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.