Leonard S. Winston, Complainant,v.Daniel R. Glickman, Secretary, Department of Agriculture, Agency.

Equal Employment Opportunity CommissionMar 7, 2000
01972099 (E.E.O.C. Mar. 7, 2000)

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