614.405). For the following reasons, the Commission AFFIRMS
the agency's FAD.
BACKGROUND
Complainant, an Air Traffic Control Specialist, GS-2152-12, with
the agency's Federal Aviation Administration, Southern Region, Air
Traffic Division in Louisville, Kentucky, filed a formal complaint
on September 10, 1992, alleging discrimination as referenced above.
The agency accepted and investigated the complaint and issued a FAD, which
found that complainant had not established discrimination on any basis.
On complainant's appeal, the Commission found that complainant established
prima facie cases of age and sex discrimination regarding her placement
in remedial training. See Koch v. Department of Transportation, EEOC
Appeal No. 01945546 (January 16, 1996). The Commission further found that
complainant established a prima facie case of disability discrimination,
as she was regarded by the agency as an individual with a disability,
she was qualified to perform the essential functions of the position in
question and was treated less favorably than was a similarly situated
individual not in her protected classes. The Commission further found
that the agency articulated a legitimate, nondiscriminatory reason for
requiring complainant to undergo training, namely, her unsatisfactory
evaluation in 1992. We then found that while complainant established that
it was more likely than not that a discriminatory reason related to her
sex motivated the responsible officer to place her in remedial training,
she failed to demonstrate that the agency's articulated reason was a
pretext for discrimination based on her age or disability. To remedy the
discrimination based on sex, the Commission ordered the agency to conduct
a supplemental investigation for complainant's claim of compensatory
damages and issue a final decision concerning the relief due complainant.
After conducting a supplemental investigation evaluating the evidence,
the agency issued a FAD finding that complainant failed to establish
entitlement to any pecuniary damages. The FAD, however, found that
complainant had proven that the discrimination which occurred during the
years 1990-1994 caused her emotional harm, and awarded her $16,000.00
in non-pecuniary damages. Complainant thereafter appealed the agency's
compensatory damages determination, contending that due to the nature and
severity of the emotional harm she suffered due to the discrimination
against her, the non-pecuniary award should have been $175,000.00.
The agency responded by restating its initial argument that complainant
failed to meet her burden of proving compensatory damages.
ANALYSIS
Section 102(a) of the 1991 Civil Rights Act authorizes an award
of compensatory damages for all post-Act pecuniary losses, and for
non-pecuniary losses, such as, but not limited to, emotional pain,
suffering, inconvenience, mental anguish, loss of enjoyment of life,
injury to character and reputation, and loss of health. In this regard,
the Commission has authority to award such damages in the administrative
process. See West v. Gibson, 527 U.S. 212 (1999). Compensatory damages
do not include back pay, interest on back pay, or any other type of
equitable relief authorized by Title VII. To receive an award of
compensatory damages, a complainant must demonstrate that he has been
harmed as a result of the agency's discriminatory action; the extent,
nature and severity of the harm; and the duration or expected duration
of the harm. Rivera v. Department of the Navy, EEOC Appeal No. 01934157
(July 22, 1994), req. for reconsid. denied, EEOC Request No. 05940927
(December 11, 1995); Compensatory and Punitive Damages Available Under
Section 102 of the Civil Rights Act of 1991, EEOC Notice No. 915.002 at
11-12, 14 (July 14, 1992). A complainant is required to provide evidence
that will allow an agency to assess the merits of a request for damages.
See Carle v. Department of the Navy, EEOC Appeal No. 01922369 (January
5, 1993).
Pecuniary Damages
Compensatory damages may be awarded for pecuniary losses that are
directly or proximately caused by the agency's discriminatory conduct.
See Compensatory and Punitive Damages Available Under Section 102
of the Civil Rights Act of 1991, EEOC Notice No. 915.002 at 8.
Pecuniary losses are out-of-pocket expenses incurred as a result
of the agency's unlawful action, including job-hunting expenses,
moving expenses, medical expenses, psychiatric expenses, physical
therapy expenses, and other quantifiable out-of-pocket expenses. Id.
Past pecuniary losses are losses incurred prior to the resolution of a
complaint through a finding of discrimination, or a voluntary settlement.
Id. at 8-9. Future pecuniary losses are losses that are likely to occur
after resolution of a complaint. Id. at 9. Complainant has not sought
pecuniary damages in the instant case, and seeks only compensatory damages
for non-pecuniary losses. After a review of the record, we find that
other than fees paid to her attorney, complainant has failed to provide
any objective evidence of pecuniary damages. There are no receipts,
records, bills, canceled checks, or other proof of actual losses and
expenses to substantiate her claim. Thus, the Commission finds that
complainant has not proven an entitlement to pecuniary losses.
Non-Pecuniary Damages
Non-pecuniary damages constitute the sums necessary to compensate
the injured party for actual harm, even where the harm is intangible.
Carter v. Duncan-Higgins, Ltd., 727 F.2d 1225 (D.C. Cir. 1984). The
award should take into account the severity and duration of the harm.
Carpenter v. Department of Agriculture, EEOC Appeal No. 01945652 (July
17, 1995). Non-pecuniary and future pecuniary damages are limited
to an amount of $300,000.00. The Commission notes that for a proper
award of nonpecuniary damages, the amount of the award should not be
"monstrously excessive" standing alone, should not be the product of
passion or prejudice, and should be consistent with the amount awarded
in similar cases. See Ward-Jenkins v. Department of the Interior, EEOC
Appeal No. 01961483 (March 4, 1999) (citing Cygnar v. City of Chicago,
865 F.2d 827, 848 (7th Cir. 1989)).
Applying the above legal standards, we agree with the portion of the
agency's conclusion finding that complainant submitted sufficient evidence
to establish that she suffered emotional harm as a result of the agency's
discrimination. The record contains several instances where witnesses
attested to the effect the discrimination had on complainant's mental
health. Complainant testified that she experienced digestive problems,
headaches, anxiety, nightmares, sleeplessness, and exhaustion as a result
of the discrimination. While many of complainant's symptoms are related
to her chemotherapy treatments, there is sufficient evidence to establish
that her emotional problems were related, at least in part, to the
discriminatory conduct and hostile work environment. We therefore concur
with the FAD that this evidence establishes complainant's entitlement
to compensatory damages. See Sinott v. Department of Defense, EEOC
Appeal No. 01952872 (September 19, 1996)(stating that an complainant's
own testimony, along with the circumstances of a particular case, can
establish mental or emotional harm).
While there is no dispute that complainant is entitled to non-pecuniary
damages, the parties differ on the appropriate amount necessary to remedy
the discrimination. Complainant contends that at a minimum, she should
receive $175,000.00, and the agency found in its FAD that $16,000.00
properly compensates complainant for the underlying discrimination.
We note that in cases somewhat similar to complainant's, the Commission
has awarded compensatory damages in amounts lower than that awarded
by the FAD in the instant case. Butler v. Department of Agriculture,
EEOC Appeal No. 01971729 (April 15, 1999)($7,500 in non-pecuniary damages
based on complainant's testimony regarding his emotional distress); Hull
v Department of Veteran Affairs, Appeal No. 01951441 (Sept. 18, 1998)
($12,000 in non-pecuniary damages based on complainant's testimony of
emotional distress due to retaliatory harassment); Miller v. United
States Postal Service, EEOC Appeal No. 01956109 (January 23, 1998),
($7,500.00 in non-pecuniary damages where the complainant produced scant
evidence to support his claim); Roundtree v. Department of Agriculture,
EEOC Appeal No. 01941906 (July 7, 1995) ($8,000 in non-pecuniary damages
where medical evidence testimony was provided regarding complainant's
emotional distress, but the majority of complainant's emotional problems
were caused by factors other than the discrimination).
In the present case, the evidence concerning emotional or mental harm
comes from complainant, her children, her sister, and co-workers.
After analyzing the evidence which establishes the stress and emotional
discomfort sustained by complainant and upon consideration of damage
awards reached in comparable cases, the Commission declines to disturb
the FAD's award of non-pecuniary damages in the amount of $16,000.00,
which took into account the severity and duration of the harm done
to complainant by the agency's requirement that she undergo remedial
training. The Commission notes that the testimony of complainant's
children, sister and co-workers establish that she endured approximately
four years of emotional distress due to the agency's discrimination.
The Commission further notes that this amount meets the goals of not
being motivated by passion or prejudice, not being "monstrously excessive"
standing alone, and being consistent with the amounts awarded in similar
cases. See Cygnar, 865 F.2d at 848. In addition, the Commission finds
the non-pecuniary damages reasonable in light of the evidence which
strongly suggests that complainant's depression and related symptoms
were in large part the result of her lymphoma diagnosis and resulting
chemotherapy treatments.
Regarding complainant's contention that she continued to experience the
effects of discrimination until 1996, we agree with the FAD's findings
that any emotional stress complainant continued to experience after she
ended her employment was related to her participation in the EEO process,
and compensatory damages are therefore not recoverable for that period.
See Roundtree, supra. Finally, we note that while complainant has
contended that she would have continued to work for an additional four
(4) years had she not experienced discrimination, we agree with the FAD's
finding that there is insufficient evidence in the record to justify an
award of additional compensatory damages on this basis. In so finding, we
note that complainant's early retirement was not undertaken for medical
reasons but was induced by a cash incentive and was voluntary in nature.
CONCLUSION
Accordingly, based on a thorough review of the record, and for the
foregoing reasons, we AFFIRM the FAD's finding of no pecuniary damages,
and we AFFIRM the FAD's finding regarding the appropriate amount of
non-pecuniary damages.
ORDER (C1092)
To the extent it has not already done so, we hereby ORDER the agency to,
within thirty (30) days of the date on which this decision becomes final,
tender to complainant non-pecuniary compensatory damages in the amount
of $16,000.00.
The agency is further directed to submit a report of compliance, as
provided in the statement entitled "Implementation of the Commission's
Decision." The report must include evidence that the corrective action
has been implemented.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K1199)
Compliance with the Commission's corrective action is mandatory.
The agency shall submit its compliance report within thirty (30) calendar
days of the completion of all ordered corrective action. The report shall
be submitted to the Compliance Officer, Office of Federal Operations,
Equal Employment Opportunity Commission, P.O. Box 19848, Washington,
D.C. 20036. The agency's report must contain supporting documentation,
and the agency must send a copy of all submissions to the complainant.
If the agency does not comply with the Commission's order, the complainant
may petition the Commission for enforcement of the order. 29 C.F.R. �
1614.503(a). The complainant also has the right to file a civil action
to enforce compliance with the Commission's order prior to or following
an administrative petition for enforcement. See 64 Fed. Reg. 37,644,
37,659-60 (1999) (to be codified and hereinafter referred to as 29
C.F.R. �� 1614.407, 1614.408) and 29 C.F.R. � 1614.503(g). Alternatively,
the complainant has the right to file a civil action on the underlying
complaint in accordance with the paragraph below entitled "Right to File
A Civil Action." 29 C.F.R. �� 1614.407 and 1614.408. A civil action
for enforcement or a civil action on the underlying complaint is subject
to the deadline stated in 42 U.S.C. � 2000e-16(c)(Supp. V 1993). If the
complainant files a civil action, the administrative processing of the
complaint, including any petition for enforcement, will be terminated.
See 64 Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter
referred to as 29 C.F.R. � 1614.409).
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0300)
The Commission may, in its discretion, reconsider the decision in this
case if the complainant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. The appellate decision involved a clearly erroneous interpretation
of material fact or law; or
2. The appellate decision will have a substantial impact on the policies,
practices, or operations of the agency.
Requests to reconsider, with supporting statement or brief, MUST BE FILED
WITH THE OFFICE OF FEDERAL OPERATIONS (OFO) WITHIN THIRTY (30) CALENDAR
DAYS of receipt of this decision or WITHIN TWENTY (20) CALENDAR DAYS OF
RECEIPT OF ANOTHER PARTY'S TIMELY REQUEST FOR RECONSIDERATION. See 64
Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter referred
to as 29 C.F.R. � 1614.405); Equal Employment Opportunity Management
Directive for 29 C.F.R. Part 1614 (EEO MD-110), 9-18 (November 9, 1999).
All requests and arguments must be submitted to the Director, Office of
Federal Operations, Equal Employment Opportunity Commission, P.O. Box
19848, Washington, D.C. 20036. In the absence of a legible postmark, the
request to reconsider shall be deemed timely filed if it is received by
mail within five days of the expiration of the applicable filing period.
See 64 Fed. Reg. 37,644, 37,661 (1999) (to be codified and hereinafter
referred to as 29 C.F.R. � 1614.604). The request or opposition must
also include proof of service on the other party.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely, unless extenuating circumstances
prevented the timely filing of the request. Any supporting documentation
must be submitted with your request for reconsideration. The Commission
will consider requests for reconsideration filed after the deadline only
in very limited circumstances. See 29 C.F.R. � 1614.604(c).
RIGHT TO FILE A CIVIL ACTION (R0993)
This is a decision requiring the agency to continue its administrative
processing of your complaint. However, if you wish to file a civil
action, you have the right to file such action in an appropriate United
States District Court. You have the right to file a civil action in
an appropriate United States District Court WITHIN NINETY (90) CALENDAR
DAYS from the date that you receive this decision. You should be aware,
however, that courts in some jurisdictions have interpreted the Civil
Rights Act of 1991 in a manner suggesting that a civil action must be
filed WITHIN THIRTY (30) CALENDAR DAYS from the date that you receive
this decision. To ensure that your civil action is considered timely,
you are advised to file it WITHIN THIRTY (30) CALENDAR DAYS from the
date that you receive this decision or to consult an attorney concerning
the applicable time period in the jurisdiction in which your action
would be filed. In the alternative, you may file a civil action AFTER
ONE HUNDRED AND EIGHTY (180) CALENDAR DAYS of the date you filed your
complaint with the agency, or filed your appeal with the Commission.
If you file a civil action, YOU MUST NAME AS THE DEFENDANT IN THE
COMPLAINT THE PERSON WHO IS THE OFFICIAL AGENCY HEAD OR DEPARTMENT HEAD,
IDENTIFYING THAT PERSON BY HIS OR HER FULL NAME AND OFFICIAL TITLE.
Failure to do so may result in the dismissal of your case in court.
"Agency" or "department" means the national organization, and not the
local office, facility or department in which you work. Filing a civil
action will terminate the administrative processing of your complaint.
RIGHT TO REQUEST COUNSEL (Z1199)
If you decide to file a civil action, and if you do not have or cannot
afford the services of an attorney, you may request that the Court appoint
an attorney to represent you and that the Court permit you to file the
action without payment of fees, costs, or other security. See Title VII
of the Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e et seq.;
the Rehabilitation Act of 1973, as amended, 29 U.S.C. �� 791, 794(c).
The grant or denial of the request is within the sole discretion of
the Court. Filing a request for an attorney does not extend your time
in which to file a civil action. Both the request and the civil action
must be filed within the time limits as stated in the paragraph above
("Right to File A Civil Action").
FOR THE COMMISSION:
April 3, 2000
_______________
Date Carlton M. Hadden, Acting Director
Office of Federal Operations
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days of mailing. I certify that
the decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
_______________ __________________________
Date Equal Employment Assistant
1 On November 9, 1999, revised regulations governing the EEOC's federal
sector complaint process went into effect. These regulations apply to all
federal sector EEO complaints pending at any stage in the administrative
process. Consequently, the Commission will apply the revised regulations
found at 64 Fed. Reg. 37,644 (1999), where applicable, in deciding the
present appeal. The regulations, as amended, may also be found at the
Commission's website at www.eeoc.gov.