Lester Friedlander, Complainant,v.Daniel R. Glickman, Secretary, Department of Agriculture, Agency.

Equal Employment Opportunity CommissionAug 2, 2000
01974424 (E.E.O.C. Aug. 2, 2000)

01974424

08-02-2000

Lester Friedlander, Complainant, v. Daniel R. Glickman, Secretary, Department of Agriculture, Agency.


Lester Friedlander v. Department of Agriculture

01974424

08-02-00

.

Lester Friedlander,

Complainant,

v.

Daniel R. Glickman,

Secretary,

Department of Agriculture,

Agency.

Appeal No. 01974424

Agency Nos. 95-0206; 95-0313

DECISION

INTRODUCTION

On May 13, 1997, Lester Friedlander (hereinafter referred to as

complainant) filed a timely appeal from the April 7, 1997, final

decision of the Department of Agriculture (hereinafter referred

to as the agency) concerning his 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 AFFIRMED.

ISSUE PRESENTED

The issues presented in this appeal are whether the agency properly

determined that complainant was not entitled to compensatory damages

pursuant to the settlement agreement dated April 21, 1995, and whether

the agency has adopted procedures that ensure the confidentiality of

the settlement agreement.

BACKGROUND

Complainant served as a Supervisory Veterinary Medical Officer for the

agency's Food Safety and Inspection Service until his retirement on

April 29, 1995. During his employment, complainant filed EEO complaints

alleging discrimination on the bases of national origin (Filipino),

religion (Jewish), sex, mental disability (stress), and reprisal.

On April 21, 1995, complainant and the agency entered into a Settlement

Agreement (SA), resolving all open complaints, whereby the agency agreed,

inter alia, to respect the confidentiality of the SA<2> and "to pay proven

compensatory damages in support of all formal complaints that exist as of

[April 21, 1995]."<3>

In EEOC Appeal No. 01964354 (January 29, 1997), request to reconsider

denied, EEOC Request No. 05970540 (March 18, 1999), the Commission held

that complainant's claim for compensatory damages under the SA rested on

two complaints that were pending as of April 21, 1995, i.e., No. 95-0206,

filed February 6, 1995 (denial of advanced compensatory time for a

religious observance) and No. 95-0313, filed March 13, 1995 (instructions

from his supervisor to grant longer breaks to a GS-9 Inspector).

The record reveals that complainant began his employment with the

agency in 1985 as a supervisory veterinarian and was assigned to a large

meat processing facility in Wyalusing, Pennsylvania. In August 1992,

complainant was transferred to another facility in the same area. In

April 1993, complainant filed a claim for workers' compensation benefits,

claiming stressful working conditions and the onset of depression.<4>

Pursuant to the SA, on June 20, 1995, complainant submitted his claim for

compensatory damages claiming compensation for past medical expenses,

future medical expenses, loss of overtime ($43,000), loss of earning

power, future legal expenses, and pain and suffering. In support of

his claim, complainant submitted documents showing:<5>

overtime earnings from 1988 through 1991 of approximately

$25,000-$30,000 per year;

billings and payments to doctors (psychiatrists) as follows:

two checks to Northern Tier Counseling for counseling services dated

May 23 and May 27, 1994, for $95.00 and $15.50;

billings from a psychiatrist (Dr. L) for a diagnostic interview in

the amount of $750.00, one therapy session at $150.00 for a missed

appointment, and a report for $625.00, in June 1995; and

a statement from a clinic for counseling services dated June 11, 1995,

showing one session for complainant at $82.00 on May 24, 1995, and an

outstanding balance of $872.00;

report and opinion from Dr. L dated June 30, 1995, following up on

a consultation in June 1994, stating that complainant continues to be

severely depressed and has a poor prognosis for recovery;

five receipts for drugs (Prozac, Tradzodone, and Depakote) dated

January-June 1995, only one of which shows an amount paid of $8.00; and

letters from his children, mother, brother, friend, former fianc�,

gardener, cleaner, and his daughter's school.<6>

Loss of overtime and earning power. Complainant stated that before his

transfer to another facility in August 1992, he had earned approximately

$25,000 per year in overtime and, upon his transfer, lost the opportunity

for overtime in the amount of $75,000 through the date of his resignation.

He stated that his claim for $43,000 represents the difference between the

$75,000 in lost overtime and the $32,000 payment for back pay provided

in the SA. In addition, complainant asserted that his ability to earn

his living as a veterinarian has been damaged by the agency's actions,

e.g., he is no longer dependable, has difficulty in concentrating,

and tires easily.

Legal expenses. Complainant seeks payment of legal expenses for any

future activity with regard to enforcement of the SA.

Past and future medical expenses. Complainant claims reimbursement

for past medical expenses, including a missed appointments due to his

forgetfulness, and coverage for future medical costs. Although he

stated a claim for travel and telephone, no bills or delineation of

costs were provided. The only documentation showing a need for future

medical expenses is the report of Dr. L, which notes that his prognosis is

"poor."

Pain and suffering. The report from Dr. L noted that complainant had

been treated for depression since 1992 and that his illness has remained

constant since that time. Also, Dr. L stated that complainant continued

to complain about his transfer in 1992, stating that it was unfair and

humiliating. In his personal statement, complainant blamed the agency

for problems he experienced at work, i.e., overwork, harassment, poor

staffing, working conditions, and lack of cooperation from supervisors.

He states that he experienced "extreme stress" for several years prior

to August 1992 that carried through into his new assignment and which

aggravated his extant mental and physical illnesses. Statements from

relatives and friends attest to complainant's depressed condition,

although most refer to complainant's problems as manifesting around the

time of his job transfer in August 1992.

The agency's FAD denied complainant's claim for pecuniary damages on the

grounds that he failed to provide evidence linking any medical conditions

to his work environment within the violation period of the two complaints.

Also, the agency found that complainant's claim for future medical costs

and earnings was unproven and speculative. With regard to his claim

for nonpecuniary damages, the agency found that complainant failed to

show harm or losses in relation to the two open complaints.

In his appeal, complainant contends that he submitted sufficient

evidence in support of his claim for pecuniary and non-pecuniary damages.

He states that the SA resolved Complaint Nos. 95-0206 and 95-0313 and that

the agency was obliged "to pay proven compensatory damages in support

of all complaints." Further, he argues that he established a causal

connection between his condition, which impedes his ability to function

effectively, and the agency's conduct. Complainant reasserts his claim

for lost wages and non-pecuniary damages for pain and suffering.

ANALYSIS AND FINDINGS

Legal Standards

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. The Commission has held that compensatory damages

are recoverable in the administrative process, including resolutions

by settlement. West v. Gibson, 119 S.Ct. 1996 (1999); see Jackson

v. USPS, EEOC Appeal No. 01923399 (November 12, 1992), req. to reopen

den., EEOC Request No. 05930306 (February 1, 1993); see also Turner

v. Department of the Interior, EEOC Appeal No. 01956390 April 28, 1998)

and Bever v. Department of Agriculture, EEOC Appeal No. 01953949 (October

31, 1996). Compensatory damages are 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. N915.002 (July 14, 1992)

(Notice) at 8. Compensatory damages are not available for discriminatory

activity occurring prior to November 21, 1991, the effective date of

the CRA. Laverdure v. Interior, EEOC Request No. 05931186 (June 17,

1994).

In a claim for compensatory damages, a complainant must demonstrate

through appropriate evidence and documentation the harm suffered as a

result of the agency's discriminatory action; the extent, nature, and

severity of the harm 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). Objective evidence

in support of a claim for pecuniary damages includes documentation showing

all actual, out-of-pocket expenses with an explanation of the expenditure

and, for nonpecuniary claims, statements from the complainant and

others, including family members, co-workers, and medical professionals.

Notice at 9; Carle v. Department of the Navy, EEOC Appeal No. 01922369

(January 5, 1993).

Awards are limited to compensation for the actual harm suffered as a

result of the agency's discriminatory act. See Carter v. Duncan-Higgins,

Ltd., 727 F.2d 1225 (D.C. Cir. 1984); Notice at 13. The agency is only

responsible for those damages that are clearly shown to be caused by

the agency's discriminatory conduct. Carle v. Department of the Navy,

supra; Fazekas v. USPS, EEOC Appeal No. 01954627 (April 7, 1997); see

also Johnson v. Department of Interior, EEOC Appeal No. 01961812 (June

18, 1998). To recover damages, the complainant must prove that the

employer's discriminatory actions were the cause of the pecuniary loss.

Notice at 8.

Complainant's Claim

At issue before us is the amount of compensatory damages recoverable

by complainant as a result of the agency's actions described in the

complaints that were open as of April 21, 1995, that is, Complaint

No. 95-0206, filed on February 6, 1995, alleging discrimination when

complainant was denied advanced compensatory time for a religious

observance, and Complaint No. 95-0313, filed on March 13, 1995, alleging

discrimination when, in October 1994, complainant was instructed to grant

longer breaks to a GS-9 Inspector. Complainant's claim, therefore,

must demonstrate that the losses claimed were incurred as a result

of the employer's discriminatory actions when he was denied advanced

compensatory time for a religious observance and when, in October

1994, he was instructed to grant longer breaks to a GS-9 Inspector.

In support, complainant must submit evidence that demonstrates an injury

and establishes that the injury was caused by the actions of the agency

as described in those two complaints.

Complainant's submissions in support fall short of the type of

proof required. Ronney v. USPS, EEOC Appeal No. 01943504 (September

29, 1994). His claim consists of a very general personal statement

without reference to the 1995 complaints, does not contain complete

documentation for medical and other pecuniary claims, and most of the

amounts claimed are not explained. See Carle v. Department of the Navy,

supra. For example, complainant submits copies of checks and bills for

counseling/therapy services, some of which are dated one year prior

to the extant complaints, but he does not explain who was counseled,

the date and amount charged for each visit, and the connection to the

actions stated in the 1995 complaints. Further, complainant's statement

and the narrative documentation emphasize complainant's 1992 transfer and

events preceding that event and seem to point to them as precipitating

events to his condition, and none of these documents mention the events

stated in the 1995 complaints.

In making his claim for compensatory damages, it is complainant's

responsibility to demonstrate that he was harmed as a result of

the agency's discriminatory actions, and he must show the extent,

nature, and severity of that harm, the duration of that harm, and,

most significantly, the link or connection of his distress to the

agency's unlawful discrimination. Fazekas v. USPS, supra. At no time

does complainant explain the connection of his claims to the events

described in the 1995 complaints. While some of his bills show dates

after these events, complainant fails to demonstrate a connection to them.

Further, it appears that counseling/therapy services have been rendered

to complainant since at least 1992, and complainant has not explained

the impact of the events in the 1995 complaints on his condition.

Notice at 11; Smith v. Department of Defense, EEOC Appeal No. 01943844

(May 9, 1996). We conclude, therefore, that complainant is not entitled

to compensatory damages based on his claims addressed herein.

Further, complainant is not entitled to damages for relief recoverable

under �706 of Title VII, 42 U.S.C. �2000e-5(g). Notice at 6. For this

reason, complainant may not recover damages for loss of overtime and

earning power, as these are not compensatory damages.

Our conclusion that complainant is not entitled to compensatory damages is

not meant to diminish or dismiss complainant's suffering. In determining

entitlement to compensatory damages, the Commission must limit awards to

harm caused by the discriminatory action of the agency. Here, complainant

has not carried his burden to demonstrate the harm suffered as a result

of the agency's actions described in the two 1995 complaints. Where an

complainant fails to establish that his monetary losses and mental and

emotional distress were caused by the agency's discriminatory action, he

is not entitled to an award of compensatory damages for the alleged harm.

See Leperi v. Department of Agriculture, EEOC Appeal No. 01964107 (April

2, 1998) (recovery denied where no medical documentation submitted and

physicians failed to link conditions to work situation).

CONCLUSION

Accordingly, the agency's decision was proper and is AFFIRMED.

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:

______________________________

Carlton M. Hadden, Acting Director

Office of Federal Operations

__08-02-00________________

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.

2In EEOC Appeal No. 01964354 (January 29, 1997), the agency, in part,

was directed to develop procedures to ensure that the confidentiality

provisions of the SA were respected. In the final agency decision at

issue herein (FAD), the agency found that it had established procedures

sufficient to insure the confidentiality of complainant's privacy with

respect to the SA. Complainant has not presented argument with regard

to this portion of the FAD.

3In addition, the agency agreed to submit information "in support of"

his claim for workers' compensation benefits to the Office of Workers'

Compensation Programs (OWCP); to pay complainant $32,000 in back pay; to

pay reasonable attorney's fees; to issue a fully successful performance

rating; and to expunge any adverse actions from his official files.

These terms have been satisfied, including the payment of attorney's fees.

See EEOC Appeal No. 01960090 (April 24, 1966).

4Complainant currently receives wage replacement workers' compensation

benefits and medical expenses.

5For reasons unclear in his submission, complainant also submits copies

of three notices for checks returned for insufficient funds in June 1995

and documents showing a proposed tax sale on his house dated June 1,

1995 for tax year 1993 and February 17, 1994 for tax year 1992.

6The record shows that, in about 1990, complainant was divorced, and he

retained custody of his three children.