Marie Klein, Complainant,v.Daniel R. Glickman, Secretary, Department of Agriculture, Agency.

Equal Employment Opportunity CommissionOct 16, 2000
01982146 (E.E.O.C. Oct. 16, 2000)

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.