Kathy L. Teal, Complainant,v.William J. Henderson, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionJul 26, 2000
01991097 (E.E.O.C. Jul. 26, 2000)

01991097

07-26-2000

Kathy L. Teal, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.


Kathy L. Teal v. United States Postal Service

01991097

July 26, 2000

Kathy L. Teal, )

Complainant, )

)

v. ) Appeal No. 01991097

) Agency No. 4F-2722-93

William J. Henderson, )

Postmaster General, )

United States Postal Service, )

Agency. )

)

DECISION

On November 18, 1998, Kathy L. Teal (hereinafter referred to as

complainant) filed a timely appeal from the October 27, 1998, final

decision of the United States Postal Service (hereinafter referred

to as the agency) 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. The appeal is timely filed (see 64

Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter referred

to as 29 C.F.R. � 1614.402(a)))<1> and is accepted in accordance with

64 Fed. Reg. 37,644, 37,659 (to be codified as 29 C.F.R. � 1614.405).

For the reasons that follow, the agency's decision is MODIFIED.

The issue presented in this appeal is whether the agency properly

determined the amount of compensatory damages due to complainant.

In EEOC Appeal No. 01960092 (June 18, 1998), the Commission found

that the agency discriminated against complainant on the bases of

race/color and reprisal.<2> The AJ found that the Postmaster (PM) at

the agency's Livermore, California, facility "subjected (complainant)

to harassment at work in an effort to force her from her position."

(RD, p. 2). Complainant worked for the agency since 1976 and became a

supervisor at Livermore in 1987. She worked under the PM's supervision

from January 1993, when he was assigned to Livermore, through December

1993, when she was detailed to another facility. From January 1994, she

was on disability leave for nine months due to stress, and since then has

worked as a relief supervisor in several positions at multiple facilities.

We described complainant's claims against the PM as follows:

(Complainant) alleged that the PM harassed her through intimidation,

disparaging and demeaning treatment, and verbal abuse. In particular,

she stated that he gave conflicting instructions, undermined her actions,

constantly changed her schedule, threatened her with loss of her position,

and gave her additional job duties and responsibilities. (Complainant)

also alleged that the PM's discussion of personal sexual matters with

her and his demonstrated favoritism towards another female supervisor

(Hispanic) [sic] (E1) created a hostile environment based on sex.

(Complainant) indicated that the PM's conduct inflicted severe emotional

distress and anxiety, which caused her to seek medical attention, to

file a claim for workers' compensation, and to use extensive sick leave

and leave without pay (LWOP).

The Commission ordered, inter alia, that the agency consider complainant's

claim for compensatory damages by requesting objective evidence from

her with an explanation of the information and documentation required.

The agency was required to request such information within 30 days and

issue its determination within 60 days of complainant's submission.

The agency conducted a supplemental investigation with regard to

complainant's claim for compensatory damages and issued a final agency

decision (FAD) on October 27, 1998, awarding complainant $3,920 in past

pecuniary damages and $15,000 in non-pecuniary damages. Although the

FAD recited the evidence supplied by complainant, it did not explain

the basis for the amount of its award for non-pecuniary damages.

The Civil Rights Act of 1991 (CRA) authorizes awards of compensatory

damages as relief for intentional discrimination in violation of

Title VII. 42 U.S.C. �1981a. Compensatory damages are recoverable in

the administrative process. West v. Gibson, 119 S.Ct. 1996 (1999);

see Jackson v. USPS, EEOC Appeal No. 01923399 (November 12, 1992),

req. to recon. den., EEOC Request No. 05930306 (February 1, 1993).

Compensatory damages may be awarded for losses and suffering due to the

discriminatory acts or conduct of the agency and include past pecuniary

losses, future pecuniary losses, and non-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. N9152 (July 14, 1992)

(Notice) at p. 8.

Pecuniary Compensatory Damages: Complainant claimed $3,920 in

pecuniary damages, and the agency agreed; she does not dispute the

amount awarded.<3> Accordingly, we affirm that portion of the agency's

decision.

Non-pecuniary Compensatory Damages: With regard to non-pecuniary

compensatory damages, complainant appeals the agency's award, arguing that

the extent, severity, and egregious nature of the agency's discriminatory

actions merited a higher amount, and she claimed $300,000 in such damages.

Complainant presented medical documentation and reports demonstrating

that she suffered physical and mental symptoms beginning in March

1993, including anxiety, depression, loss of sleep, backaches, muscle

cramps, and deterioration of occupational functioning. Several medical

professionals submitted reports describing her stress and stress-related

symptoms and the need for medication and therapy, diagnosing her as

having an adjustment disorder with mixed emotional and physical aspects.

In addition, her husband of almost 30 years attested to the onset of

complainant's depressed emotional state due to the treatment of the

PM and resulting work-related stress. He also stated that previously,

complainant had been happy and enjoyed her work. Finally, complainant

submitted a lengthy statement, noting numerous specific incidents of

harassment from the PM's arrival in January 1993. She also noted that

she was disabled for nine months from January 1994, and thereafter worked

an erratic schedule as a substitute supervisor.<4> She stated that she

continued her therapy through at least May 1995.

In claiming an award of compensatory damages, a complainant must

demonstrate through appropriate evidence and documentation that she

has been harmed as a result of the agency's discriminatory action;

the extent, nature, and severity of the harm that she suffered; and the

duration or expected duration of the harm. Rivera v. Department of the

Navy, EEOC Appeal No. 01934156 (July 22, 1994), req. to recon. den.,

EEOC Request No. 05940927 (December 11, 1995); Notice at 11-12, 14; see

also, Carpenter v. Department of Agriculture, EEOC Appeal No. 01945652

(July 17, 1995). An award of compensatory damages for non-pecuniary

losses, including emotional harm, should reflect the extent to which the

agency's discriminatory action directly or proximately caused the harm

and the extent to which other factors also caused the harm. See Johnson

v. Department of Interior, EEOC Appeal No. 01961812 (June 18, 1998).

Also, the amount of an 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);

EEOC v. AIC Security Investigations, Ltd., 823 F. Supp. 571, 574

(N.D. Ill. 1993).

The Commission seeks to make damage awards for emotional harm consistent

with awards in similar cases. Taking into account the nature, severity,

and duration of harm, the Commission has approved awards of non-pecuniary

compensatory damages in several cases where the complainant was subject to

harassment. See Chow v. Department of the Army, EEOC Appeal No. 01981308

(August 5, 1999) ($100,000 for physical and mental suffering due to

supervisor's harassment); Carpenter v. Department of Agriculture, EEOC

Appeal No. 01945652 (July 17, 1995) ($75,000 for non-pecuniary damages in

order to compensate the complainant for the deterioration of her medical

and emotional condition); Finlay v. United States Postal Service, EEOC

Appeal No. 01942985 (April 29, 1997) ($100,000 in non-pecuniary damages

to compensate for severe psychological injuries over four years); and

Santiago v. Department of the Army, EEOC Appeal No. 01955684 (October 14,

1998) ($125,000 in non-pecuniary damages for severe emotional distress

after her removal).

Given the severity of the psychological and physical harm experienced by

complainant, the egregiousness of the discriminatory acts, the duration

of the harassment and period of time complainant was incapacitated,

and awards made by the Commission in similar cases, we find that

complainant is entitled to non-pecuniary damages in the amount of $95,000.

Our determination considers the emotional and physical symptoms described

by the complainant and medical professionals, is not motivated by passion

or prejudice, is not monstrously excessive, and is not inconsistent with

amounts awarded in similar cases. See Cygnar v. City of Chicago, 865

F.2d 827, 848 (7th Cir. 1989); and EEOC v. AIC Security Investigations,

Ltd., 823 F. Supp. 573, 574 (N.D. I11. 1993).

CONCLUSION

Accordingly, the agency's decision is AFFIRMED, in part, and REVERSED,

in part. The agency is directed to comply with the Order, below.

ORDER

The agency is ordered to take the following remedial actions:

A. Within thirty (30) days of the date this decision is received, if it

has not already done so, the agency shall issue a check to complainant

for $3,920 for proven pecuniary compensatory damages.

B. Within sixty (60) days of the date this decision is received,

the agency shall issue a check to complainant for $95,000 for proven

non-pecuniary compensatory damages.

C. Within thirty (30) days of the date this decision is received,

the complainant shall submit to the agency (not to the Commission) a

verified statement in support of attorney's fees for pressing her claim

for compensatory damages, including attorney's fees incurred for this

appeal, if any. Within twenty (20) calendar days of the date of receipt

of the verified statement, the agency shall issue to the complainant a

determination on the amount of attorney's fees along with a check for

the sum the agency determines as being appropriate in accordance with

the Commission's regulations. The agency's determination shall include a

notice of right to appeal the determination to the Commission; specific

reasons for determining the amount of the award; and a notice that the

complainant may cash the check for the awarded sum of attorney's fees

without prejudice to her right to appeal the award to the Commission.

D. Within thirty (30) days of its payments to complainant, the agency

shall submit copies of the checks for compensatory damages to the

Compliance Officer, as referenced below.

ATTORNEY'S FEES (H1199)

If complainant has been represented by an attorney (as defined by 64

Fed. Reg. 37,644, 37,659-60 (1999) (to be codified and hereinafter

referred to as 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 (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).

COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (S1199)

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:

07-26-00

Date Carlton 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

1On 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 Commission's decision affirmed the Recommended Decision (RD) of the

Administrative Judge in EEOC Hearing Nos. 370-94-X2504 and 370-94-X2505.

3In addition, complainant argued that she was entitled to interest

based on the agency's failure to timely implement the relief ordered

and as part of her claim for make-whole relief. We find however that

the agency acted within a reasonable period from the date of our Order.

Also, complainant did not seek future pecuniary damages for further

medical or psychological treatment.

4In a letter dated May 21, 1999, the agency reported that complainant

had been assigned to the Fremont, California, facility. It is not clear,

however, whether this assignment is a permanent one and when it occurred.

The Commission is seeking further information from the agency. See EEOC

Petition No. 04990026, issued simultaneously with the instant Decision.