Maria L. Guerra, Complainant,v.William J. Henderson, Postmaster General, United States Postal Service, (S.E./S.W. Region), Agency.

Equal Employment Opportunity CommissionJul 19, 2000
01982149 (E.E.O.C. Jul. 19, 2000)

01982149

07-19-2000

Maria L. Guerra, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, (S.E./S.W. Region), Agency.


Maria L. Guerra v. United States Postal Service

01982149

July 19, 2000

Maria L. Guerra, )

Complainant, )

) Appeal No. 01982149

v. )

) Agency No. 1-G-771-1101-94

William J. Henderson, )

Postmaster General, )

United States Postal Service, )

(S.E./S.W. Region), )

Agency. )

______________________________)

DECISION

Complainant timely initiated an appeal to the Equal Employment Opportunity

Commission (EEOC or Commission) from a final agency decision (FAD),

concerning the agency's award of compensatory damages.<1> The appeal is

accepted pursuant to 64 Fed. Reg. 37,644, 37,659 (1999)(to be codified

at 29 C.F.R. � 1614.405).

BACKGROUND

During the relevant period, complainant was employed as a Manual

Distribution Clerk with the agency's Main Postal Facility in Houston,

Texas. The record established that sexually explicit talk and jokes

occurred frequently in complainant's work unit. In the fall of 1993,

complainant's supervisor (Supervisor) began participating in this

inappropriate behavior by repeatedly making graphic reference to oral sex

and inviting complainant to engage in sex. After such an incident where

Supervisor made inappropriate remarks to her in front of co-workers,

complainant informed Supervisor that his comments were unwelcome and

unappreciated. Complainant stated that after informing Supervisor

of the unwelcomeness of his conduct, he not only failed to modify his

behavior but also began to follow her during her breaks and glare at her.

After the initial protest to Supervisor failed to stop his harassment,

complainant began to inform other supervisors of the harassment around

October of 1993. At some point thereafter, Supervisor was transferred

and no longer responsible for supervising complainant, however the

harassment did not end. When her attempts to stop harassment failed,

complainant went to her EEO office.

Thereafter, complainant filed a formal complaint of discrimination

which was investigated by the agency. After the completion of

the investigation, complainant requested a hearing before an EEOC

Administrative Judge (AJ) who issued a decision finding that the agency

was liable for the harassment because it failed to take immediate and

corrective action to prevent Supervisor from engaging in the inappropriate

conduct. In its FAD, the agency rejected the AJ's finding of sexual

harassment.

After complainant appealed the FAD, the Commission agreed with the AJ's

finding that complainant proved that the agency failed to take prompt

and effective remedial action to correct Supervisor's harassment.

See Guerra v. United States Postal Service, EEOC Appeal No. 01965639

(June 19, 1997). To remedy the established harassment, we ordered

the agency to offer complainant a transfer to an equivalent position

in another location or if she declined, to transfer Supervisor so that

complainant would no longer be in his chain of command. We also ordered

the agency to reimburse complainant all sick and/or annual leave used as

a result of the harassment and to conduct a supplemental investigation

for complainant's claim of compensatory damages.

On remand for the compensatory damages determination, complainant provided

answers to an agency questionnaire concerning her losses resulting

from the harassment and submitted medical reports and bills in support

of compensatory damages. Complainant stated that as a result of the

harassment, she experienced weight loss, heart palpitation, headaches,

apprehension and emotional stress. Complainant's physicians provided

reports indicating that the stress which result from the harassment

caused an aggravation of complainant's preexisting hypothyroidism,

hypoparathyroidism and myofascial pain syndrome. Complainant's

psychiatrist submitted a report stating that he had seen complainant

on four occasions between May and November of 1996, because of sleep

disturbance, weight loss, anxiety and irritability caused by alleged

workplace harassment. He further stated that he prescribed a sleep aid

and recommended that complainant participate in supportive individual

psychotherapy. Complainant also provided a statement from a friend,

who stated during the Fall of 1993, she noticed that complainant had

become an unhappy and frightened person because of the harassment by

her supervisor.

After evaluating the evidence, the agency issued a FAD finding

that complainant failed to establish entitlement to any pecuniary

damages. The FAD however found that complainant had proven that the

discrimination caused her some emotional harm, and awarded her $3,000.00

in non-pecuniary damages. Complainant thereafter appealed the agency's

compensatory damages determination contending that she provided evidence

sufficient to justify a compensatory damages award of $450,000.00.

ANALYSIS

Section 102(a) of the 1991 Civil Rights Act authorizes an award

of compensatory damages for post-Act pecuniary losses, and for

non-pecuniary 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. In this

regard, the Commission has authority to award such damages in the

administrative process. See West v. Gibson, 527 U.S. 212 (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

he has been harmed as a result of the agency's discriminatory action,

i.e., 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); EEOC's Enforcement Guidance:

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)

(�Guidance�).

A. Pecuniary Damages

Compensatory damages may be awarded for pecuniary losses that are

directly or proximately caused by the agency's discriminatory conduct.

See Guidance at 8. Pecuniary losses are out-of-pocket expenses incurred

as a result of the agency's unlawful action, including job-hunting

expenses, moving expenses, medical expenses, psychiatric expenses,

physical therapy expenses, and other quantifiable out-of-pocket expenses.

Id. Past pecuniary losses are losses incurred prior to the resolution

of a complaint through a finding of discrimination, the issuance of

a full-relief offer, or a voluntary settlement. Id. at 8-9. Future

pecuniary losses are losses that are likely to occur after resolution

of a complaint. Id. at 9. For claims seeking pecuniary damages, a

complainant should proffer objective evidence documenting out-of-pocket

expenses for all actual costs and an explanation of the expense, e.g.,

medical and psychological billings, other costs associated with the injury

caused by the agency's actions, and an explanation for the expenditure.

Id. at 9.

In this case, complainant provides physician and pharmaceutical bills

as evidence of pecuniary damages. The physician bills total $225.00,

while the pharmaceutical bills total $162.35. Complainant provided no

evidence of future pecuniary damages. In its FAD, the agency determined

that since complainant failed to show how the losses resulted from the

harassment, she was not entitled to a pecuniary award.

In reviewing the evidence, we disagree with the agency and find that

entitled to reimbursement for some of the medical expenses in question.

We find that the record documents that complainant sought treatment from

both her physician and psychiatrist as a result of the harassment.

The physicians indicate as much in their reports. This evidence

establishes that the injuries resulted from the harassment. As a result,

we order the agency to award complainant the $225.00 in physician bills.

As to the pharmaceutical bills, we find that complainant is entitled to

one-half of the requested amount, $81.18. In reaching this finding,

we note that complainant had been on the specific medication prior to

the harassment, but thereafter needed to double the dosage to cope with

the effects of the harassment. Therefore, we order the agency to pay

complainant a total of $306.18 in pecuniary damages.

B. Non-pecuniary Damages

Non-pecuniary damages constitute the sums necessary to compensate

the injured party for actual harm, even where the harm is intangible.

Carter v. Duncan-Higgins, Ltd., 727 F.2d 1225 (D.C. Cir. 1984). In cases

against agencies with over 500 employees, non-pecuniary damages are

limited to $300,000.00. We note that nonpecuniary losses for emotional

harm are more difficult to prove than pecuniary losses. See Guidance at 5.

Emotional harm will not be presumed simply because the complainant is

a victim of discrimination. Id. The existence, nature, and severity of

emotional harm must be proved. Id. The method for computing nonpecuniary

damages should typically be based on a consideration of the severity

and duration of harm. Carpenter v. Department of Agriculture, EEOC

Appeal No. 01945652 (July 17, 1995). In determining the severity of

the harm, consideration should be given to all resulting damage of

the discrimination, for example, whether the harm was accompanied by

occasional sleeplessness, or a nervous breakdown resulting in years

of psychotherapy. Guidance at 8. The duration of the emotional harm is

also relevant, meaning that a complainant who has suffered from severe

depression for two months may be awarded less money than a complainant

who has suffered from severe depression for a year. Id. at 8. We note

that for a proper award of non-pecuniary 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 Ward-Jenkins v. Department of

the Interior, EEOC Appeal No. 01961483 (March 4, 1999) (citing Cygnar

v. City of Chicago, 865 F.2d 827, 848 (7th Cir. 1989)).

Applying the above legal standards, we find that complainant has

established that she suffered emotional and physical harm as a result of

the harassment. The record contains medical opinions from complainant's

physicians and psychiatrist, and complainant's answers to the agency

questionnaire concerning compensatory damages. After the harassment

began, complainant sought treatment from her medical physicians for

increased pain associated with her hypothyroidism and hypoparathyroidism.

Her physicians later opined that complainant also suffered from

myofascial pain syndrome which was partially related to the stress

created by the harassment. Complainant's psychiatrist diagnosed her

with a non-descriptive adjustment disorder, prescribed medication, and

suggested continued therapy to remedy the emotional harm caused by the

alleged harassment. In addition, complainant's statement provided that

the harassment caused her to suffer from weight loss, heart palpitation,

headaches, apprehension and emotional stress.

We find that the uncontroverted evidence in the form of medical opinions

and her personal statement establishes complainant's entitlement to

non-pecuniary damages. While there is no dispute that complainant is

entitled to an award, the parties differ on the appropriate amount

necessary to remedy the harm caused by the harassment. The agency

offers that $3,000.00 properly compensates complainant for any harm

caused by the harassment. Complainant contends that the agency's award

is insufficient in light of the harassment and resulting harm, and asks

for an award of $450,000.00. Initially, we point out that non-pecuniary

compensatory damages are designed to remedy a harm and not to punish

the agency for its discriminatory actions. See Memphis Community School

Dist. v. Stachura, 477 U.S. 299, 311-12 (1986) (stating that compensatory

damages determinations must be based on the actual harm sustained and not

the facts of the underlying case). The amount of the award is dependent

on the evidence submitted explaining the nature, severity and duration of

the harm. In this case, the medical opinions are vague as to the nature,

severity and duration of complainant's injuries. The physicians' reports

state that her physical injuries were only partially related to the

underlying harassment and do not provide any detail as to the severity or

duration of these injuries. The psychiatrist's report is equally vague in

that it diagnosed complainant as being seen for �Adjustment Disorder, not

otherwise specified� and does not provide a prognosis for this condition.

We note that the Commission has awarded compensatory damages in cases

somewhat similar to complainant's case in terms of the harm sustained.

See, e.g., Baptieste v. Department of the Air Force, EEOC Appeal

No. 01974616 (May 26, 2000) ($12,000.00 in non-pecuniary damages based

on complainant's and others' statements of emotional distress due to

agency's discriminatory termination); Jones v. Department of Defense,

EEOC Appeal No. 01973551 (April 14, 2000) ($9,000.00 in non-pecuniary

damages based on complainant's statements of the interference with

family and marital relations, digestive problems, headaches, anxiety,

sleeplessness, and exhaustion resulting from the agency's discrimination);

Butler v. Department of Agriculture, EEOC Appeal No. 01971729 (April 15,

1999) ($7,500.00 in non-pecuniary damages based on complainant's testimony

regarding his emotional distress); Hull v Department of Veteran Affairs,

Appeal No. 01951441 (Sept. 18, 1998) ($12,000.00 in non-pecuniary

damages based on complainant's testimony of emotional distress due

to retaliatory harassment); White v. Department of Veterans Affairs,

EEOC Appeal No. 01950342 (June 13, 1997) ($5,000.00 in nonpecuniary

damages based on sparse testimony and medical evidence indicating

that harassment caused complainant's emotional distress); Roundtree

v. Department of Agriculture, EEOC Appeal No. 01941906 (July 7, 1995)

($8,000.00 in non-pecuniary damages where medical evidence testimony was

provided regarding complainant's emotional distress, but the majority

of complainant's emotional problems were caused by factors other than

the discrimination).

After analyzing the evidence which establishes the physical and emotional

harm sustained by complainant and upon consideration of damage awards

reached in comparable cases, the Commission finds that complainant is

entitled to an award of non-pecuniary damages in the amount of $10,000.00.

We find this case analogous to the above-referenced cases with respect

to the nature, severity and duration of the harm. In reviewing the

evidence, we find that complainant has suffered physical and emotional

harm in the form of exacerbation of her physical impairments, weight

loss, heart palpitation, headaches, apprehension and stress. Finally,

we note that this award is not motivated by passion or prejudice, is

not "monstrously excessive" standing alone, and is consistent with the

amounts awarded in similar cases. See Cygnar, 865 F.2d at 848.

CONCLUSION

Accordingly, based on a thorough review of the record, and for the

foregoing reasons, we MODIFY the FAD and ORDER the agency to comply with

the Order below.

ORDER (C1092)

To the extent it has not already done so, the agency is ORDERED to take

the following remedial action:

We hereby ORDER the agency to, within thirty (30) days of the date on

which this decision becomes final, tender to complainant $10,306.18 in

compensatory damages. This amount includes $306.18 in pecuniary damages

and $10,000.00 in non-pecuniary damages.

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 must 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).

ATTORNEY'S FEES (H1199)

If complainant has been represented by an attorney (as defined by 64

Fed. Reg. 37,644, 37,659-60 (1999) (to be codified and hereinafter

referred to as 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.

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:

July 19, 2000

Date Carlton M. Hadden, Acting Director

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.