01991818
09-22-2000
Marna Hansen, Complainant, v. Daniel R. Glickman, Secretary, Department of Agriculture (Forest Service), Agency.
Marna Hansen v. Department of Agriculture (Forest Service)
01991818
September 22, 2000
.
Marna Hansen,
Complainant,
v.
Daniel R. Glickman,
Secretary,
Department of Agriculture
(Forest Service),
Agency.
Appeal No. 01991818
Agency No. 941227
DECISION
Marna Hansen (complainant) timely initiated an appeal from a final
agency decision (FAD 2) concerning an award of compensatory damages,
issued in accordance with a prior FAD (FAD 1). FAD 1 found that the
agency violated Title VII of the Civil Rights Act of 1964, as amended,
42 U.S.C. � 2000e et seq. when it discriminated against complainant
on the basis of reprisal (prior protected activity).<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).
ISSUE PRESENTED
The issue on appeal is whether complainant established that she is
entitled to compensatory damages beyond the $5,000.00 awarded by the
agency.
BACKGROUND
Complainant filed an EEO complaint in which she alleged she had been
discriminated against on the bases of her sex and prior protected
activity when: (1) she was detailed out of her position on May 23,
1994; (2) her subsequent request to return to her permanent position
was refused; (2) she was separated from the agency in October 1994; and
(4) she was denied administrative leave. Complainant alleged that the
agency took these actions against her after she removed pictures of nude
females which were displayed on a wall at the work site and notified the
District Ranger of her action. At the conclusion of the investigation,
complainant was informed of her right to request a hearing before an EEOC
Administrative Judge or alternatively, to receive a final decision by
the agency. Complainant requested that the agency issue a final decision.
The agency issued FAD 1 on June 16, 1997. Therein, the agency found that
it had subjected complainant to discrimination on the basis of her prior
protected activity (removal of pictures that had the potential of creating
a hostile work environment) when she was detailed out of her position
and when her request to return to her position was refused. The agency
indicated that complainant could submit evidence of compensatory damages
associated with the detail. FAD 1 went on to note that complainant failed
to establish reprisal discrimination in regard to issues 3 and 4. FAD 1
concluded that complainant had not been subjected to sex discrimination.
Although the agency attached the appropriate appeal rights to FAD 1,
complainant did not file an appeal. She did, however, submit a claim
for compensatory damages, requesting $1,240,949.00 in pecuniary damages
and $50,000.00 in non-pecuniary damages.
On November 23, 1998, the agency issued FAD 2 on the issue of compensatory
damages. The agency awarded complainant $5,000.00. The agency concluded
that complainant did not establish her entitlement to any past or future
pecuniary damages. Specifically, the agency found complainant's claim
for $1,232,796.00 for wages she would have earned had she not resigned
from the agency in 1994 to be front pay and therefore not recoverable as
compensatory damages. The agency also noted that FAD 1 had not found
that complainant had been constructively discharged and that she was
therefore not entitled to relief stemming from her separation allegation.
The agency then noted that complainant failed to establish that her
requested medical costs in the amount of $8,153.00 were causally related
to the discriminatory detail or the denial of her request to return to
her permanent position. Instead, the evidence indicated that complainant
incurred medical costs because she was diagnosed with multiple sclerosis
after she left the agency. The agency found that the doctor's statement
that her multiple sclerosis �can/has been exacerbated by stress� did not
establish that it was causally related to the agency's discriminatory
actions. Finally, the agency noted that even if there was a sufficient
causal connection, complainant had failed to submit sufficient evidence
regarding the nature, extent or duration of her medical care.
The agency did determine, however, that complainant was entitled
to $5,000.00 in non-pecuniary damages based on her statements that
the discriminatory treatment caused emotional trauma such as shame,
embarrassment, depression, and insomnia. It is this decision from which
complainant now appeals.
CONTENTIONS ON APPEAL
On appeal, complainant essentially restates her underlying claim,
arguing that she was subjected to sex and reprisal discrimination and
reiterating the specifics of her compensatory damages claim.
The agency requests that we affirm FAD 2.
FINDINGS AND ANALYSIS
Pursuant to section 102(a) of the Civil Rights Act of 1991, a complainant
who establishes her claim of unlawful discrimination may receive, in
addition to equitable remedies, compensatory damages for past and future
pecuniary losses (i.e., out-of-pocket expenses) and non-pecuniary losses
(e.g., pain and suffering, mental anguish). 42 U.S.C. � 1981a(b)(3).
For an employer with more than 500 employees, such as the agency,
the limit of liability for future pecuniary and non-pecuniary damages
is $300,000. Id. The Supreme Court has recently confirmed that the
Commission possesses the legal authority to require federal agencies to
pay compensatory damages. See West v. Gibson, 527 U.S. 212 (1999).
The particulars of what relief may be awarded, and the proof necessary to
obtain that relief, are set forth in detail in Compensatory and Punitive
Damages Available Under Section 102 of the Civil Rights Act of 1991,
EEOC Notice No. N-915.002 (July 14, 1992) (Compensatory Damages Notice).
Briefly stated, the complainant must submit evidence to show that the
agency's discriminatory conduct directly or proximately caused the losses
for which damages are sought. See Damiano v. United States Postal
Service, EEOC Request No. 05980311 (February 26, 1999). The amount
awarded should reflect the extent to which the agency's discriminatory
action directly or proximately caused harm to complainant and the extent
to which other factors may have played a part. See Compensatory Damages
Notice, at 11-12. The amount of non-pecuniary damages should also
reflect the nature and severity of the harm to complainant, and the
duration or expected duration of the harm. Id. at 14. A complainant
is required to provide evidence that will allow an agency to assess the
merits of complainant's request for emotional distress damages. See Carle
v. Department of the Navy, EEOC Appeal No. 01922369 (January 5, 1993).
Evidence of Injury and Causation
The agency found that complainant was discriminated against when she
was detailed out of her position and when her request to return to her
position was refused. Complainant stated that this discrimination
affected her emotional and physical well-being. Moreover, in its
decision awarding compensatory damages, the agency acknowledged a
causal connection between its discriminatory actions and some portion
of the distress complainant suffered, including embarrassment, feelings
of shame, and damage to her reputation.
Accordingly, complainant has established that at least some portion of
her harm was caused by the agency's discriminatory conduct.
Calculation of Damages
1. Past and Future Pecuniary Damages
Complainant requested compensation for wages she would have earned �had
the unfair reprisal incident not occurred� in the amount of $1,232,796.00.
We agree with the agency that this is an attempt to obtain front pay
and note that front pay cannot be awarded as future pecuniary losses.
See Compensatory Damages Notice, at 6, 9. Complainant also requested
four years of college tuition so that she could be retrained and obtain
a new job due to the fact that after her separation from the agency she
was unable to locate another job. We note, however, that the agency
found that complainant's separation from the agency was not caused by
discrimination. Complainant did not appeal that determination.<2> Any
damages she sustained due to her separation from the employment of the
agency are therefore not compensable.
Complainant also requested $8,153.00 in medical expenses that she incurred
after being diagnosed with probable multiple sclerosis approximately
eight months after resigning from the agency. In support of her claim
that this diagnosis, and therefore these expenses, are causally connected
to the agency's discriminatory actions, complainant submitted a note from
her doctor which stated: �Miss Hansen has probable multiple sclerosis,
which can/has been exacerbated by stress.� Without deciding whether
such evidence is sufficient to establish the necessary causal connection
to the agency's actions, we note that complainant provided insufficient
documentary evidence of these expenses, submitting only her tax returns
for the years in question, which claim $8,153.00 in medical and dental
expenses. There is no evidence as to the nature, extent or duration of
her medical care and nothing that allows a determination as to what the
claimed medical and dental expenses pertain to. Consequently, we cannot
award compensation for these costs. See Hogeland v. United States
Department of Agriculture, EEOC Appeal No. 01976440 (June 14, 1999)
Complainant did not request any other pecuniary damages. Accordingly,
we agree with the agency's determination that complainant is not entitled
to past or future pecuniary damages.
Non-pecuniary Damages
There are no definitive rules governing the amount of non-pecuniary
damages to be awarded. Non-pecuniary damages must be limited, however,
to the sums necessary to compensate the injured party for actual harm,
even where the harm is intangible. The existence, nature, and severity of
emotional harm must be proved. See Compensatory Damages Notice, at 11.
Emotional harm may manifest itself, for example, as sleepiness, anxiety,
stress, depression, marital strain, humiliation, emotional distress,
loss of self esteem, excessive fatigue, or a nervous breakdown. Id.
A proper award should take into account the severity of the harm and the
length of time that the injured party suffered the harm. See Carpenter
v. Department of Agriculture, EEOC Appeal No. 01945652 (July 17, 1995).
Finally, 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 Jackson v. United States Postal Service, EEOC Appeal No. 01972555
(April 15, 1999), citing Cyanar v. City of Chicago, 865 F. 2d 827, 848
(7th Cir. 1989).
Here, complainant stated that the discrimination she suffered caused undue
emotional trauma resulting in feelings of shame, failure, embarrassment,
anger, fear, mistrust, self-doubt, low self-esteem, low moral, lack
of motivation and depression. She also noted that her reputation was
damaged when the agency informed a local newspaper that the staff at
complainant's facility had been removed because they were dysfunctional.
This added to her stress as her family read the article before she was
able to explain the situation to them. Complainant also stated that the
stress caused by the agency's discrimination led to tension throughout
her body that is only occasionally relieved by hot baths. She further
noted that she has trouble sleeping due to the agency's actions.
While complainant also argued that her multiple sclerosis was exacerbated
by the stress of discrimination, the only medical evidence in the record
on this point is the aforementioned note from a doctor stating that the
illness �can/has been exacerbated by stress.� While evidence from a
health care professional is not a mandatory prerequisite for recovery
of compensatory damages for emotional distress, it is useful in cases
involving the exacerbation of an illness. See Lawrence v. United States
Postal Service, EEOC Appeal No. 01952288 (April 18, 1996); Hogeland,
supra. With this in mind, we now turn to a review of non-pecuniary
damage awards in previous Commission decisions.
While there is no dispute that complainant is entitled to non-pecuniary
damages, the parties differ on the appropriate amount necessary to
remedy the discrimination. Complainant contends that she should receive
$50,000.00 and the agency contends that $5,000.00 properly compensates
complainant for the underlying discrimination. We note that the
Commission has awarded compensatory damages in cases somewhat similar
to complainant's. See, e.g., Sprague v. Department of Agriculture,
EEOC Appeal No. 01985144 (April 27, 2000) ($15,000.00 in non-pecuniary
damages to a complainant who suffered from the impact of age and reprisal
discrimination for a period of one month, based on complainant's
narrative account of his stress and loss of interest in recreational
activities); Jones v. Department of Defense, EEOC Appeal No. 01973551
(April 14, 2000) ($7,500.00 in non-pecuniary damages for non-selection
and denial of training based on testimony from complainant, his wife,
and a co-worker as to complainant's emotional harm complainant suffered);
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); Miller v. United States Postal Service,
EEOC Appeal No. 01956109 (January 23, 1998) ($7,500.00 in non-pecuniary
damages where complainant produced scant evidence to support his claim).
In determining the amount of non-pecuniary damages to which complainant in
the case at hand is entitled, the Commission has considered the nature
and severity of the discrimination endured by complainant over a five
month period after she removed pictures of nude females from a wall
at the facility, as well as the nature and severity of complainant's
emotional distress. Finally, we have taken into consideration amounts
awarded in similar cases and the goals of compensatory damages. Based on
these factors, the Commission finds that complainant is entitled to
non-pecuniary damages in the amount of $9,000.00.
CONCLUSION
Based upon our review of the record, and for the foregoing reasons, we
hereby MODIFY the FAD. The Commission finds that complainant is entitled
to receive an award of compensatory damages in the amount of $9,000.00,
all of which constitutes compensation for non-pecuniary damages.
ORDER
Within thirty (30) calendar days of the date that this decision becomes
final, the agency shall issue a check to complainant in the amount
of $9,000.00. The agency is further directed to submit a report of
compliance, as provided in the statement below entitled �Implementation
of the Commission's Decision.� The report shall 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:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
September 22, 2000
__________________
Date
1On 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.
2 In her appeal from the agency's compensatory damages determination,
complainant argues that she was constructively discharged, contrary to
the agency's determination in FAD 1. The record establishes, however,
that complainant did not file a timely appeal upon receiving FAD 1.