01972099
03-07-2000
Leonard S. Winston, Complainant, v. Daniel R. Glickman, Secretary, Department of Agriculture, Agency.
Leonard S. Winston v. Department of Agriculture
01972099
March 7, 2000
Leonard S. Winston, )
Complainant, )
) Appeal No. 01972099
v. ) Agency No. 95-0613
)
Daniel R. Glickman, )
Secretary, )
Department of Agriculture, )
Agency. )
)
DECISION
INTRODUCTION
Complainant filed a timely appeal with this Commission challenging the
final decision of the Department of Agriculture (agency) on compensatory
damages concerning his complaint of discrimination in violation of
Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. �
2000e et seq; and the Age Discrimination in Employment Act of 1967,
as amended, 29 U.S.C. � 621 et seq. The appeal is accepted in accordance
with EEOC Order No. 960.001.
ISSUE PRESENTED
The issue on appeal is whether the agency's final decision properly
determined that complainant was entitled to an award of compensatory
damages in the amount of $13,350.00 for the agency's previous finding
of race discrimination.
BACKGROUND
On April 25, 1995, the agency issued a decision finding that complainant
was discriminated against because of his race when he was not selected
for a county supervisor position in Jackson, North Carolina, on March 30,
1992. As a remedy, the decision provided for the payment of substantiated
compensatory damages based on objective evidence. On June 7, 1995,
complainant submitted a claim for compensatory damages totaling $200,000
as follows:
Inconvenience $ 12,254.00
Emotional Distress/Loss of Enjoyment of Life $ 19,097.00
Physical Pain and Suffering/Medical Expenses $ 2,400.00
Future Pecuniary Losses $ 3,000.00
Mental Anguish $ 163,249.00
Following complainant's submission of supplemental information and
a formal investigation of complainant's compensatory damages claim,
the agency issued complainant an award of $13,350.00 for compensatory
damages in a final decision dated December 9, 1996. On March 6, 1997,
after receiving a check in the amount of the damages awarded, complainant
informed the agency that he was returning the check because he had chosen
to appeal the December 9, 1996, agency decision.
In its final decision, the agency essentially determined that
complainant's request for compensatory damages in the amount of
$200,000 was unsubstantiated by the evidence submitted by complainant.
Based on the evidence submitted by complainant, the agency concluded
that complainant was entitled to nonpecuniary damages in the amount
of $5,850.00 for "inconvenience" and the sum of $7,500.00 for his
emotional distress, loss of enjoyment of life, worry, mental anguish,
apprehension and anxiety, loss of self-esteem, depression, embarrassment,
and frustration suffered as a direct cause of the discriminatory personnel
action. The agency denied complainant's request for out-of-pocket medical
expenses in the amount of $2,400.00 and also denied complainant's claim
for future pecuniary losses (loss of career opportunities) in the amount
of $3,000.00.
On appeal, complainant "vehemently disagrees" with the agency's award and
contends that his compensatory damages claim was more than substantiated
by his June 7, 1995, letter regarding damages, and his February 6,
1996, eighteen page affidavit. Moreover, complainant states that the
agency's award for "inconvenience" does not consider the time required
to commute from his home to work. In addition, complainant asserts
that his testimony and supplemental medical documentation regarding his
medical expenses is sufficient evidence to substantiate his claim for
out-of-pocket expenses in the sum of $2,400.00. Finally complainant
asserts his disagreement with the agency's $7,500.00 award for emotional
distress, loss of enjoyment of life, etc. Complainant argues that
notwithstanding the agency's finding of discrimination, the agency's
compensatory damages award suggests a refusal to accept accountability
for the discrimination.
In support of his compensatory damages claim, complainant submitted
his affidavit dated February 6, 1996, and a letter dated June 7, 1995.
Complainant also provided copies of his medical claims from his insurance
provider for the period of September 30, 1993, through June 1, 1995.
ANALYSIS AND FINDINGS
Section 102(a) of the Civil Rights Act of 1991 (CRA 1991), 105 Stat. 1071,
Pub. L. No. 102-166, codified as 42 U.S.C. �1981A, authorizes an award
of compensatory damages as part of make-whole relief for intentional
discrimination in violation of Title VII, of the Civil Rights act of
1964 as amended. EEOC Notice No. N 915.002 at 8 (July 14, 1992); West
v. Gibson, 119 S.Ct. 1906 (1999); see also Jackson v. U.S. Postal
Service, EEOC Appeal No. 0192399 (November 12, 1992), request for
reconsideration denied, EEOC Request No. 05930306 (February 1, 1993);
Turner v. Department of the Interior, EEOC Appeal Nos. 01956390 and
01960518 (April 27, 1998); and Feris v. EPA, EEOC Appeal No. 01983167,
(September 18, 1998). Section 1981A (b)(2) indicates that compensatory
damages do not include back pay, interest, on back pay, or any other
type of equitable relief authorized by Title VII.
"[C]ompensatory damage awards must be limited to the sums necessary
to compensate [a complainant] for actual harm, even if the harm is
intangible." Id. at 13 (citing Carter v. Duncan-Higgins, Ltd., 727
F. 2d 1225 (D.C. Cir. 1984)). Thus, a compensatory damages award should
reimburse a complainant for proven pecuniary losses, future pecuniary
losses, and nonpecuniary losses.
The seminal Commission decision regarding the proof of entitlement
to compensatory damages is Carle v. Department of Navy, EEOC Appeal
No. 01922369 (January 5, 1993). In Carle, 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.
Objective evidence could 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, health care providers, other counselors
(including clergy) 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.
As noted above, the agency should advise the complainant that she/he
must establish a connection between the alleged discriminatory action
and the resulting injury. 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."
See also Bever v. Department of Agriculture, EEOC Request No. 0195394
(October 31, 1996).
Complainant's claim for compensatory damages involves both pecuniary and
non-pecuniary losses. Pecuniary losses are out-of pocket losses that
occurred prior to the date of resolution of the damage claim and those
out-of pocket losses that are likely to occur after conciliation of the
claim. Non-pecuniary losses are losses that are not subject to precise
quantification, i.e. 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. EEOC Notice No. N 915.002 at 10 (July 14, 1992).
Medical Expenses
Complainant asserts that he is entitled to $2,400.00 for out-of-pocket
medical expenses. In support of his assertions he submitted a copy of
his insurance claim forms showing his medical expenses for the relevant
years in question (May 1992-September 1995)and his testimony that he
had to be hospitalized twice during this period. We find complainant's
testimony and medical evidence did not provide the requisite proof of a
connection between the agency's action and complainant's medical expenses.
In support of our finding, we note that neither the insurance claim
forms nor complainant's testimony provide any evidence that the submitted
expense records were related to a medical condition that resulted from the
agency's discriminatory personnel action. For instance, complainant's
insurance claim forms do not contain a diagnosis or any explanation as
to what kind of medical treatment complainant received or why medical
treatment was needed.
Travel Expenses
The Commission agrees with the agency's calculation of its award of
$5,850.00 to complainant for additional travel expenses he incurred
as a result of the agency's discriminatory actions. Complainant is
entitled to be compensated for the additional 26 miles, or difference
between Henderson and Jackson, North Carolina. Additionally, we find
that the agency correctly determined that complainant was not entitled
to the mileage and time required to commute to the Henderson work site
from his home.
Loss of Opportunity for Career Advancement
Complainant also asserts that he is entitled to $3,000.00 for future
pecuniary losses resulting from the agency's actions. Complainant
explains that these losses consist of his "loss of career opportunities
and his loss of opportunities for career advancement." He further
opines that his entitlement to these damages may be inferred from the
career advancement of the person selected (selectee) for the County
Supervisor position that complainant was denied. Complainant argues
that both he and the selectee were GS-9s prior to the selection. The
promotion resulted in the selectee's advancement to the GS-11 County
Supervisor position. The selectee served in this position for one year
and requested military leave for approximately one year to attend school.
Upon completion of school, the selectee returned to the agency and was
assigned to the agency's state office as a Farmer Program Specialist.
The selectee is presently a GS-12 Loan Resolution Task Force Specialist.
Complainant contends that absent the discriminatory personnel action,
he would have similarly risen to a GS-12 level.
Based on the evidence before us, the Commission finds that complainant
is not entitled to future pecuniary losses in the sum of $3,000.00.
First, we note that future pecuniary losses are out-of-pocket expenses
that are likely to occur after conciliation or conclusion of this claim.
For example, moving expenses, job search expenses, medical expenses,
psychiatric expenses, physical therapy expenses, and other quantifiable
out-of pocket expenses that are likely to occur as a result of the
discriminatory conduct. Therefore, we find that complainants claim
for loss of future career opportunities is not a compensatory damage
claim but is an equitable relief claim. The Commission has found that
"the remedy to which a complainant is entitled included subsequent
promotions which the complainant would likely have received had he or
she received the position directly in issue at the time of the original
selection." Rai v. Dept. of Interior, EEOC Request No. 05880596 (August
12, 1988); Alexander v. HUD, EEOC Request No. 05940482 (September 21,
1995). However, we find that complainant has not presented any evidence
showing that subsequent promotions would have normally occurred during the
time since complainant's discriminatory nonselection in September 1995.
Moreover, we find complainant's assertions on this issue too speculative
to warrant any claim for entitlement to such damages.
Emotional Distress, Loss of Enjoyment of Life and Mental Anguish
We find that complainant's testimony regarding the emotional distress
that he suffered, loss of enjoyment of life was sufficient to support
his entitlement to nonpecuniary damages. The Commission has found that
evidence of emotional distress may be established by the complainant's own
testimony and consideration of the circumstances of a particular case.
However, the lack of expert testimony can affect the amount of damages
awarded. Lawrence v. United States Postal Service, Appeal No. 01952288
( April 18, 1996); see also, Carpenter v. Department of Agriculture,
EEOC Appeal No. 01945652 (July 17, 1995). Considering the circumstances
of this case and the evidence submitted by complainant, we find that
the agency's award of $7,500.00 is adequate to remedy the discrimination
suffered by complainant.
The issue in this case concerns a discriminatory nonselection. However,
in support of his request for compensatory damages for mental anguish,
complainant asserts that the agency allegedly had knowledge that the
responsible official in this action discriminated against other Black
employees and that agency officials refused to act upon their knowledge
and thereby prevent the harm that occurred in the instant action.
As we stated earlier in this decision, 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. Rountree v. Department of Agriculture, EEOC
Appeal No. 01941906 (July 7, 1995), affirmed, EEOC Request No. 05950919
(February 15, 1996). We find that complainant's testimony regarding
mental anguish does not provided sufficient grounds to add to his award.
Finally, we note that complainant's affidavit states that he suffered
frustration while participating in the EEO process. The Commission
finds that complainant would not be entitled to compensatory damages
caused by the stress of participating in the EEO process. See Appleby
v. Department of the Army, EEOC Appeal No. 01933897 (March 4, 1994)
(compensatory damages were added to statutes to address the agency's
discriminatory treatment of an employee, not how the agency processes
an EEO complaint during the administrative process).
In determining the amount of a compensatory damages award, we are guided
by the principle that a compensatory damages award is limited to the sums
necessary to compensate complainant for the actual harm caused by the
agency's discriminatory action and attempt to affix a reasonable dollar
value to compensate him for that portion of his emotional distress that
was caused by the agency's discrimination. EEOC Notice No. N 915.002
at 13.
We further note 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, the Commission finds
that 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); EEOC v. AIC Security Investigations, Ltd., 823 F. Supp. 571,
574 (N.D. Ill. 1993).
There have been recent Commission decisions awarding nonpecuniary
damages for emotional harm similar to that experienced by complainant.
In Lawrence v. United States Postal Service, EEOC Appeal No. 01952288
(April 18, 1996), the Commission authorized an award of $3,000 in
compensatory damages for emotional harm where complainant averred that
she suffered from weight loss, nausea, stomach problems and headaches
as a result of sexual harassment and the agency's failure to respond
promptly to her allegations. In White v. Department of Veterans Affairs,
EEOC Appeal No. 01950342 (June 13, 1997), the Commission ordered an award
of $5,000 in nonpecuniary damages where the complainant's testimony and
his psychologist's report indicated that the harassment that complainant
endured, which took both sexual and nonsexual forms, led complainant to
suffer from anxiety, depression, emotional fatigue, occasional nightmares,
and insomnia.
Also, in Rountree v. Department of Agriculture, EEOC Appeal No. 01941906
(July 7, 1995), affirmed, EEOC Request No. 05950919 (February 15, 1996),
the Commission ordered an award of $8,000 in nonpecuniary damages where
the complainant's statement and psychologist's report indicated that some
of the complainant's emotional distress, including feelings of inadequacy,
failure, and depression, were the result of a discriminatory performance
appraisal and the denial of bonus pay based on that appraisal.
Having carefully considered the facts of this case, the Commission
finds that the agency's award of $13,350.00 in compensatory damages is
a proper award for the emotional harm and out-of pocket expense which
complainant has suffered as a result of the discriminatory action in
this case. In reaching this amount, the Commission has considered
a number of factors. For example, we considered the nature and
severity of the discrimination, as well as the nature and severity of
complainant's emotional pain and suffering. We considered the scant
amount of evidence concerning complainant's emotional distress, loss
of enjoyment of life, mental anguish and related symptoms, and the lack
of objective evidence supporting his emotional harm. Additionally, we
considered the amounts awarded in similar cases. Accordingly, based on
the foregoing, the agency's decision awarding complainant compensatory
damages in the amount of $13,350.00 is affirmed.
ORDER (D1199)
The agency is ORDERED to take the following action:
If it has not already done so, the agency shall pay complainant the
sum of $13, 350.00 within sixty calendar days of the date this decision
becomes final.
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 (M1199)
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). 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 (R1199)
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:
March 7, 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 after it was mailed. I certify
that this decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
_______________________
Date
__________________________
Equal Employment Assistant