01974508
03-21-2000
Lynda K. Starling, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, (Pacific/West Region), Agency.
Lynda K. Starling v. United States Postal Service
01974508
March 21, 2000
Lynda K. Starling, )
Complainant, )
) Appeal No. 01974508
v. ) Agency No. 5D-1733-92
) Hearing No. 340-93-3304X
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
(Pacific/West Region), )
Agency. )
____________________________________)
DECISION
Complainant timely appeals from a final agency decision ("FAD") concerning
the compensatory damages to which she is entitled based on the finding
that she was subjected to reprisal for prior EEO activity, in violation
of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. �
2000e et seq., when the agency issued her a performance appraisal rating
of "good" for fiscal year ("FY") 1991.<1> This appeal is accepted in
accordance with EEOC Order No. 960.001.
ISSUES PRESENTED
The issues presented are whether the agency: (a) properly determined
that complainant had not established an entitlement to any payment of
nonpecuniary damages; and (b) has complied with the remaining provisions
of the Commission's prior decision.
BACKGROUND
At the time in question, complainant was an Area Manager, EAS-21.
She filed a formal EEO complaint on August 20, 1992, containing various
claims. At the conclusion of the investigation, complainant requested a
hearing before an EEOC Administrative Judge ("AJ"). Following a hearing,
the AJ issued a Recommended Decision ("RD") finding that complainant was
subjected to reprisal when she received a performance rating appraisal
of "good" for FY 1991, noting that this rating was lower than her prior
ratings and finding that complainant's performance on the objective
criteria was better than that of other Area Managers who received higher
ratings.<2> To remedy the reprisal, the AJ recommended in pertinent part
that the agency: (1) re-evaluate her performance and rate such performance
no less than "very good;" (2) reimburse her for any loss of monetary
benefits flowing from her FY 1991 performance appraisal; (3) determine
the amount of nonpecuniary compensatory damages necessary to compensate
complainant for harm suffered, finding that she "should be awarded a
sum to compensate her for severe emotional distress from April [until]
December 1992, and for moderate emotional distress until June of 1993
... discounted by 50% to offset the non-discriminatory causative factors
contributing to the stress;"<3> and (4) post an appropriate notice.<4>
Regarding the AJ's recommendations concerning compensatory damages,
the AJ noted that complainant first sought treatment for mental anguish
and distress in approximately November 1991, when she could not think
clearly, her social relations suffered, and she became withdrawn and
uncommunicative in relations with her husband and family. At that time,
her treating psychiatrist determined that she was in a major depression
(single episode, without psychotic features) and provided psychotherapy
and drug treatment. While the psychiatrist wrote that complainant's mood
had improved as of March 11, 1992, he later determined that her condition
"significantly deteriorated following" issuance of the performance
rating on March 27, 1992. In April 1992, the psychiatrist noted that
complainant felt "hopeless and desperate ... lethargic, depressed
[and] unhappy," and that she was experiencing a "loss of initiative"
and an "inability to focus and concentrate." In 1987, complainant was
diagnosed with Type II, adult onset diabetes, and she contended that her
mental anguish exacerbated this condition, causing fatigue, inability to
concentrate and increased vision difficulties. In addition, complainant
first began experiencing hypertensive episodes in 1983, and she contended
that the mental anguish increased the number of hypertensive episodes and
caused pain and stiffness in her head, shoulders and neck. The agency
had complainant examined by its own psychiatrist, who found that she
had an Adjustment Disorder with Mixed Emotional Features (in Remission)
combined with preexisting personality traits which caused her, when
injured by the acts of others, to be "hostile, paranoid, over-sensitive,
[and to] overreact, project [and] harbor grudges." The psychiatrists
disagreed regarding whether complainant had exaggerated her responses
on the Minnesota Multiphasis Psychiatric Inventory (the "MMPI") to make
it appear that her condition was worse than it really was.
While the AJ found that complainant presented ample evidence of emotional
and psychological distress, the AJ found that she had exaggerated her
symptoms when responding to the MMPI. The AJ further found that not
all of the anxiety, distress and humiliation recounted by complainant
was directly caused by the issuance of the lower performance rating in
March 1992. Instead, the AJ found that much of the emotional distress
and humiliation was the result of complainant's anxiety concerning
her diabetic condition, or resulted from the other challenged agency
actions which were not found to be based on discrimination or reprisal.
However, the AJ determined that the evidence was sufficient to conclude
that complainant nonetheless suffered severe emotional distress upon
receipt of the low performance rating, although the AJ found that such
distress lessened in June 1993, and that any emotional distress after
June 1, 1993 was caused by other factors.
In its FAD, the agency rejected the RD insofar as it found that
complainant was subjected to reprisal. Complainant timely appealed,
and the Commission reversed the FAD insofar as it rejected the AJ's
finding of reprisal. See EEOC Appeal No. 01951011 (December 5, 1996).
In pertinent part, the Commission ordered the agency to "award complainant
compensatory damages in accordance with the [RD and] issue a [FAD],
with appeal rights to complainant, on the issue of compensatory damages"
within sixty days of the date the decision became final.
In its instant FAD, dated March 19, 1997, the agency found that
complainant "was not able to prove that any injury she suffered
during this time in question [April 1992 until June 1993] was in any
way causally connected to the [retaliatory] low merit evaluation."
The agency noted that complainant had testified about numerous "life
stressors ... including her husband's loss of his job [in December
1991] and the medical problems she faced." The agency noted that its
psychiatrist testified that the low evaluation was not responsible for
complainant's alleged problems and that she had exaggerated many of her
symptoms. The agency found that complainant "contradicted herself on
many occasions," as evidenced by her testimony "that she �essentially did
not go out at all,' [but then] she was caught attending a gala opening
at the Treasure Island Casino in Las Vegas, NV on the weekend of October
27, 1993." Accordingly, the agency determined that complainant "has not
proven herself to be a trustworthy or credible witness in this matter,"
and that she was, therefore, unsuccessful in her "valiant attempt to
link all of her problems to the low merit evaluation." The agency
concluded that it "can find no reason whatsoever to award any amount of
compensatory damages."
On appeal, complainant contends that the agency "defaulted" in its
obligation to issue a FAD within 60 days of the date the Commission's
decision became final and that therefore, the agency must pay her the
full amount of damages sought [$300,000] plus interest. Complainant also
contends that, in light of its profits, estimated by complainant to
be over $1,700,000,000 in FY 1997 with revenues of over $140,000,000
per day, the agency should be ordered to pay her punitive damages of
$75,000. Complainant also states that the agency did not re-evaluate
her performance for FY 1991 and did not post the notice ordered by
the Commission.
In its comments on the appeal, the agency asserts that complainant
failed to present any adequate proof to link her alleged illness to her
evaluation for FY 1991 and notes that its psychiatrist testified that
the evaluation was not responsible for any of her alleged problems.
ANALYSIS
Section 102(a) of the 1991 Civil Rights Act authorizes an award
of compensatory damages for all post-Act pecuniary losses, and for
nonpecuniary losses, such as, but not limited to, emotional pain,
suffering, inconvenience, mental anguish, loss of enjoyment of life,
injury to character and reputation, and loss of health. The Commission
has the authority to award such damages in the administrative process.
West v. Gibson, 119 S.Ct. 1906 (1999). Compensatory damages do not
include back pay, interest on back pay, or any other type of equitable
relief authorized by Title VII. To receive an award of compensatory
damages, a complainant must demonstrate that she has been harmed as a
result of the agency's discriminatory action; the extent, nature and
severity of the harm; and the duration or expected duration of the harm.
Rivera v. Department of the Navy, EEOC Appeal No. 01934157 (July 22,
1994), req. for reconsid. denied, EEOC Request No. 05940927 (December 11,
1995); Compensatory and Punitive Damages Available Under Section 102 of
the Civil Rights Act of 1991, EEOC Notice No. 915.002 at 11-12, 14 (July
14, 1992). A complainant is required to provide objective evidence that
will allow an agency to assess the merits of a complainant's request
for emotional distress damages. See Carle v. Department of the Navy,
EEOC Appeal No. 01922369 (January 5, 1993).
There are no definitive rules governing the amount of nonpecuniary
damages to be awarded. However, nonpecuniary damages must be limited
to the sums necessary to compensate the injured party for actual harm,
even where the harm is intangible, see Carter v. Duncan - Higgins,
Ltd., 727 F.2d 1225 (D.C. Cir. 1984), and should take into account the
severity of the harm and the length of time that the injured party has
suffered the harm. Carpenter v. Department of Agriculture, EEOC Appeal
No. 01945652 (July 17, 1995). Nonpecuniary and future pecuniary damages
are limited to an amount of $300,000.00. The Commission notes that for
a proper award of nonpecuniary damages, the amount of the award should
not be "monstrously excessive" standing alone; should not be the product
of passion or prejudice; and should be consistent with the amount awarded
in similar cases. See Cygnar v. City of Chicago, 865 F. 2d 827, 848 (7th
Cir. 1989); EEOC v. AIC Security Investigations, Ltd., 823 F. Supp. 571,
574 (N.D. Ill. 1993).
We agree with the AJ and find that complainant has submitted sufficient
evidence to establish that she suffered emotional harm as the result
of the retaliatory appraisal issued for FY 1991. As noted in the
RD, complainant testified as to the effect the retaliation had on her
mental and physical health. We note that a complainant's own testimony,
along with the circumstances of a particular case, can establish mental
or emotional harm. See Sinott v. Department of Defense, EEOC Appeal
No. 01952872 (September 19, 1996). In addition, complainant's treating
psychiatrist also presented testimony to this effect. Like the AJ, we
find this evidence sufficient to establish complainant's entitlement to
compensatory damages.
However, we disagree with complainant's contention on appeal that the
agency's delay in issuance of its instant FAD (issued on March 19, 1997,
rather than by February 5, 1997) or the agency's finding that no award
was merited, entitles her to an award of $300,000. In determining the
amount of the award, we note that several Commission decisions have
awarded compensatory damages in cases where the complainant presented
less evidence than did complainant here. See Yates v. United States
Postal Service, EEOC Appeal No. 01973250 (March 11, 1999)($1,500
in nonpecuniary damages where the complainant provided only sparse
statements during the hearing regarding his emotional distress);
Pailin v. Department of Defense, EEOC Appeal No. 019514350 (January
26, 1998)($2,500 in nonpecuniary damages where the complainant was
denied training on the basis of race and testified that she experienced
tension, depression, and withdrawal from coworkers); DeMeuse v. United
States Postal Service, EEOC Appeal No. 01950324 (May 22, 1997)($1,500 in
nonpecuniary damages where the complainant was frisked by a supervisor,
and testified as to exacerbation of post-traumatic stress disorder);
Lawrence v. United States Postal Service, EEOC Appeal No. 01952288
(April 18, 1996)($3,000 in nonpecuniary damages for sexual harassment
where the complainant presented primarily non-medical evidence that
she was irritable, experienced anxiety attacks, and was shunned by her
co-workers); Benson v. Department of Agriculture, EEOC Appeal No. 01952854
(June 27, 1996)($5,000 in nonpecuniary damages where the complainant,
his relatives, and his colleagues offered testimony regarding the
embarrassment and humiliation suffered as a result of discrimination).
In the present case, we find that the AJ, who had the opportunity to
observe the witnesses, properly determined that complainant "should be
awarded a sum to compensate her for severe emotional distress from April
[until] December 1992, and for moderate emotional distress until June
of 1993 ... discounted by 50% to offset the non-discriminatory causative
factors" contributing to the stress.<5>
We next note that the Commission generally awards large nonpecuniary
awards in cases where a complainant establishes severe emotional harm
and/or a long-term injury. See Finlay v. United States Postal Service,
EEOC Appeal No. 01942985 (April 29, 1997) ($100,000 in nonpecuniary
damages for severe psychological injury over four years which was expected
to continue for an indeterminate period of time.); Wallis v. United
States Postal Service, EEOC Appeal No. 01950510 (November 13, 1995)
($50,000.00 in nonpecuniary damages for aggravation of pre-existing
emotional condition, where effects were expected to last at least seven
years). Based on the foregoing evidence which establishes the stress
and emotional discomfort sustained by complainant and upon consideration
of damage awards reached in comparable cases, the Commission finds that
complainant is entitled to award of nonpecuniary damages in the amount
of $5,000 for the severe emotional distress suffered during the period
from April until December 1992, and $1,400 for the moderate emotional
distress suffered from December 1992 until June 1993. After offsetting
this amount by 50% to account for the non-discriminatory causative factors
contributing to the stress, complainant's award for nonpecuniary damages
is $3,200.
On appeal, complainant requests that the Commission also order the agency
to pay interest on the award. Section 717(d) of the Civil Rights Act of
1964, 42 U.S.C. � 2000e 16(d), as amended by Section 114(2) of the Civil
Rights Act of 1991 ("CRA") provides that "the same interest to compensate
for delay in payment shall be available [to Federal employees] as in
cases involving nonpublic parties." By enacting the 1991 amendments,
Congress expressly waived the federal government's sovereign immunity from
interest for the delay in the payment of all monetary awards to victims
of employment discrimination in the federal government to the same extent
to which any non-federal entity would be subject. The courts have also
frequently awarded interest on claims of "compensatory damages ... to
make the wronged party whole by compensating the wronged person for being
deprived of the monetary loss, i.e. the money and the use of the money."
DeLaCruz v. Pruitt, 590 F. Supp. 1296, 1309 (N.D.Ind. 1984). See also
April v. Department of Agriculture, EEOC Appeal No. 01963775 (June 5,
1997). In light of the Commission's prior decision, which ordered the
agency to "award complainant compensatory damages in accordance with the
[RD]," we find that the agency's attempt to reject the AJ's finding that
complainant had proven entitlement to such an award was without merit,
and note that this action significantly delayed complainant's receipt
of any compensation. Accordingly, we deem it appropriate to award
complainant interest on $3,200 from February 5, 1997.
Insofar as complainant seeks punitive damages, we note that Section
102(a)(3) of the CRA specifically disallows such damages against a
government entity. Therefore, punitive damages are not available
against the agency. Richardson v. United States Postal Service,
EEOC Appeal No. 01930624 (August 9, 1994); Jackson v. United States
Postal Service, EEOC Appeal No. 01923399 (November 12, 1992), aff'd,
EEOC Request No. 05930306 (February 1, 1993).
Finally, we note that complainant's appeal was filed on April 25,
1997. Thereafter, the Commission's Compliance Officer, Office of
Federal Operations, verified that the agency had complied with the
prior decision's order by posting the notice; reissuing complainant's
performance appraisal for FY 1991 with a rating of "very good;" and
compensating complainant in the amount of $273 for the difference in the
amount of a performance award based on a rating of "good" and a rating of
"very good."
CONCLUSION
Accordingly, based on a thorough review of the record, and for the
foregoing reasons, it is the decision of this Commission to REVERSE the
FAD and REMAND this matter to the agency, to comply with the terms of
the ORDER below.
ORDER
The agency is ORDERED to take the following remedial action:
1. Within thirty (30) days of the date on which this decision becomes
final, the agency shall tender to complainant nonpecuniary compensatory
damages in the amount of $3,200, plus interest on this amount commencing
as of February 5, 1997. If there is a dispute regarding the exact
amount of this award, the agency shall issue a check to complainant for
the undisputed amount within thirty (30) calendar days of the date the
agency determines the amount it believes to be due. Complainant 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 set forth below.
3. 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 of the
agency's calculation of interest and include evidence that the corrective
action has been implemented.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K1199)
Compliance with the Commission's corrective action is mandatory.
The agency shall submit its compliance report within thirty (30)
calendar days of the completion of all ordered corrective action. The
report shall be submitted to the Compliance Officer, Office of Federal
Operations, Equal Employment Opportunity Commission, P.O. Box 19848,
Washington, D.C. 20036. The agency's report must contain supporting
documentation, and the agency must send a copy of all submissions to the
complainant. If the agency does not comply with the Commission's order,
the complainant may petition the Commission for enforcement of the order.
29 C.F.R. � 1614.503(a). The complainant also has the right to file a
civil action to enforce compliance with the Commission's order prior
to or following an administrative petition for enforcement. See 64
Fed. Reg. 37,644, 37,659-60 (1999) (to be codified and hereinafter
referred to as 29 C.F.R. �� 1614.407, 1614.408), and 29 C.F.R. �
1614.503(g). Alternatively, the complainant has the right to file a
civil action on the underlying complaint in accordance with the paragraph
below entitled "Right to File A Civil Action." 29 C.F.R. �� 1614.407
and 1614.408. A civil action for enforcement or a civil action on the
underlying complaint is subject to the deadline stated in 42 U.S.C. �
2000e-16(c)(Supp. V 1993). If the complainant files a civil action, the
administrative processing of the complaint, including any petition for
enforcement, will be terminated. See 64 Fed. Reg. 37,644, 37,659 (1999)
(to be codified and hereinafter referred to as 29 C.F.R. � 1614.409).
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0300)
The Commission may, in its discretion, reconsider the decision in this
case if the complainant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. The appellate decision involved a clearly erroneous interpretation
of material fact or law; or
2. The appellate decision will have a substantial impact on the policies,
practices, or operations of the agency.
Requests to reconsider, with supporting statement or brief, MUST BE FILED
WITH THE OFFICE OF FEDERAL OPERATIONS (OFO) WITHIN THIRTY (30) CALENDAR
DAYS of receipt of this decision or WITHIN TWENTY (20) CALENDAR DAYS OF
RECEIPT OF ANOTHER PARTY'S TIMELY REQUEST FOR RECONSIDERATION. See 64
Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter referred
to as 29 C.F.R. � 1614.405); Equal Employment Opportunity Management
Directive for 29 C.F.R. Part 1614 (EEO MD-110), 9-18 (November 9, 1999).
All requests and arguments must be submitted to the Director, Office of
Federal Operations, Equal Employment Opportunity Commission, P.O. Box
19848, Washington, D.C. 20036. In the absence of a legible postmark, the
request to reconsider shall be deemed timely filed if it is received by
mail within five days of the expiration of the applicable filing period.
See 64 Fed. Reg. 37,644, 37,661 (1999) (to be codified and hereinafter
referred to as 29 C.F.R. � 1614.604). The request or opposition must
also include proof of service on the other party.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely, unless extenuating circumstances
prevented the timely filing of the request. Any supporting documentation
must be submitted with your request for reconsideration. The Commission
will consider requests for reconsideration filed after the deadline only
in very limited circumstances. See 29 C.F.R. � 1614.604(c).
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (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 21, 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
1 On 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.
2 Complainant's other claims, on which she did not prevail, are not at
issue here and, therefore, are not discussed.
3 While complainant sought certain pecuniary damages, the AJ found that
she failed to establish entitlement to such damages.
4 The AJ also recommended that the agency restore certain leave taken
by complainant and award her certain benefits during the period of such
leave. However, the Commission subsequently found that complainant
failed to establish a nexus between such leave and the retaliatory
performance rating. Inasmuch as complainant failed to prevail on the
other claims in her complaint, the Commission modified the RD insofar
as it recommended this relief.
5 In this regard, we note the AJ found that complainant failed to
establish that she was still experiencing emotional distress attributable
to the FY 1991 performance appraisal after June 1, 1993. Accordingly,
the agency's assertion that complainant attended an opening of a casino
in October 1993 has no bearing on this matter.