01961314
01-08-1999
Margaret E. Erving, Appellant, v. Louis Caldera, Secretary, Department of the Army, Agency.
Margaret E. Erving v. Department of the Army
01961314
January 8, 1999
Margaret E. Erving, )
Appellant, )
) Appeal No. 01961314
v. ) Agency No. 93-01-0021
) Hearing No. 170-93-8481X
Louis Caldera, )
Secretary, )
Department of the Army, )
Agency. )
)
DECISION
INTRODUCTION
Appellant filed a timely appeal with this Commission challenging the final
agency decision of the Department of the Army (agency) 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, 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 appellant was not entitled to payment of compensatory
damages.
BACKGROUND
Appellant filed a formal complaint alleging that the agency discriminated
against her, on the bases of her race (Black), sex (female), and age
(61), when: 1) an agency Personnel Specialist did not respond to her
inquiries regarding the status of the selection process for Supervisory
Quality Assurance Specialist, GM-13, Vacancy Announcement 273-91-C3;
and 2) the agency did not temporarily promote her to the position of
Supervisory Quality Assurance Specialist, during the period of March 23,
1991, through February 7, 1992, or in the alternative, give her the same
length of time of temporary promotion given to other employees during
the same period.
The agency accepted appellant's complaint and conducted an investigation.
At the conclusion of the investigation, appellant requested a hearing with
an EEOC administrative judge (AJ). Thereafter, a hearing was conducted,
and the AJ issued a recommended decision from the bench, dated March 10,
1994, finding that the agency discriminated against appellant when it
failed to temporarily promote her for the same length of time as the
temporary promotions given to two comparison employees (White/ male, age
39 and Black/male, age 42).
The AJ awarded appellant appropriate back pay; benefits; pay raises and
cost of living increases for 75 days as a GM-13; assurances that she
would not be harassed because of her participation in the EEO process;
posting of notification pursuant to 29 C.F.R. �1614.501(a)(1); and an
award of compensatory damages to be assessed by the agency for emotional
pain and suffering from the period of July 8, 1991, to the time the
position of Supervisory Quality Assurance Specialist (the position)
was abolished.<1>
In a final decision dated May 9, 1994, the agency adopted the AJ's
finding of discrimination with one exception; it refused to award
appellant compensatory damages based on the agency's position that
compensatory damages are not available in the administrative process.
It also provided, citing Landgraf v. USI Film Products, 114 S. Ct. 1483
(U.S. 1994) and Rivers v. Roadway Express, 114 S. Ct. 1510, that
compensatory damages are not awardable for appellant's claims which arose
prior to November 21, 1991. Appellant appeals the agency's decision.
ANALYSIS AND FINDINGS
First, we find the agency's position regarding compensatory damages to
be invalid because the Commission has held that compensatory damages
are recoverable in the administrative process. See Jackson v. United
States Postal Service, EEOC Appeal No. 01923399 (November 12, 1992),
request to reopen 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). Therefore, the Commission finds that the
AJ correctly determined that appellant is entitled to an award of
compensatory damages.
Notwithstanding our findings above, the Commission agrees with the
agency's finding that compensatory damages are not available for conduct
that occurred prior to the effective date of the Civil Rights Act of 1991,
November 21, 1991. Therefore, in this case, the recovery of compensatory
damages is limited to those damages shown to be causally connected to the
incidents raised in appellant's complaints which occurred from November
21, 1991 until the date the position was last occupied, February 7, 1992.
Our determination of the duration of time appellant could recover
compensatory damages is based on the finding that the AJ's decision
implied that the agency's failure to temporarily promote appellant for the
same length of time as the comparison employees constituted a continuing
violation.
Appellant's claim for compensatory damages involves only non-pecuniary
losses. Non-pecuniary losses are losses that are not subject to precise
quantification, including 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.
On appeal, appellant submitted a letter from her treating physician
(the physician), and a medical article, Thyroid Disease: How to Control
It. In his letter, the physician states that he has been counseling
appellant, from August 1992 to the present, on how to cope with stress
while trying to treat her hypertension brought on and heightened by
a pending EEO case and an Evans Area detail. Appellant contends
that this additional documentation establishes that the agency's
discriminatory actions aggravated her pre- existing thyroid condition.
The Commission notes, the AJ specifically found that appellant did
not present sufficient evidence to establish a connection between the
agency's discriminatory actions and her medical condition. Based on our
review of appellant's additional documentation, the Commission concurs
with the AJ's finding. Additionally, we find that the physician's
letter does not sufficiently establish that the agency's discriminatory
actions caused her hypertension, as the physician attributes appellant's
hypertension to stress caused by her participation in the EEO complaint
process and the Evans Area detail. We find that appellant 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). Furthermore, it is unclear whether the
physician attributes appellant's medical condition to her failure to
get a detail for the same length of time as her comparison co-workers
or appellant's placement in the detail.
The AJ found that appellant established that her emotional distress was a
direct result of the agency's discriminatory actions based on appellant's
testimony at the hearing. As the agency provided no evidence to rebut
appellant's assertions, the Commission concurs with the AJ's finding.
The Commission now determines the amount of compensatory damages to
be awarded for that harm. 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 appellant for the
actual harm caused by the agency's discriminatory action and attempt to
affix a reasonable dollar value to compensate her for that portion of
her 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 appellant.
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 appellant 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 appellant
endured, which took both sexual and nonsexual forms, led appellant to
suffer from anxiety, depression, emotional fatigue, occasional nightmares,
and insomnia.
Also, in Rountree v. Department of Agriculture, EEOC Appeal No. 019419606
(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 appellant is entitled to nonpecuniary damages in the amount
of $2,000.00. 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 appellant's
emotional pain and suffering, and the short duration (less than three
months) of the discriminatory act. We also considered the scant amount
of evidence concerning appellant's emotional harm and related symptoms,
including appellant's statement on appeal. Finally, we considered the
amounts awarded in similar cases. Based on all of these considerations,
we find that $2,000.00 is a proper award for the emotional harm which
appellant has suffered.
ORDER (C1092)
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 appellant nonpecuniary compensatory
damages in the amount of $2,000.00.
(2) 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.
STATEMENT OF RIGHTS ON APPEAL
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. �l6l4.604(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:
Jan 8, 1999
DATE Frances M. Hart
Executive Office
Executive Secretariat
1 The record does not provide an exact date as to when the position
was abolished. The AJ implies that the position was abolished when a
reorganization of the Concurrent Engineering Directorate took place.
However, the record does not provide an exact date as to when the
reorganization took place.