01994500
10-31-2000
Karla Deering - Benford, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, (S.E./S.W Areas), Agency.
Karla Deering - Benford, )
Complainant, )
) Appeal No. 01994500
v. ) Agency No. 1H-322-1025-94
) 4H-320-1220-94
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
(S.E./S.W Areas), )
Agency. )
____________________________________)
DECISION
INTRODUCTION
Complainant timely initiated an appeal from a final agency decision
(FAD) concerning her complaint of unlawful employment discrimination
in violation of Title VII of the Civil Rights Act of 1964, as amended,
42 U.S.C. � 2000e et seq.<1> The appeal is accepted pursuant to 64
Fed. Reg. 37,644, 37,659 (1999)(to be codified at 29 C.F.R. � 1614.405).
ISSUE PRESENTED
Whether the agency's final decision that found complainant was not
entitled to an award of compensatory damages was correct.
BACKGROUND
The record reveals that during the relevant time, complainant was an
applicant for hire at the agency's Bulk Mail Facility in Jacksonville,
Florida. Believing she was a victim of discrimination, complainant
sought EEO counseling and subsequently filed formal EEO complaints on
May 17, 1994, and August 31, 1994. In her first complaint, complainant
alleged she was discriminated against on the basis of reprisal (prior EEO
activity), when on March 24, 1994, a memo was placed in her file stating
not to hire her. In her second complaint, she alleged discrimination
on the bases of sex (female) and reprisal (prior EEO activity), when
on June 6, 1994, she was not hired as a Transitional Employee (TE),
and was told it took three months to process applications.
At the conclusion of the investigation, complainant requested a hearing
before an EEOC Administrative Judge (AJ). Following a hearing, the AJ
issued a recommended decision finding complainant was discriminated
against on the bases of reprisal when a memo was placed in her file
stating not to hire her. As relief, the AJ recommended that the agency
expunge all derogatory statements from complainant's personnel file,
appoint her to a casual position with back pay<2>, and pay her reasonable
expenses for her attendance at the hearing. The AJ also recommended that
complainant be awarded $1,000 in non pecuniary compensatory damages.
In fashioning complainant's compensatory damage award, the AJ noted
that the particular circumstances in this case presented an �egregious
situation where it is very clear that a former employee with an otherwise
clean record was penalized for having exercised her rights under the
law.� RD at 29.
As for complainant's second complaint, the AJ found complainant was
not discriminated against when she was not hired for a TE position,
and when she was told it took three months to process applications.
The AJ found that at the time complainant applied for a TE position
in March 1994, there were no new TE position available since the TE
positions were being eliminated completely by the agency.
In its FAD, the agency adopted the AJ's finding of discrimination and
recommended relief, as clarified. Complainant thereafter filed an appeal
with the Office of Federal Operations (OFO). See Karla Deering v. United
States Postal Service, EEOC Appeal No. 01973389 (January 15, 1999).
On appeal, complainant submitted evidence that showed, despite agency
testimony at the hearing to the contrary, that TE appointments were
available after March 1994. The document, which was dated February 2,
1996 (five and a half months before the hearing) revealed that other
TE appointments were made after March 1994. In our prior decision, we
found that the agency was aware of the TE information at the time of
the hearing, but made no effort to explain its actions. In light of
this, we determined that complainant was in fact discriminated against
on the basis of reprisal when, as she alleged in her second complaint,
she was denied a TE appointment in March 1994.
As such, we ordered the agency to offer complainant a TE appointment,
and award her back pay and all benefits. The agency was also ordered
to implement its final decision to the extent that it had already not
done so. Finally, we ordered the agency to conduct a supplementary
investigation into complainant's entitlement to compensatory damages.
On April 22, 1999, the agency issued another final decision. Therein,
the agency determined complainant was not entitled to an award of
compensatory damages. As reason, the agency found complainant did not
provide any medical documentation that showed complainant's alleged
condition was due to the discrimination. In addition, the agency noted
complainant stated �she was not treated by a health care provider, nor
[was she] confined to a bed during the period in question.� FAD at 2.
Complainant appealed the agency's final decision regarding her award of
compensatory damages. On appeal, she submits the statement she provided
to the agency in response to its inquiry regarding her emotional distress.
ANALYSIS AND FINDINGS
Section 102(a) of the 1991 Civil Rights Act ("CRA") authorizes an
award of compensatory damages for all post-Act pecuniary losses, and
for nonpecuniary 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 West
v. Gibson, 119 S.Ct. 1906 (1999), the United States Supreme Court
found that Congress afforded the Commission the authority to award such
damages in the administrative process. The CRA authorizes an award of
compensatory damages as part of make-whole relief for discrimination.
Section 1981a(b)(3) limits the total amount of compensatory damages
that may be awarded each complaining party for future pecuniary
losses, emotional pain, suffering, inconvenience, mental anguish,
loss of enjoyment of life, and other nonpecuniary losses, according to
the number of individuals employed by the respondent. The limit for a
respondent who has more than 500 employees is $300,000.
To receive an award of compensatory damages, a complainant must
demonstrate that she 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), request for reconsideration denied, EEOC Request
No. 05940927 (December 11, 1995); Lawrence v. United States Postal
Service, EEOC Appeal No. 01952288 (April 18, 1996). Compensatory and
Punitive Damages Available Under Section 102 of the Civil Rights Act of
1991, EEOC Notice No. N 915.002 at 11-12, 14 (July 14, 1992).
The Commission's July 1992 notice set forth guidelines for use in
establishing entitlement to compensatory damages. See id. at 8-14.
Such damages may be awarded for past pecuniary losses, future pecuniary
losses, and nonpecuniary losses directly or proximately caused by the
agency's discriminatory conduct.
Pecuniary Damages
Pecuniary losses are out-of-pocket expenses incurred as a result of
the employer's unlawful action, including job-hunting expenses, moving
expenses, medical expenses, psychiatric expenses, physical therapy
expenses, and other quantifiable out-of-pocket expenses. Complainant did
not request, nor provide any evidence of pecuniary damages. As such,
she has not proved her entitlement to such damages.
Non-Pecuniary Damages
Nonpecuniary losses are losses that are not subject to precise
quantification, including emotional pain, suffering, inconvenience, mental
anguish, loss of enjoyment of life, injury to professional standing,
injury to character and reputation, injury to credit standing, and loss
of health.
In Carle v. Department of the Navy, EEOC Appeal No. 01922369 (January 5,
1993), the Commission described the type of objective evidence that an
agency may obtain when assessing the merits of a complainant's request
for emotional distress damages:
[E]vidence should have taken the form of a statement by [complainant]
describing her emotional distress, and statements from witnesses, both
on and off the job, describing the distress. To properly explain the
emotional distress, such statements should include detailed information
on physical or behavioral manifestations of the distress, information on
the duration of the distress, and examples of how the distress affected
[complainant] day to day, both on and off the job. In addition, the
agency should have asked [complainant] to provide objective and other
evidence linking...the distress to the unlawful discrimination....
Evidence may include statements from the complainant concerning his/her
emotional pain or suffering, inconvenience, mental anguish, loss of
enjoyment of life, injury to professional standing, injury to character
or reputation, injury to credit standing, loss of health, and any other
nonpecuniary losses that are incurred as a result of the discriminatory
conduct. Statements from others, including family members, friends, and
health care providers could address the outward manifestations or physical
consequences of emotional distress, including sleeplessness, anxiety,
stress, depression, marital strain, humiliation, emotional distress,
loss of self-esteem, excessive fatigue, or a nervous breakdown. Objective
evidence also may include documents indicating a complainant's actual
out-of-pocket expenses related to medical treatment, counseling, and
so forth, related to the injury allegedly caused by discrimination. In
determining damages, the agency is only responsible for those damages
that are clearly shown to be caused by the alleged discriminatory conduct,
not for any and all damages in general.
The Commission notes that damage awards for emotional harm are difficult
to determine and that there are no definitive rules governing the amount
to be awarded in given cases. In this regard, a proper award must meet
two goals: that it not be "monstrously excessive" standing alone and
that it be consistent with awards made in similar cases. See Cygnar
v. City of Chicago, 865 F.2d 827, 848 (7th Cir. 1989).
Applying the above legal standards, we agree with the AJ that complainant
provided sufficient unrebutted testimony to establish that she suffered
emotional harm as a result of the agency's discrimination. The AJ's RD
cites several instances in the record where complainant testified as to
the effect the discrimination had on her mental health. Specifically,
complainant testified at the hearing regarding the anguish she felt
over not having a job. We find that this uncontroverted evidence
establishes appellant's entitlement to compensatory damages. See Sinott
v. Department of Defense, EEOC Appeal No. 01952872 (September 19, 1996)
(stating that an appellant's own testimony, along with the circumstances
of a particular case, can establish mental or emotional harm).
In response to the agency's inquiry, complainant submitted a statement
regarding emotional distress she suffered when she was denied a
position with the agency. She states she suffered from stress, migraine
headaches and insomnia. While unemployed, she felt tremendous stress
due to financial insecurity and out of concern for her newborn child.
Complainant also stated that she suffered from emotional distress that
impacted on her new marriage. As a result, she and her husband suffered
marital strain.
Although complainant has not submitted any medical evidence in
support of her claim, we note that such evidence is not mandatory to
establish entitlement to damages. Id. In this regard, the Commission
has awarded damages in cases where there was no medical evidence.
See Pailin v. Department of Defense, EEOC Appeal No. 01954350 (January
26, 1998) ($2,500 in damages where complainant testified that she
experienced tension, depression, and withdrawal from co-workers);
Demeuse v. U.S. Postal Service, EEOC Appeal No. 01950324 (May 22, 1997)
($1,500 in damages where complainant testified as to exacerbation of
post-traumatic stress disorder); Lawrence v. U. S. Postal Service, EEOC
Appeal No. 01952288 (April 18, 1996) ($3,000 in damages where complainant
presented primarily non-medical evidence that she was irritable,
experienced anxiety attacks, and was shunned by her co-workers).
After a review of the record, we find the agency's decision to
deny complainant non-pecuniary compensatory damages was not correct.
Complainant established she suffered emotional distress as a result of
the agency's discriminatory actions. Despite the agency's position to
the contrary, complainant need not show she was �confined to a bed�
during the relevant time in order to have proven an entitlement to
compensatory damages. See FAD at 2. Taking into account Commission
precedent, complainant's evidence of emotional distress, as well as her
lack of evidence regarding the length of time she would suffer the effects
of the discrimination, we find that an award of $3,000 is appropriate.
CONCLUSION
Therefore, after a careful review of the record, including complainant's
contentions on appeal, the agency's response, and arguments and evidence
not specifically addressed in this decision, we REVERSE the agency's final
decision and direct the agency to take remedial actions in accordance
with this decision and ORDER below.
ORDER (C1199)
The agency is ORDERED to take the following remedial action:
Within thirty days from the date this decision becomes final, the
agency shall give complainant a check in the amount of $3,000 for her
non-pecuniary damages.
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 shall include supporting documentation verifying
that the corrective action has been implemented.
ATTORNEY'S FEES (H0900)
If complainant has been represented by an attorney (as defined by
29 C.F.R. � 1614.501(e)(1)(iii), he/she is entitled to an award of
reasonable attorney's fees incurred in the processing of the complaint.
29 C.F.R. � 1614.501(e). The award of attorney's fees shall be paid
by the agency. The attorney shall submit a verified statement of fees
to the agency -- not to the Equal Employment Opportunity Commission,
Office of Federal Operations -- within thirty (30) calendar days of this
decision becoming final. The agency shall then process the claim for
attorney's fees in accordance with 29 C.F.R. � 1614.501.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0900)
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 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 29 C.F.R. � 1614.409.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0900)
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 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 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).
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (R0900)
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 within ninety (90) calendar days from the date
that you receive this decision. 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:
October 31, 2000
Date
Carlton
M.
Hadden,
Acting
Director
Office of Federal Operations
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.
2The AJ found that, but for the recommendation not to hire complainant,
the complainant would have been rehired at least as a causal employee
during the relevant time.