01955684
10-15-1998
Lourdes Santiago, Appellant, v. Louis Caldera, Agency No. 91-10-0020 Secretary, 340-93-3259X Department of the Army, Agency.
Lourdes Santiago, )
Appellant, )
)
v. )
) Appeal No. 01955684
Louis Caldera, )
Agency No. 91-10-0020
Secretary, ) Hearing No.
340-93-3259X
Department of the Army, )
Agency. )
)
DECISION
On July 25, 1995 appellant filed an appeal with this Commission from
a final decision of the agency dated June 29, 1995 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. and the Age Discrimination in Employment Act of 1967 (ADEA), as
amended, 29 U.S.C. �621 et seq. The appeal is accepted in accordance
with 29 C.F.R. �1614.401.
ISSUES PRESENTED
Whether the agency awarded appellant the appropriate amount of
compensatory damages following its finding of discrimination, and whether
it otherwise fully remedied appellant.
BACKGROUND
Appellant was employed with the agency's U.S. Corps of Engineers,
Los Angeles District, as a program analyst, GS-7. Following a hearing
before an Equal Employment Opportunity Commission (EEOC) Administrative
Judge (AJ), the AJ found that because appellant was an elderly woman,
appellant's supervisor, from almost the start of his tenure in October
1989, publicly humiliated and berated appellant, called her derogatory
and highly offensive names, and questioned her competence on a virtually
daily basis, often in front of other employees. For example, the
supervisor would stand over appellant while she worked, yell, and bombard
her with sarcastic and crushing remarks. He frequently found fault
in appellant's work and talked down to her in a rude and harsh tone.
Further, when appellant asked for assistance, the supervisor would
respond with "some debilitating remark" or just scream. His demeanor
with appellant was described as intimidating and almost vengeful.
The AJ found that this harassment continued until appellant was removed
in February 1993.
The AJ found that the agency's refusal to grant appellant's requests for
transfers away from her supervisor constituted reprisal discrimination.
Further, the AJ found that the supervisor discriminatorily refused to
grant appellant leave requests and refused to allow her to go home when
she was ill.
The AJ found that appellant was discriminated against when she was not
provided an appraisal in 1990 and 1991, was placed on GS-9 performance
standards and an unacceptably demanding individual development plan
(IDP), and was given a Notice of Unacceptable Performance on December 12,
1991 which placed her on a Performance Improvement Plan. The AJ found
that the supervisor repeatedly counseled appellant insisting that she
complete reports, re-do reports, get information immediately, respond in
writing and so forth in a transparent discriminatory attempt to ensure
appellant's failure in her position. The AJ held that appellant was
discriminated against on the bases of her sex, age, and EEO activity.
The AJ did not find discrimination on the bases of race or national
origin. The AJ found no discrimination with regard to appellant not
receiving a promotion to GS-9.
At the time of the hearing, appellant had an appeal pending before the
Merit Systems Protection Board (MSPB) regarding her performance based
removal of February 1993. The AJ found that since her removal was not
an issue before the EEOC, her entitlement to damages after the removal
was within the jurisdiction of the MSPB.
The AJ held a separate hearing to take evidence on appellant's claim that
she sustained compensatory damages as a result of the discrimination.
After noting that there was a $300,000 cap on future pecuniary losses
and nonpecuniary losses, and that damages are available only for
discriminatory occurrences on or after November 21, 1991, the AJ found
that appellant was entitled to nonpecuniary damages "to the fullest
extent permitted by law." The AJ stated that this was for the emotional
and psychological distress and physical illness appellant sustained from
November 21, 1991 to the date appellant was removed, which the record
shows was February 12, 1993. In awarding these nonpecuniary damages,
the AJ credited the opinion of appellant's treating psychologist that her
emotional injuries were caused by the agency's actions, and credited the
testimony of appellant and her husband that after the agency's actions
appellant's life changed in that she became socially withdrawn, was very
worried, did not want to eat, and did not do housework or cook.
The AJ also found that the appellant's pecuniary losses were caused by
the agency's actions. The AJ found that the agency should compensate
appellant for medical bills from November 21, 1991 to the date she was
removed. The AJ stated that the prescription drugs and registration
fees from appellant's health plan added up to $57.50. The AJ did not
compensate appellant for the medical expenses of her private physician
outside her health plan and psychologist because they were incurred
after appellant was removed. The AJ also recommended various equitable
remedies.
In a final decision dated November 23, 1994, which did not contain appeal
rights to the EEOC, the agency adopted the AJ's discrimination findings.
It agreed with the AJ's finding that appellant sustained past pecuniary
losses as a result of the discrimination and was entitled to reimbursement
of the above expenses from her health plan. The decision found that
appellant sustained nonpecuniary losses, but stated a decision on the
amount would be held in abeyance for 60 days. It also provided equitable
remedies. The decision stated that the agency would determine whether the
recision of the removal action was necessitated by the cancellation of the
notice of unacceptable performance, and if so, appellant would be returned
to her position and provided back pay and restoration of benefits.
By January 20, 1995, the agency determined that the removal action must be
rescinded, and that appellant was entitled to claim compensatory damages
for the removal since she had properly raised the matter before the MSPB.
It provided appellant an opportunity to submit additional evidence on
compensatory damages. After the appellant did so, the agency issued a
second final decision in June 1995 on appellant's compensatory damages
claim. It found that as a result of its discrimination, appellant
sustained emotional pain and suffering, mental anguish, marital strain,
depression, isolation, and a variety of physical ailments, including
chest and stomach pains and digestive problems. It found, however,
that appellant was not entitled to any past or future pecuniary damages.
It reasoned that it could not determine whether they were covered by
health insurance, and with regard to future expenses, no total amount or
objective proof was provided. The agency found, however, that appellant
was entitled to $85,000 in nonpecuniary damages.
The agency paid the $85,000 sum to appellant, restored her leave,
provided training to 145 of 148 supervisors with imminent plans to train
the rest, and issued unstated discipline against appellant's first and
second level supervisors. The record does not reflect whether back pay
was provided to appellant.
Both of the agency's final decisions included notices of a right to file
a claim for attorney's fees and costs. The agency awarded attorney's
fees for the work of at least one of appellant's attorneys.
ANALYSIS AND FINDINGS
Because appellant does not appeal the agency's findings with regard to
discrimination but appeals the amount of compensatory damages it awarded,
the issue before us is limited to the appropriateness of the amount of
compensatory damages awarded as well as certain equitable remedies.
Section 102(a) of the Civil Rights Act of 1991, codified as 42
U.S.C. �1981a, authorizes an award of compensatory damages as part of
make-whole relief for intentional discrimination. Section 1981 a(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. Section 1981a(b)(3) limits the total amount of compensatory damages
that may be awarded to appellant since the agency has more than 500
employees to $300,000. Past pecuniary losses are not subject to this
cap.<1>
Because the compensatory damages provision of the Act is not retroactive,
they are not available for acts of discrimination occurring prior to
the Act, i.e., November 21, 1991. Landgraf v. USI Film Products, 511
U.S. 244 (1994).
Compensatory damages may be awarded for past pecuniary losses,
future pecuniary losses, and nonpecuniary losses that are directly or
proximately caused by the agency's discriminatory conduct. Compensatory
and Punitive Damages Available Under Section 102 of the Civil Rights
Act of 1991, EEOC Notice No. N 915.002 (July 14, 1992), at 8. Pecuniary
losses are out-of-pocket expenses incurred as a result of the employer's
unlawful action, including medical and other quantifiable out-of-pocket
expenses. Id. Past pecuniary losses are pecuniary losses incurred
prior to the date of the resolution of the damage claim. Id. at 8-9.
Future pecuniary losses are losses that are likely to occur after the
resolution of litigation. Id. at 9. Nonpecuniary losses are losses
that are not subject to precise quantification including emotional pain
and loss of health. Id. at 10.
Past Pecuniary Damages
The agency found that as a result of its discrimination, appellant
sustained, among other things, emotional injury including depression
and a variety of physical ailments such as chest and stomach pains and
digestive problems. This finding is supported by the record.
For example, appellant's husband testified that some three months after
the supervisor took over, appellant started complaining of chest and
stomach pain, and later had incidents of shortness of breath, trembling,
and cold hands, and would worry. Further, after appellant was removed she
started treatment with a psychologist in March 1993. Appellant complained
of the above mentioned physical symptoms, as well as loss of appetite
interests, libido, sleep disturbance, tearfulness, fatigue, and at
times nausea. The psychologist's May 1993 evaluation report stated that
psychological tests revealed appellant had strong feelings of confusion,
paranoia, and anxiety, all indicative of stressors associated with her
work place. It opined that appellant's anxiety and depression produced
physical problems, and that her psychological symptoms were causally
related to the work place abuses. It diagnosed appellant with depression.
Moreover, from March 1993 to July 1993, appellant sought treatment from
a private physician outside her health plan. In a May 1993 evaluation
report, the physician stated appellant developed chest pain, palpitations
and abdominal pain following harassment by her supervisor, and developed
situational depression and anxiety attacks. The physician opined that
"there appears to be a causal relationship" between appellant's employment
and her symptomatology, and recommended further diagnostic testing.
This included a recommendation for an esophagogastroduodenoscopy (EGD),
i.e., an invasive endoscopic examination of the entire esophagus, stomach,
and duodenum if the appellant continued to experience persistent abdominal
pain despite medication.
Since the agency found on November 23, 1994 that it discriminated
against appellant, past pecuniary damages are those connected with the
agency's discrimination through November 23, 1994, the date of the final
agency decision which resolved appellant's complaint with a finding
of discrimination.
In a February 26, 1995 evaluation report, appellant's psychologist
stated that he had been seeing appellant weekly since March 1993. At the
hearing appellant submitted a bill from the psychologist dated December
2, 1993 for $6,450. This included a weekly charge of $150 for office
therapy visits, and a charge of $1,500 for psychological testing. Although
appellant had been seeing the psychologist for 39 weeks as of December 2,
1993, the total balance due for weekly therapy visits indicated appellant
saw the psychologist for 33 weekly therapy visits.
The number of weeks between December 2, 1993 and November 23, 1994
are approximately 51. Given that appellant did not actually see her
psychologist each week in the past, and some visits will typically
be missed due to holidays and so forth, we estimate that appellant
would have attended 47 weekly visits during this time period. At a
rate of $150 per visit, this amounts to an additional cost of $7,050.
Accordingly, the past pecuniary damages connected with appellant's
treating psychologist's fees total $13,500.
Between March 1993 and July 1993 appellant saw the private physician
outside her health plan 14 times, primarily for digestive system
problems and stomach pain. At the hearing, appellant submitted a bill
from this doctor for $4,901.98, which consisted of charges for various
diagnostic cardiac procedures; diagnostic digestive system procedures,
including an upper gastro intestinal imaging and an EGD; office visits
for stomach pain, a fee of $670 for a narrative report directed to
appellant's psychologist and a charge $60 for a broken appointment.
There was a nexus between the agency's discrimination and appellant's
visits to this doctor and the need for the narrative report, but not
for the broken appointment. Accordingly, the past pecuniary damages
connected with the private physician's fees are $4,841.98.
Over all the visits, appellant incurred a total of 784 miles in automobile
travel seeing this physician. The Commission takes official notice that
the reimbursement rate the federal government provided its employees
when conducting official business in a personal automobile in 1993 was
25� a mile. Accordingly, the past pecuniary damages connected with the
mileage is $196.
In addition, appellant submitted a bill of $44.75 for a thyroid profile
in March 1993, a bill of $53.50 for a cardiac enzyme test in May 1993,
and a bill for $220 for a gastro imaging in July 1993. A preponderance of
the evidence indicates that there is a causal nexus between the agency's
discrimination and appellant's cardiac enzyme test and gastro imaging
since these expenses were likely related to further diagnostic testing
for appellant's chest pain and digestive problems. Accordingly, the past
pecuniary damages connected with these procedures are $273.50. However,
appellant failed to show a nexus between the agency's discrimination
and her thyroid profile of March 1993, and hence, this expense is not
compensable.
Appellant claimed that she had various smaller medical expenses related
to the agency's actions. She submitted 10 "registration" receipt
fees totaling $29 for seeing her health plan medical providers between
November 26, 1991 and February 1993. Some of the receipts appeared to
be unrelated to injuries allegedly caused by the agency's actions, such
as a vision examination, others did not specify the nature of the visits
or were undecipherable, and others were for cardiac exams, one of which
was referred to the psychiatry department. Appellant submitted receipts
for drugs purchased at her health plan pharmacy between February 1992 and
January 1993 totaling $22.50. Several did not note the drugs purchased.
We find appellant has been adequately compensated for the registration
and prescription fees she incurred for services by her health plan.
Finally, after appellant was removed she continued her individual
health insurance offered through the federal government from March
24, 1993 through December 31, 1993, a total of 40 weeks. The monthly
installment charges were $183.72, for a total of $1,701.79. Thereafter,
at the first opportunity to do so appellant's husband obtained health
insurance coverage for appellant in a family plan offered through his
federal employer. As appellant would not have incurred the $1,701.79
expense but for the agency's discriminatory removal, she is entitled to
reimbursement for this expense. However, this expense must be offset
by the amount appellant would have paid for insurance had she continued
her employment. This amount in 1993 in her home zip code was $20.78
every two weeks, a total of $415.60. Accordingly, the past pecuniary
expenses connected with the health insurance premiums are $1,286.19.
The agency found that it was not responsible for appellant's past medical
expenses because they were or may be covered by health insurance.
However, appellant is entitled, pursuant to the collateral source
rule, to the full amount of her pecuniary damages, even if some or all
of the expenses were paid by her or her husband's health insurance.
Wallis v. U.S. Postal Service, EEOC Appeal No. 01950510 (November 13,
1995). Accordingly, the agency may not use funds distributed by the
health insurance to offset an award of damages. Id. The total amount
of past pecuniary damages appellant is entitled to are $20,097.67.
Future Pecuniary Damages
On appeal, appellant argues that she is entitled to future pecuniary
damages to cover the treatment costs of her psychologist. At the EEOC
hearing in January 1994, appellant emphatically stated she was still
depressed because of the "manipulations, intimidations" of the EEO case.
Appellant's psychologist testified that appellant kept relapsing because
the litigation caused her to keep re-experiencing the stressors by
thinking about them. Appellant also testified that she was still
depressed and anxious because of the harassment she was subjected to
during her employment. Based on the foregoing, we find that up to March
27, 1996, the date through which as explained below there is sufficient
documentary evidence of future pecuniary damages, there was a causal
nexus between the discrimination found and appellant's emotional state.
In a February 26, 1995 evaluation report, appellant's psychologist
wrote that since appellant's progress had been slow, her visits would
be increased to twice weekly. In a July 31, 1995 progress report, the
psychologist stated that he had been seeing appellant on a biweekly basis.
A brief from appellant's attorney received by the Commission in August
1995 stated that appellant continued to see her psychologist twice
a week. As recently as March 27, 1996, appellant's attorney submitted
a letter to the Commission stating that appellant was still in treatment
with her psychologist. Given that the most recent documentation by the
psychologist in the record is the progress report of July 31, 1995, and
there is no statement from the psychologist estimating how long treatment
was expected to continue, there is insufficient evidence to make an
estimate beyond the attorney's March 27, 1996 letter concerning how
long appellant's treatment will continue, and hence future pecuniary
damages for such treatment will not be awarded beyond that date.
Smith v. Department of Defense (Army and Air Force Exchange Agency),
EEOC Appeal No. 01943844 (May 9, 1996)(insufficient evidence to award
future pecuniary damages for mental therapy visits where doctor stated
"if things remain as they are, [complainant] will need to be in therapy
for an undetermined amount of time," and the complainant did not update
this statement. This evidence was contrasted with a decision where
the Commission awarded future pecuniary damages for therapy where a
psychiatrist stated that the complainant was likely to require treatment
for the next five years).
The period between November 24, 1994 and February 26, 1995 is
approximately 13 weeks. The period between February 27, 1995 and March
27, 1996 is approximately 56 weeks. The total regularly scheduled visits
during the first period would be 13 (once a week), and the total regularly
scheduled visits during the second period would be 112 (twice a week).
Given that appellant did not actually see her psychologist each week
in the past, and some visits will typically be missed, we estimate that
appellant would have had 110 visits during this time period. At a rate
of $150 per visit, appellant's future pecuniary damages total $16,800.
Nonpecuniary Damages
Co-worker 1, a realty specialist, testified that prior to the supervisor,
appellant was always pleasant, socialized with co-workers, and got along
with everybody. She testified that the supervisor screamed at appellant
at least every week, that appellant reacted by crying, and that the
reactions worsened as time went on. Co-worker 2, a geographer added
that after being subjected to the supervisor's verbal abuse appellant's
personality changed and she did not want to come to work.
The record contains short medical notes covering various periods between
July 1991 and July 1992 which state appellant was disabled from work.
For most of the longer periods of disability appellant was given a
diagnosis, in several instances of depression and/or anxiety.
Appellant indicated in an investigatory hearing in February 1992 that
she was "happy" outside of the office because she and her husband had
"so many occasions" that there was no time to be stressed, and that she
was an active choir member in two parishes.
Appellant's husband stated that prior to working for the supervisor,
appellant was easy going, smiled frequently, would always accompany him on
his many social interactions, and did not complain of physical illness. He
testified that appellant loved to cook and prepared meals daily and did
other household activities. Appellant provided consistent testimony.
Appellant's husband testified that after the supervisor took over,
appellant stopped smiling, would stay home and not see friends,
and stopped doing household chores. The husband stated that he and
appellant rarely had marital relations. Appellant testified that she
became depressed and anxious two to three months after working for
the supervisor.
At the EEOC hearing of January 1994, appellant testified that especially
after being removed, but also while working for the supervisor she
was very socially withdrawn, even from family, and no longer danced,
a formerly routine activity. Appellant testified that when she learned
of her removal she was unable to do any household work except sometimes
washing clothes. She testified that she was still in the choir, and
taught a church course.
Appellant's psychologist's evaluation report of May 1993 indicated that
appellant appeared lethargic, her facial expression was sad and worried,
and her speech was non-spontaneous and slow. The report indicated that
appellant reported that in her activities of daily living she got up
mornings for usual household chores, but at times felt fatigued and went
back to bed.
The agency referred appellant for a one time evaluation that was conducted
by a psychologist in September 1993. The psychologist found that on
psychological tests appellant presented herself with severe levels
of depression usually only found in hospitalized individuals, and the
validity check on two tests indicated extreme "faking bad." With regard
to the latter matter, he explained that in one test appellant endorsed
virtually every question going to depression and a disturbed state.
This psychologist indicated it was a real possibility appellant believed
what she said even though it was not true.
On appeal, appellant argues that her injuries are such that she is
entitled to the fullest extent of compensatory damages allowed by law,
i.e., $300,000. There is no precise formula for determining the amount
of damages for nonpecuniary losses. An award of compensatory damages
for such losses should reflect the nature and severity of the harm and
the duration or expected duration of the harm. Further, a complainant
must establish a nexus between the harm and the discrimination found.
It is a Commission goal to make damage awards for emotional harm
consistent with awards in similar cases. See e.g., Carpenter
v. Department of Agriculture, EEOC Appeal No. 01945652 (July 17, 1995)
(award of $75,000 in nonpecuniary damages for deterioration in appellant's
medical and emotional condition resulting in his disability retirement.
Aggravation of asthma; panic attacks, insomnia, digestive problems, loss
of spirit, social withdrawal, feelings of hostility and irritability,
loss of libido); Finlay v. United States Postal Service, EEOC Appeal
No. 01942985 (April 29, 1997) (award of $100,000 in nonpecuniary damages
for severe psychological injury over four years which was expected to
continue for an indeterminate period of time. This included ongoing
depression, frequent crying, concern for physical safety, loss of charm,
lethargy, social withdrawal, concern for physical safety, recurring
nightmares and memories of harassment, a damaged marriage, stomach
distress, and headaches).
Due to emotional distress, appellant had depression, anxiety, paranoia,
confusion, moodiness, insomnia, social withdrawal, tearfulness,
fatigue, loss of libido, loss of self-esteem, and chest and stomach
pains, digestive problems, and incidents of shortness of breath.
Medical evidence in the record indicates the chest and stomach pains,
and digestive problems were quite severe. Appellant repeatedly sought
medical treatment for these problems, including an EGD after she was
removed in 1993.
Given that the agency's discriminatory conduct from November 21, 1991
through appellant's removal resulted in severe psychological injury which
caused substantial physical discomfort, and the awards the Commission has
made in similar cases, we find that appellant is entitled to nonpecuniary
damages in the amount of $125,000. This takes into account all of
appellant's emotional and physical problems as well as the fact that as a
result of digestive system problems caused by the agency's discrimination,
she underwent an EGD, an invasive diagnostic procedure involving a scope.
Back and Front Pay
On appeal appellant argues that she is entitled to front pay. She does
not discuss any other equitable remedy.
The May 1993 evaluation report variously stated that it was possible that
appellant could return to work with appropriate structure and continued
psychotherapy, and that she was capable of doing so with supportive
psychotherapy. In the summer of 1993 the agency offered to reinstate
appellant outside her former division to the position of automation
clerk, GS-4. Appellant declined the offer, indicating to the agency
that she did not want to take a demotion.<2> Appellant stated that the
agency later offered her the same position with GS-7 pay, and testified
in part that she declined the offer because by that time she was unable
to manage working due to her mental health. Appellant also testified
that she was unable to work under the management of the entire U.S. Army
Los Angeles District Corps of Engineers because of the "manipulations"
of the lawyer representing the agency with the EEO case and her fear
that everyone would look at her, resulting in further erosion of her
self-esteem. She added that she was too depressed to work for the
agency, and that winning and closing of her EEO case would change this.
Appellant acknowledged that her psychologist advised her that she should
work, but appellant believed she was unable to do so.
At the EEO hearing, appellant's psychologist testified that with a
different supervisor and a less stressful work environment, he believed
appellant could return to work at that time. He then qualified this by
stating he was not sure she was capable of returning due to the paradox
of depression where a person may feel she cannot work or be unable to
do so, even though work would likely improve the depression. When the
agency attorney, apparently based on appellant's testimony, appraised the
psychologist in further questioning that appellant received agency job
offers, the psychologist testified that he did not think appellant was
ready to return to work, that perhaps she could do so in a few months,
and he had no problem with her returning if an appropriate milieu had
been offered.
In a February 1995 evaluation report of appellant, the psychologist
opined that appellant was temporarily totally disabled, it was uncertain
if this would become permanent, and the goal date she could return to
work was June 1995.
After the agency sent appellant the letter in January 1995 providing
her an additional opportunity to prove compensatory damages, appellant
submitted her psychologist's February 1995 evaluation report indicating
she was unable to work. The record reflects that in May 1995 the
agency rescinded a proposal to remove appellant issued in April 1995
for disability because of medical information that she may be able to
return to work on June 30, 1995. In late June 1995 the agency asked
appellant for a projected date she could return to work because June
30, 1995 was approaching. In a July 31, 1995 progress report, the
psychologist opined that appellant remained temporarily totally disabled,
it was uncertain when she would return to the work place, and she was
off work until August 30, 1995. A March 1996 appeal letter written by
appellant's attorney states that appellant's psychologist now believes
it is unlikely appellant can return to the work place due to her major
depression and anxiety disorder.
Despite appellant's claim to the contrary, we find that she was able to
work in the late 1994 early 1995 time frame when the agency rescinded the
removal and made inquiries of her aimed at reinstatement. Appellant's
and her psychologist's claims to the contrary are incredible in light of
their testimony at the EEOC hearing. Appellant's testimony that she was
unable to work under the management of the entire U.S. Army Los Angeles
District Corps of Engineers because of "manipulations" of the lawyer
representing the agency with the EEO case and her fear that everyone
would look at her does not persuasively explain why she could not work
under a different set of supervisors. Appellant acknowledged at the
hearing that her psychologist advised her in therapy that she should work.
The psychologist also testified that he believed appellant could work if
she did not return to the same environment. While he later qualified
this testimony, we find this testimony, together with the testimony of
appellant, indicates the psychologist believed appellant could work.
While the record does not reflect whether the agency offered appellant a
job after it rescinded the removal, it shows she indicated to the agency
that she would not work. In any event, even when a job offer is made
and rejected, back pay is owed up to the point the offer was declined.
29 C.F.R. �1614.501(b)(iii). Since the agency determined by January 20,
1995 that it would rescind the removal, appellant was entitled to back
pay and other benefits from the time she was removed to January 20, 1995.
The record does not reflect to what extent appellant has been provided
back pay. Appellant is not entitled to front pay because the agency
communicated to her that it wished her return, and her stand that she
was unable to work for the entire U.S. Army Los Angeles District Corps
of Engineers is not supported by the record.
Attorney's Fees and Costs
It is not clear to what extent attorney's fees and costs are still
at issue. The record reflects that the agency paid $23,937.50 to
attorney A.S., who was the primary attorney in appellant's EEO case.
As it appears the agency did not make other payments, and appellant has
sought and is seeking payments for the fees and costs of other attorneys,
the Commission will address this matter.
Where a complainant is a prevailing party, the agency or Commission may
award reasonable attorney's fees and costs (including expert witness fees)
incurred in the processing of the EEO complaint. 29 C.F.R. �1614.501(e).
Over the course of the processing of her EEO and other claims, appellant
was represented by five attorneys. Appellant asked for $845 that she
was billed and paid to attorney L.H. for 14.25 hours of work he spent
preparing and representing appellant at the agency investigative hearing
in the instant case. Appellant asked for $2,000 she paid attorney A.S. to
represent her in the instant EEO case and $2,000 she paid him to represent
her in MSPB litigation controverting her removal. Reasonable attorney
fees for such work are generally allowed under Commission regulations.
This includes the litigation before the MSPB, even though it was deprived
of jurisdiction after the removal was rescinded, since the litigation
was necessary to preserve the EEO removal issue. Appellant asked for
compensation she paid attorney M.G. to represent her in her Office of
Workers' Compensation claim. The Commission does not award appellant
such fees since this litigation was unrelated to her prevailing in the
EEO forum on the instant discrimination claim. For the same reason,
the Commission cannot award appellant the $1,500 retainer fee she
paid attorney D.H. to represent her in an unspecified matter against
the agency.
Appellant also asked for costs she personally paid in her litigation.
Appellant asked for $41.15 for stamps, document handling, mailing, and
copying expenses in her EEOC litigation, $27.77 for mailing, copying,
and tabs in her MSPB litigation, and $11.32 for copying and a telefax
in unspecified litigation. Such expenses are generally compensable
under Commission regulations. Fiene v. United States Postal Service,
EEOC Petition No. 04920009 (September 3, 1992), Carver v. United States
Postal Service, EEOC Petition No. 04950004 (June 19, 1996).
To the extent appellant is asking the agency for reimbursement for
fees she paid her attorneys that the agency already paid, appellant is
advised that the agency is not required to make duplicate payments for
the same fees.
ORDER
The agency is ordered to take the following remedial actions:
(1) For the period from the date of appellant's removal through January
20, 1995, the agency shall provide appellant a check for the appropriate
amount of back pay and interest on back pay, and provide other benefits,
under pertinent Office of Personnel Management Regulations, and 29
C.F.R. �1614.501, if it has not done so already, within 60 calendar
days of the date this decision becomes final. Appellant is ORDERED to
cooperate in the agency's efforts to compute the amount of back pay,
interest, and benefits due, and to provide all necessary information
the agency requests to help it comply.
(2) Within 60 calendar days of the date this decision becomes final,
the agency shall provide appellant a check for damages, which includes
past pecuniary, future pecuniary, and nonpecuniary damages in the amount
of $76,897.67.<3>
(3) Within 30 calendar days of the date this decision becomes final,
the agency shall solicit necessary documentation from appellant to make a
determination on any attorney's fees and costs due, if any, in accordance
with this decision and Commission regulations. If the parties are unable
to reach an agreement on the amount of attorney's fees and costs due, the
agency, shall pay any undisputed fees and costs and issue a final agency
decision, appealable to the Commission, on the disputed fees and costs.
29 C.F.R. �1614.501(e)(2)(ii)(A).
If there is a dispute about the amount of back pay, interest due,
and/or other benefits, and compensatory damages, the agency is ORDERED to
provide appellant a check for the undisputed amount within the applicable
time limits set forth above. Appellant may petition for enforcement or
clarification of the amount in dispute. The petition for clarification
or enforcement must be filed with the Compliance Officer, at the address
referenced in the paragraph entitled "Implementation of the Commission's
Decision."
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.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0595)
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 appellant. If the agency does not comply with the Commission's
order, the appellant may petition the Commission for enforcement of
the order. 29 C.F.R. �1614.503 (a). The appellant 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. �� 1614.408, 1614.409, and 1614.503 (g). Alternatively,
the appellant 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. �� 1614.408 and 1614.409. 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
appellant files a civil action, the administrative processing of the
complaint, including any petition for enforcement, will be terminated.
See 29 C.F.R. �1614.410.
ATTORNEY'S FEES (H1092)
If appellant 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.
RECONSIDERATION (M0795)
The Commission may, in its discretion, reconsider the decision in this
case if the appellant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. New and material evidence is available that was not readily available
when the previous decision was issued; or
2. The previous decision involved an erroneous interpretation of law,
regulation or material fact, or misapplication of established policy; or
3. The decision is of such exceptional nature as to have substantial
precedential implications.
Requests to reconsider, with supporting arguments or evidence, MUST
BE FILED WITHIN THIRTY (30) CALENDAR DAYS of the date you receive this
decision, or WITHIN TWENTY (20) CALENDAR DAYS of the date you receive
a timely request to reconsider filed by another party. Any argument in
opposition to the request to reconsider or cross request to reconsider
MUST be submitted to the Commission and to the requesting party
WITHIN TWENTY (20) CALENDAR DAYS of the date you receive the request
to reconsider. See 29 C.F.R. �1614.407. All requests and arguments
must bear proof of postmark and 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 filed on the date it is received
by the Commission.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely. If extenuating circumstances
have prevented the timely filing of a request for reconsideration,
a written statement setting forth the circumstances which caused the
delay and 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).
RIGHT TO FILE A CIVIL ACTION (S0993)
It is the position of the Commission that 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.
You should be aware, however, that courts in some jurisdictions have
interpreted the Civil Rights Act of 1991 in a manner suggesting that
a civil action must be filed WITHIN THIRTY (30) CALENDAR DAYS from the
date that you receive this decision. To ensure that your civil action
is considered timely, you are advised to file it WITHIN THIRTY (30)
CALENDAR DAYS from the date that you receive this decision or to consult
an attorney concerning the applicable time period in the jurisdiction
in which your action would be filed. 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 (Z1092)
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 15, 1998
Date
Frances
M.
Hart
Executive Officer
Executive Secretariat1 Appellant is
not entitled to compensatory damages or
attorney's fees and costs in connection
with her ADEA claim. Taylor v. Army,
EEOC Request No. 05930633 (January
14, 1994), 29 C.F.R. �1614.501(e).
However, this does not reduce the
amount of compensatory damages or
attorney's fees to which the appellant
is entitled because all the actions
that were discriminatory were found
to have also violated Title VII.
2 Appellant was not under an obligation to accept this offer to mitigate
her injury because this position, even if offered with save pay status,
would constitute a demotion. Todd v. United States Postal Service, EEOC
Petition No. 04920007 (August 27, 1992). Appellant testified that she
received additional reinstatement offers, but there is no information
on them in the record.
3This figure is the sum of $20,097.67 in past pecuniary damages, $16,800
in future pecuniary damages, and $125,000 in nonpecuniary damages,
minus $85,000 in nonpecuniary damages already paid by the agency.