01982146
10-16-2000
Marie Klein, Complainant, v. Daniel R. Glickman, Secretary, Department of Agriculture, Agency.
Marie Klein v. Department of Agriculture
01982146
October 16, 2000
.
Marie Klein,
Complainant,
v.
Daniel R. Glickman,
Secretary,
Department of Agriculture,
Agency.
Appeal No. 01982146
Agency No. 930518
INTRODUCTION
On December 24, 1997, complainant filed a timely appeal from the
November 24, 1997 final decision of the agency concerning an award of
compensatory damages under the terms of a November 16, 1995 settlement
agreement resolving a complaint brought by the complainant against the
agency for 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 Rehabilitation Act of 1973, as amended, 29 U.S.C. � 791, et
seq.<1> The appeal is accepted in accordance with 29 C.F.R. � 1614.405.
For the reasons that follow, the agency's decision is AFFIRMED.
ISSUE PRESENTED
The issue presented in this appeal is whether the agency has paid
complainant all compensatory damages due her under the terms of the
Settlement Agreement dated November 16, 1995.
BACKGROUND
Complainant filed her formal complaint against the agency on May 18, 1993,
complaining of harassment by a coworker and alleging discrimination
on the basis of sex (Female) and disability (bi-polar condition).
The harassment allegedly began after complainant gave evidence against
the co-worker concerning an altercation complainant had witnessed between
the co-worker and his supervisor.
On November 16, 1995, the parties entered into a Settlement Agreement
(SA). Paragraph 2 of the SA provides:
Pay proven compensatory damages. Ms. Klein has 30 calendar days from the
date of the execution of this agreement to provide proof of damages to
the Agency. Within 60 days of receipt of the proof of damages, the Agency
may conduct an appropriate inquiry and will issue to the complainant
a decision on the amount of damages which will be paid by the Agency.
Ms. Klein retains the right to appeal the Agency's decision on the amount
of compensatory damages awarded, to the EEOC or Federal Court.
Complainant submitted evidence in support of her compensatory damages
claim in the form of medical records and affidavits from health care
providers, co-workers and her husband. She contended that the harassment
she suffered at the hands of her co-worker had caused her distress to
such a degree that her pre-existing mental problems worsened, resulting
in her inability to work and other problems, including multiple suicide
attempts. She sought to be awarded compensatory damages in the amount
of $200,000.
In the FAD, the agency accepted complainant's contention that the
harassment she had suffered was the proximate cause of her injuries.
However, it rejected her claim for future lost wages as speculative.
The agency awarded complainant $47,510.00 in nonpecuniary damages for
the emotional distress she had endured as a result of the harassment.
From the FAD, complainant brings the instant appeal.
LEGAL STANDARD
Compensatory damages are awarded for losses and suffering due to the
discriminatory act or conduct of the agency and include past pecuniary
losses, future pecuniary losses, and non-pecuniary losses that are
directly or proximately caused by the agency's discriminatory conduct.
See Compensatory and Punitive Damages Available Under Section 102 of
the Civil Rights Act of 1991, EEOC Notice No. N915.002 (July 14, 1992)
(EEOC Notice) at 8. Pecuniary losses are out-of-pocket expenses, including
medical expenses and other quantifiable costs. Id. Past pecuniary losses
are those losses that are likely to occur before resolution of a complaint
and future pecuniary losses are losses that are likely to occur after
resolution of a complaint. Id. at 8-9. Finally, non-pecuniary losses are
those intangible losses, not subject to precise quantification, e.g.,
emotional pain and 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. Id. at 10.
In order to recover compensatory damages the complainant must provide
evidence in support of his or her claim and proof linking the damages to
the alleged discrimination. See Papas v. United States Postal Service,
EEOC Appeal No, 01930547 (March 17, 1994); Mims v. Department of the
Navy, EEOC Appeal No. 01933956 (November 24, 1993). The evidence
must demonstrate that s/he 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 220, 1994); see EEOC Notice, supra,
at 11-12, 14. Evidence may include, inter alia, documents, accompanied
by an explanation showing actual, out-of-pocket expenses for all medical
treatment, psychological counseling, and any other cost associated with
the injury caused by the agency's actions. EEOC Notice, supra at 9.
A claim for nonpecuniary damages may be proved through evidence such as
statements from the complainant, from others, including family members
and coworkers, and from medical professionals. See Carle v. Department
of the Navy, EEOC Appeal No. 01922369 (January 5, 1993).
ANALYSIS AND FINDINGS
Future Pecuniary Damages
Complainant seeks to recover future pecuniary damages she believes she
will suffer in the form of lost income. She contends that the bi-polar
condition she now endures as the result of the harassment will continue
indefinitely and prevent her from working for the remainder of her life.
Complainant asks that she be awarded compensation for the lost wages
that will result.
We conclude that the record evidence on the likely future course of
complainant's condition is too speculative to permit an award of future
pecuniary damages. The most recent medical testimony concerning the
prognosis for complainant's condition is the statement, dated August 6,
1996, by complainant's physician that he anticipated that complainant
would require �closer supervision at this point, until such time as her
mood stabilizes.� There is no evidence upon which we can base a finding
of the likely duration of complainant's inability to work. Therefore,
we have no means of estimating complainant's future lost wages and
recovery for those losses must be denied. See Smith v. Department of
Defense, EEOC Appeal No. 01943844 ((May 8, 1996).
Nonpecuniary Damages
The Commission recognizes that awards for nonpecuniary damages based
on emotional distress awarded in the judicial system have varied
considerably. Sinnott v. Department of Defense, EEOC Appeal No. 01952872
(September 19, 1996). Nevertheless, taking into account the nature and
severity of harm to the complainant, the actual duration of the harm,
and limiting the award to damages incurred after the effective date of
the Civil Rights Act, the Commission has approved awards of nonpecuniary
compensatory damages in numerous cases. Ward - Jenkins v. Department
of the Interior, EEOC Appeal No. 01 961483 (March 4, 1999) ($50,000 in
non-pecuniary damages for retaliation which exacerbated pre-existing
Borderline Personality Disorder); Bever v. Department of Agriculture,
EEOC Appeal No. 01953949 (October 31, 1996), ($15,000 awarded upon finding
of hostile work environment, which produced psychological harm directly
linked to agency's discrimination); Smith v. Department of Defense,
EEOC Appeal No.01943844 (May 9, 1996)($25,000 awarded upon finding of
sexual harassment, which caused four hospitalizations for psychiatric
treatment within 6 months); and Wallis v. United States Postal Service,
EEOC Appeal No. 01950510 (November 13, 1995) ($50,000 awarded where
agency's acts of reprisal substantially contributed to worsening of
complainant's pre-existing mental condition; complainant's treating
psychiatrist indicated that complainant had experienced symptoms of
depression which had progressively worsened to the point that he had
to take anti-depressive medication and that complainant's feelings of
frustration and persecution had become more intense).
After a careful consideration of the facts in this case, we find no basis
for increasing the amount of nonpecuniary damages awarded to complainant.
In reaching this decision, we have considered a number of factors
including: the nature, severity, and duration of the discrimination,
and the nature, severity, and duration of complainant's resulting
emotional stress, and related bi-polar condition. Specifically, we
have carefully examined complainant's description of her emotional
distress together with supporting information from her health care
providers, supervisor and husband. We have also considered the fact that
causes other than discrimination, including serious domestic problems,
contributed to complainant's condition. Finally we have reviewed earlier
Commission decisions involving comparable factual situations and the
amounts of nonpecuniary damages awarded in those cases. Based on these
considerations, we cannot find that an award of $47,510.00 in nonpecuniary
damages will result in complainant being undercompensated.
CONCLUSION
Based on a thorough review of the record, and for the foregoing reasons,
the agency's decision is AFFIRMED.
ORDER (C0900)
The agency is ordered to take the following remedial action:
If it has not already done so, pay to complainant the sum of $47,510.00.
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 (K0900)
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 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 29 C.F.R. � 1614.409.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0900)
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 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 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
(R0900)
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:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
October 16, 2000
__________________
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 29 C.F.R. Part 1614 in deciding the
present appeal. The regulations, as amended, may also be found at the
Commission's website at www.eeoc.gov.