Karen J. Wenrich, Complainant,v.Bruce Babbitt, Secretary, Department of the Interior, Agency.

Equal Employment Opportunity CommissionAug 17, 2000
01975278 (E.E.O.C. Aug. 17, 2000)

01975278

08-17-2000

Karen J. Wenrich, Complainant, v. Bruce Babbitt, Secretary, Department of the Interior, Agency.


Karen J. Wenrich v. Department of the Interior

01975278

August 17, 2000

Karen J. Wenrich, )

Complainant, )

)

v. ) Appeal No. 01975278

) Agency No. WGS-92-001/003/014

Bruce Babbitt, )

Secretary, )

Department of the Interior, )

Agency. )

______________________________________)

DECISION

INTRODUCTION

Complainant timely initiated an appeal to the Equal Employment Opportunity

Commission (EEOC) from the final agency decision concerning her equal

employment opportunity (EEO) complaint, which alleged discrimination

in violation of Title VII of the Civil Rights Act of 1964, as amended,

42 U.S.C. � 2000e et seq. The appeal is accepted by the Commission in

accordance with the provisions of 64 Fed. Reg. 37,644, 37,659 (1999)

(to be codified at 29 C.F.R. � 1614.405).

ISSUE PRESENTED

The issue presented is whether the agency properly determined the extent

of complainant's entitlement to compensatory damages.

BACKGROUND

This is the second appeal in this case. In its previous decision,

the Commission found, in relevant part, that the agency discriminated

against complainant based on her sex and in reprisal for prior EEO

activity when: (1) throughout her employment with the agency, she

was not given the opportunity to complete a research project, which

impeded her career advancement as compared to male research scientists;

and (2) when she received a rating of �meets� on Element 2 of her 1992

performance work plan, which resulted in her not receiving an overall

rating of �Outstanding.� Karen J. Wenrich v. Department of the Interior,

EEOC Appeal No. 01942943 (November 14, 1995). Among the other relief

awarded by the Commission, the agency was instructed to investigate and

to pay complainant's proven compensatory damages with regard to these

two issues.

The agency conducted a supplemental investigation, whereafter it issued

a final agency decision (FAD) awarding compensatory damages in the

amount of $944 in pecuniary damages, and $8000 in non-pecuniary damages.

It is from this decision that complainant now appeals.

The gist of complainant's argument on appeal is that, notwithstanding

that much of the discriminatory conduct which caused her injuries

occurred prior to the November 21, 1991, effective date of the Civil

Rights Act of 1991 which made compensatory damages available to federal

employees, she should nonetheless be compensated for the injuries caused

by agency conduct preceding that date, because the injuries continued

after that date. Complainant further argues that she is entitled

to compensation for �future damages,� although it is not readily

apparent whether she refers to pecuniary or non-pecuniary damages,

or both. In its response, the agency notes that the availability of

compensatory damages is not retroactive, and that complainant has not

submitted evidence substantiating her entitlement to future damages.

The agency argues that its award of non-pecuniary compensatory damages

is consistent with awards issued by the Commission in similar cases.

ANALYSIS AND FINDINGS

A. Legal Standards for an Award of Compensatory Damages

Pursuant to section 102(a) of the Civil Rights Act of 1991 (CRA 1991),

a complainant who establishes his or her claim of unlawful discrimination

may receive, in addition to equitable remedies, compensatory damages

for past and future pecuniary losses (i.e., out of pocket expenses)

and non-pecuniary losses (e.g., pain and suffering, mental anguish).

42 U.S.C. � 1981a(b)(3). For an employer with more than 500 employees,

such as the agency, the limit of liability for future pecuniary and

non-pecuniary damages is $300,000. Id.

The particulars of what relief may be awarded, and what proof is

necessary to obtain that relief, are set forth in detail in EEOC

Notice No. N 915.002, Compensatory and Punitive Damages Available

Under Section 102 of the Civil Rights Act of 1991 (July 14, 1992).

Briefly stated, the complainant must submit evidence to show that the

agency's discriminatory conduct directly or proximately caused the losses

for which damages are sought. Id. at 11-12, 14; Rivera v. Dept. of the

Navy, EEOC Appeal No. 01934157 (July 22, 1994). The amount awarded should

reflect the extent to which the agency's discriminatory action directly or

proximately caused harm to the complainant and the extent to which other

factors may have played a part.<1> EEOC Notice No. N 915.002 at 11-12.

The amount of non-pecuniary damages should also reflect the nature and

severity of the harm to the complainant, and the duration or expected

duration of the harm. Id. at 14.

In Carle v. Dept. of the Navy, the Commission explained that �objective

evidence� of non-pecuniary damages could include a statement by the

complainant explaining how he or she was affected by the discrimination.

EEOC Appeal No. 01922369 (January 5, 1993). Statements from others,

including family members, friends, and health care providers could

address the outward manifestations of the impact of the discrimination

on the complainant. Id. The complainant could also submit documentation

of medical or psychiatric treatment related to the effects of the

discrimination. Id.

The Commission applies the principle that �a tortfeasor takes its

victims as it finds them.� Wallis v. U.S. Postal Service, EEOC Appeal

No. 01950510 (November 13, 1995) (quoting Williamson v. Handy Button

Machine Co., 817 F.2d 1290, 1295 (7th Cir. 1987). The Commission

also applies two exceptions to this general rule. First, when a

complainant has a pre-existing condition, the agency is liable only

for the additional harm or aggravation caused by the discrimination.

Second, if the complainant's pre-existing condition inevitably would have

worsened, the agency is entitled to a reduction in damages reflecting

the extent to which the condition would have worsened even absent the

discrimination; the burden of proof being on the agency to establish the

extent of this entitlement. Wallis, EEOC Appeal No. 01950510 (citing

Maurer v. United States, 668 F.2d 98 (2d Cir. 1981); Finlay v. U.S. Postal

Service, EEOC Appeal No. 01942985 (April 29, 1997). The Commission

notes, however, that complainant is entitled to recover damages only

for injury, or additional injury, caused by the agency's discriminatory

actions. Terrell v. Dept. of Housing and Urban Development, EEOC Appeal

No. 01961030 (October 25, 1996); EEOC Notice No. N 915.002 at 12.

Regarding complainant's main argument on appeal � that she should

be compensated for injuries caused by agency conduct pre-dating the

effective date of the CRA 1991, because the injuries caused by such

conduct continued to affect her after the effective date -- the Commission

finds this argument to be without merit. It is well-settled that the CRA

1991 is not retroactive, and that compensatory damages are payable only

for injuries caused by discriminatory conduct which occurred on or after

November 21, 1991, the effective date of the CRA 1991. Landgraf v. USI

Film Products, 511 U.S. 244 (1994); see, e.g., Pailin v. Dept. of Defense,

EEOC Appeal No. 01954350 (January 26, 1998). In this regard, it is

noted that the Commission's previous decision stated, in relevant part:

[T]he record shows that the alleged discrimination in Complaint 2

[WGS-92-003], issue 5, concerning the denial of [complainant's] career

advancement, continued through the date of Complaint 2, December 20, 1991.

Therefore, with respect to this issue, [complainant] may be entitled to

compensatory damages for the period November 21, 1991, through December

20, 1991. In addition, pursuant to the above finding of discrimination

for issue 9 [WGS-92-014], which concerned the rating period April 1,

1991, to March 31, 1992, [complainant] may be entitled to compensatory

damages from November 21, 1991, to March 31, 1992.

Wenrich, EEOC Appeal No. 01942943.

According to the previous decision, then, complainant's entitlement to

compensatory damages is limited to compensation for injury caused by

the agency's discriminatory conduct which occurred during the period

November 21 to December 20, 1991, with regard to the career advancement

issue; and for injury caused by the agency's discriminatory conduct

which occurred during the period November 21, 1991, to March 31, 1992,

with regard to the performance appraisal issue.

B. Evidence of Causation

1. Complainant's statement

Complainant stated that, as a result of the agency's actions, she

experienced insomnia, memory loss, depression, damage to her sex life,

temporomandibular joint (TMJ) dysfunction, ulcerated colitis, and a

decrease in physical exercise and associated weight gain. Complainant

stated that she was �extremely damaged in [her] ability to earn income�

and experienced �social ostracism� in addition to the damages to her

health. Complainant also requested damages for the agency's treatment

of her during the processing of her complaint and the damage it caused

to her husband and her marriage.

2. Statements of Other Witnesses

Complainant submitted an April 14, 1996, statement from her husband,

MS, who at the time of the events at issue was also employed by the

agency in the same work area as complainant. MS stated that since

complainant initiated her first EEO complaint in 1991 (WGS-92-001),

�she has suffered a variety of physical and mental problems that I feel

are a direct result of stress from the investigation process and agency

and personnel behavioral patterns that resulted in hostility toward

[complainant] by supervisors, managers, and co-workers.� MS stated that

complainant's physical symptoms included severe gastrointestinal pains

diagnosed as ulcerative colitis<2> and severe headaches, both of which

curtail her ability to work and to travel.

MS also described changes in complainant's personality which he had

noticed �since the EEO processes started.� MS stated that before,

complainant was a �generally cheerful, friendly, optimistic person,�

but that she had since experienced periods of severe irritability which

had placed a strain on their marriage; that complainant has problems

sleeping, grinding her teeth and tossing and turning most of the night,

which also disturbs his sleep; and memory loss. MS noted that complainant

experienced �overt hostility� from her coworkers, and felt isolated and

friendless in her work environment.

Complainant also submitted an April 18, 1996, statement from a former

co-worker, RM. RM stated that she has known complainant as a close

friend for more than 25 years, and worked with her from January 1991

until October 1995, when both were separated from the agency in a RIF.

RM noted that she experiences gastrointestinal problems similar to

those experienced by complainant, and that they often discussed their

symptoms. RM stated that in early 1991, complainant was not bothered

by any such problems, but by the end of the year frequently complained

of gastrointestinal pains and bouts of diarrhea, which interfered with

her (complainant's work) and made it �almost impossible� to go far from

a restroom. RM also stated that she knew of and witnessed complainant

to experience severe headaches which also interfered with her work,

as well as severe allergy attacks which RM thought might have been

aggravated by stress. RM further stated that complainant was spending

long hours at night on the paperwork associated with her EEO complaints,

therefore not getting adequate sleep, which caused her to be over-tired

and further interfered with her work. RM also stated that, starting in

the later part of 1991, the atmosphere in the office changed, in that

colleagues stopped coming by the office she shared with complainant,

and would not acknowledge the two of them in the hallways, although they

would acknowledge RM if she were alone. RM also noted that office staff

members became uncooperative with both of them, and would not offer any

assistance beyond what was absolutely necessary.

3. Medical Evidence

In support of her request for damages, complainant submitted a June 21,

1996, report from Dr. CD, her gastroenterologist. Dr. CD stated that he

had treated complainant since 1988 for chronic symptoms of abdominal pain,

bloating, cramps, intermittent loose stools with mucous, and bleeding.

Dr. CD stated, �This has been diagnosed as irritable bowel syndrome which

bears a direct relationship to the amount of stress under which she has

and continues to labor.� Dr. CD noted that complainant had been treated

with a class of drugs called anticholinergics, but that the treatment

had been stopped on account of side-effects, which included sleepiness

and dry mouth and eyes. Dr. CD further stated:

The primary area of stress in her life has been directly related to her

work experience. This has been the primary aggravating factor over the

course of the last eight years.

... Over the last two years she has continued abdominal pain, bloating,

[and] intermittent diarrhea with mucous as she has had in the past.

Again, this has a direct relationship to her work environment over that

period of time.

Complainant also submitted a July 1, 1996, report from Dr. JG, her

psychotherapist. Dr. JG noted that complainant began treatment with him

in February 1988, at which time her chief concern was marital problems

which had led her and her husband to separate. Dr. JG stated that,

at that time, complainant reported her work situation as being �quite

positive and not a source of significant stress.� Dr. JG noted that over

time complainant's relationship with her husband �was improved although

there was room for more improvement.� Dr. JG continued:

During and before the time that [complainant] filed her first EEO

complaint she complained of increasing stress at work, and she was

particularly concerned about her physical health in that she had been

diagnosed with ulcerative colitis,<3> a condition which is known to

be exacerbated by emotional stress. Her complaints about her colitis

were frequent. It seemed very likely to me that her stressful situation

at work was contributing to her ulcerative colitis symptoms. Time was

spent in therapy discussing these physical problems and [complainant's]

frustration at work which put additional stress on the relationship.

In light of the fact that the marital situation was improving and that

[complainant's] complaints about the stress and frustration at work

were increasing in frequency and intensity, it seems probable to me

that the work situation was a significant factor in [complainant's]

physical problems.

Complainant further submitted a July 11, 1996, report from her dentist,

Dr. TT. Dr. TT stated that he had treated complainant since 1989,

at which time she already had a four-year history of cranio-mandibular

problems. Dr. TT diagnosed complainant as having Displacement of Disc,

Recurrent; Degenerative Arthritis; Myalgia; and Dislocation of Jaw,

Closed, right side. Dr. TT noted that by December 1994, complainant had

shown improvement with use of an orthotic device, although her condition

had not returned to normal. Dr. TT stated, in relevant part, �As per

patient history, throughout her treatment there were stress complication

factors related to her employment environment which aggravated her

dysfunction and impaired her return to normal function and range of

motion.� Dr. TT noted that complainant returned to him in April 1996

with a decrease in function and an increase in bruxism (clenching and

grinding teeth). He noted that minor clenching and grinding is normal,

but �a person under a lot of stress will clench and grind to a degree

that it can cause tooth wear, tooth loss, bone loss, [and] facial pain,

and exacerbate any condition related to temporomandibular joints.�

C. Calculation of Damages Payable

1. Past Pecuniary Damages

On appeal, complainant does not argue the sufficiency of the agency's

award of past pecuniary damages in the amount of $944. The Commission

therefore will not address this aspect of the award further.

2. Future Pecuniary Damages

Complainant appears to argue that she is entitled to future pecuniary

damages. However, she has submitted no evidence in support of this

argument; for example, a physician's report opining as to an expected

course of future treatment. Further, complainant appears also to be

claiming future pecuniary damages for loss of her employment with the

agency, which was occasioned by a reduction-in-force (RIF) subsequent to

the events at issue in the underlying case. However, the assessment of

complainant's entitlement to damages herein is limited to compensation

of the injuries she has shown to have been caused by the discrimination

found in the underlying case; to wit, the agency's failure to allow

her to complete a research project which had the effect of impeding

her career advancement, and her performance appraisal for the 1991-1992

appraisal period. Complainant's separation from the agency during the

subsequent RIF was not at issue in the underlying case.

3. Non-Pecuniary Damages

Complainant has requested an award of non-pecuniary damages in the

range of $85,000 to $100,000. Complainant's brief on appeal indicates,

however, that complainant arrived at this range by including injuries

allegedly sustained on account of actions of the agency preceding

the effective date of the CRA 1991, actions of the agency for which no

finding of discrimination was entered in the underlying case (for example,

complainant's separation from the agency after the events at issue in the

underlying case), and a �presumption that these injuries are permanent

and will continue for the rest of [complainant's] life,� with her life

expectancy estimated at an additional 29.5 years. As explained above,

however, compensatory damages are payable only with regard to conduct

of the agency which occurred after the effective date of the CRA 1991,

and only with regard to matters where there has been a finding of

discrimination in this case. Further, complainant bears the burden of

proof with regard to the expected duration of her injuries. E.g., Rivera,

EEOC Appeal No. 01934157. She has not submitted evidence to support

a finding that the effects of her injuries will continue indefinitely;

neither has she cited any authority to support her argument that she is

entitled to a presumption that her injuries will continue for the rest of

her life. In addition, complainant requested damages for harm incurred

during the processing of her EEO complaint. Compensatory damages are

not payable, however, for injury attributable to participation in the

EEO process. Wallis, EEOC Appeal No. 01950510.

There are no "hard and fast" rules governing the amount to be awarded.

However, non-pecuniary damages must be limited to the sums necessary

to compensate the injured party for actual harm, even where the

harm is intangible, see Carter v. Duncan-Hogans, Ltd., 727 F.2d 1225

(D.C. Cir. 1994), and should take into account the severity of the harm

and the length of time that the injured party has suffered from the harm.

Carpenter v. Dept. of Agriculture, EEOC Appeal No. 01945652 (July 17,

1995); EEOC Notice No. N 915.002 at 14. The Commission notes that for

a proper award of non-pecuniary 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 Cygnar v. City of Chicago, 865 F.2d 827, 848 (7th

Cir. 1989); US EEOC v. AIC Security Investigations, Ltd., 823 F.Supp. 573,

574 (N.D. Ill. 1993).

In this case, complainant is entitled to an award of damages for the

aggravation of her pre-existing gastric and dental conditions, as well

as any new condition caused by the agency's actions in not allowing her

to complete a research project and in improperly rating her 1991-1992

performance, to the extent that such actions occurred and such injuries

were incurred on and after November 21, 1991. The Commission notes

that much of complainant's injuries are attributed by all sources to

complainant's participation in the EEO process, and to actions of the

agency prior to November 21, 1991, and actions other than those for

which there was a finding of discrimination in the underlying case.

As explained in detail above, such injuries either are not compensable

at all, or are not compensable within the scope of this particular case.

Several Commission decisions have awarded compensatory damages in cases

which, while not identical to complainant's, nonetheless are instructive.

Benson v. Dept. of Agriculture, EEOC Appeal No. 01952854 (June 27, 1996)

($5,000 non-pecuniary damages where complainant was denied promotional

opportunities on the bases of race and reprisal, and consequently

experienced stress, skin rashes, withdrawal, and isolation); Lawrence

v. U.S. Postal Service, EEOC Appeal No. 01952288 (April 18, 1996)

($3,000 in non-pecuniary damages for sexual harassment where complainant

presented primarily non-medical evidence that she was irritable,

experienced anxiety attacks, and was shunned by her co-workers);

Rountree v. Dept. of Agriculture, EEOC Appeal No. 01941906 (July 7,

1995) ($8,000 in non-pecuniary damages where complainant received a

low performance appraisal and was denied bonus pay because of race and

reprisal; 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).

Taking into account the evidence of non-pecuniary damages submitted by

complainant, the Commission finds that the agency's award of $8000 was

appropriate in this case. This amount takes into account the severity

and duration of the harm done to complainant by the agency's actions as

established by complainant's evidence. 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, albeit not identical,

cases. See Cygnar, 865 F.2d at 848; AIC Security Investigations, 823

F.Supp. 573 at 574.

CONCLUSION

Based upon a thorough review of the record, and for the foregoing reasons,

it is the decision of the Equal Employment Opportunity Commission to

AFFIRM the final agency decision.

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).

COMPLAINANTS' RIGHT TO FILE A CIVIL ACTION (S0400)

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. 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. If you

file a request to reconsider and also file a civil action, 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:

August 17, 2000

DATE Carlton M. Hadden, Acting Director

Office of Federal Operations

Date

1Both the FAD and complainant's pleadings contain references to �egregious

conduct� in the context of what amount of damages might be payable.

The Commission notes, however, that while the egregiousness of an

agency's conduct may be relevant in assessing the cause and extent of

a complainant's injuries, it is not, in and of itself, grounds for

enhancing an award of damages. See 42 U.S.C. � 1981a(b)(1); York

v. Dept. of the Navy, EEOC Appeal No. 01930435 (February 25, 1994)

(punitive damages are not recoverable against the federal government).

2See note 3, infra.

3It is noted that Dr. CD diagnosed complainant with irritable bowel

syndrome, not ulcerative colitis.