01984033_r
11-22-1999
Mary C. Meyer, Appellant, v. Daniel R. Glickman, Secretary, Department of Agriculture, Agency.
Mary C. Meyer, )
Appellant, )
)
v. ) Appeal No. 01984033
) Agency Nos. 930315 & 931112
Daniel R. Glickman, )
Secretary, )
Department of Agriculture, )
Agency. )
______________________________)
DECISION
INTRODUCTION
Appellant filed an appeal with this Commission from a final decision
of the agency concerning her complaints of unlawful employment
discrimination, in violation of Title VII of the Civil Rights Act of
1964, as amended, 42 U.S.C. �2000e et seq. The final agency decision
was received by appellant on or about April 4, 1998. The appeal was
postmarked April 23, 1998. Accordingly, the appeal is timely (see 29
C.F.R. �1614.402(a)), and is accepted in accordance with EEOC Order
No. 960, as amended.
ISSUE PRESENTED
The issue on appeal is whether the agency properly limited appellant's
request for compensatory damages pursuant to the settlement agreement
dated February 15, 1995.
BACKGROUND
The record indicates that appellant filed two formal complaints and
one informal complaint on December 21, 1994, alleging discrimination
based on her sex (female) when since January 1993, she was subjected to a
continuing pattern of hostility and verbal abuse by her supervisor (male)
and she was denied training and promotional opportunities. The agency
investigated the matters and upon completion of the investigation,
appellant requested a hearing before an EEOC Administrative Judge.
During the prehearing conferences, the parties entered into a settlement
agreement dated February 15, 1995, which, provided in part, that appellant
would be paid �proven compensatory damages,� with a retroactive promotion
to GS-11/12 and back pay, including interest.
On April 21, 1995, appellant, through her attorney, requested $90,000.00
for compensatory damages, which represented approximately 2 years of
her earnings. Specifically, appellant indicated that her supervisor
made cruel verbal remarks that she, as a female, was not worthy of a
position in the workplace; he took away her meaningful assignments;
and he denied her training opportunities. As a result of the foregoing
discrimination, appellant claimed that she suffered apprehension, anxiety,
loss of self-esteem, isolation, loss of enjoyment of life, inconvenience,
humiliation, embarrassment, indignity, and worry. Appellant also
claimed that she suffered physically, mentally, and emotionally from post
polio syndrome, often requiring her to use crutches and a wheelchair.
She claimed that she gained approximately 50 pounds; suffered fatigue,
insomnia, and depression. Because of resulting stress and depression,
stated appellant, she was unable to report to work, forcing her to use
approximately 470 hours of annual/sick leave from June 1992 to October
1994; and she lost interest in doing ceramic and art work causing her
to lose revenue from sales thereof.
Appellant asserted that since her reassignment and promotion pursuant
to the settlement agreement at issue, her life was better and she was
regaining her confidence in the workplace. Appellant, however, stated
that her physical limitations associated with the post polio syndrome
were likely to remain. Appellant indicated that she had a mild form of
polio as a youth. In order to support her arguments, appellant submits
affidavits from her coworkers/friends and her daughter. Appellant,
however, did not submit any medical records concerning her physical
and/or mental conditions, including her post polio syndrome, nor did
she submit any evidence to support a loss of her income from sales of
ceramic and art work.
After investigating appellant's claim for compensatory damages, on March
23, 1998, the agency issued a final decision finding that appellant
was entitled to $50,000.00 in compensatory damages, including interest
thereon, pursuant to the settlement agreement. The agency stated
that appellant failed to offer any objective evidence of any loss of
earnings or wages other than that which she already received pursuant
to the settlement agreement. The agency also indicated that although
appellant claimed that she lost income from sales of her ceramic and
art work, she offered no objective evidence as to the specific amount
of lost revenue/profits, or even to establish that she did, in fact,
engage in such work. The agency noted that appellant also failed to
respond to the investigator's request for her income tax returns which
would support such a claim. Based on the foregoing, the agency found
no basis for an award of pecuniary damages for appellant.
With regard to nonpecuniary damages, the agency indicated that appellant
produced substantial evidence bearing on injury and causation, which
supported a finding of a causal connection between the agency's actions
and the resulting deterioration of her emotional condition. After a
review of statements from appellant, her friends, and her daughter,
and considering the duration of her stress, pain, humiliation, and
suffering of approximately 2 years, the agency concluded that appellant
was entitled to $50,000.00. The agency noted that in arriving at this
amount, it considered the length of time appellant was assigned to the
responsible supervisor, the severity of his discriminatory work place
behavior towards appellant, and the resulting emotional and physical
stress suffered by appellant. The agency further noted that it also
considered the statements from appellant's daughter and friends that
since being removed from the responsible supervisor's surveillance and
control, she began to improve and although �not yet normal . . . was
moving in that direction.�
On appeal, appellant, through her attorney, reiterating her arguments
previously made, contends that she is entitled to $90,000.00 in
compensatory damages.
ANALYSIS AND FINDINGS
Settlement agreements are contracts between the appellant and the agency
and it is the intent of the parties as expressed in the contract, and not
some unexpressed intention, that controls the contract's construction.
Eggleston v. Department of Veterans Affairs, EEOC Request No. 05900795
(August 23, 1990). In addition, the Commission generally follows the
rule that if a writing appears to be plain and unambiguous on its face,
its meaning must be determined from the four corners of the instrument
without resort to extrinsic evidence of any nature. See Montgomery
Elevator v. Building Engineering Services, 730 F.2d 377 (5th Cir. 1984).
The Commission has followed this rule when interpreting settlement
agreements. The Commission's policy in this regard is based on the
premise that the face of the agreement best reflects the understanding
of the parties.
The record indicates that the parties entered into the settlement
agreement at issue resolving appellant's complaints. According to
the settlement agreement, the agency agreed to pay appellant �proven
compensatory damages.�
Section 102(a) of the Civil Rights Act of 1991, 105 Stat. 1071,
Pub. L. No. 102-166, codified at 42 U.S.C. �1981a, authorizes an award
of compensatory damages as relief for intentional discrimination in
violation of Title VII of the Civil Rights Act of 1964, as amended.
Section 1981a(b)(2) indicates that compensatory damages do not include
back pay, interest on back pay, or any other type of equitable relief
authorized by Title VII.
The Commission has held that compensatory damages are recoverable in the
administrative process, including resolutions by settlement. See Jackson
v. USPS, EEOC Appeal No. 01923399 (November 12, 1992), request for
reconsideration denied, EEOC Request No. 05930306 (February 1, 1993);
Turner v. Department of Interior, EEOC Appeal No. 01956390 (April 28,
1998); Bever v. Department of Agriculture, EEOC Appeal No. 01953949
(October 31, 1996).
Compensatory damages are awarded for losses and suffering due to the
discriminatory acts or conduct of the agency and include past pecuniary
losses, future pecuniary losses, and nonpecuniary 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. N 915.002 at 8 (July 14,
1992). Pecuniary losses are out-of-pocket expenses, including medical
expenses and other quantifiable costs. Id. Past pecuniary losses are
out-of-pocket losses that occurred prior to the date of 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, nonpecuniary
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.
Compensatory damages may be awarded for all pecuniary and nonpecuniary
losses post-dating November 21, 1991, effective date of the Civil Rights
Act of 1991. See Landgraf v. USI Film Products, 114 S. Ct. 1483 (1994).
The complainant must provide objective evidence in support of his/her
claim and proof linking the damages to the alleged discrimination.
See Papas v. USPS, EEOC Appeal No. 01930547 (March 17, 1994); Mims
v. Department of the Navy, EEOC Appeal No. 01933956 (November 24, 1993).
The objective evidence must demonstrate that he/she 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 22, 1994); see EEOC Notice at 11-12, 14. Objective 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 action. Id. at 9. A claim for nonpecuniary damages may include
objective 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).
Initially, we note that there is no evidence to support a claim for past
or future pecuniary loss in the present case. The record indicates that
appellant has failed to provide any evidence concerning medical bills
and failed to present evidence of any out-of-pocket expenses, including
loss of revenue from sales of her ceramic and art work. Accordingly,
the only issue before us is the amount of nonpecuniary damages to which
appellant is entitled.
Nonpecuniary damages are limited to the sums necessary to compensate the
injured party for his/her actual harm, even where that harm is intangible.
See Carter v. Duncan - Higgins Ltd., 727 F.2d 1225 (D.C. Cir. 1984).
Such damages must take into account the severity of the harm and
the length of time that the injured party has suffered from the harm.
Carpenter v. Department of Agriculture, EEOC Appeal No. 01945652 (July 17,
1995); EEOC Notice at 14. Also, the absence of supporting evidence may
affect the amount of damages deemed appropriate. See Lawrence v. USPS,
EEOC Appeal No. 01952288 (April 18, 1996).
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 appellant, 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 several cases. Bever v. Department
of Agriculture, supra, ($15,000 awarded upon finding of hostile work
environment, which produced psychological harm directly linked to
agency's discrimination); Sinnott, supra, ($20,000 upon finding of sexual
harassment, where nature, severity, and duration of harm considered);
Benson v. Department of Agriculture, EEOC Appeal No. 01952854 (June 27,
1996) ($5,000 sufficient to compensate for embarrassment and humiliation);
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); Lawrence
v. USPS, supra, ($3,000 for emotional harm, which resulted from hostile
work environment after cessation of consensual affair with supervisor);
Kelly v. Department of Veterans Affairs, EEOC Appeal No. 01951729
(July 29, 1998) ($100,000 awarded upon finding of 5 years of hostile
work environment, which produced emotional distress and related
symptoms and aggravation of mental condition); and Wallis v. USPS,
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 that
the agency arrived at a fair determination when it awarded appellant
nonpecuniary damages in the amount of $50,000.00, pursuant to the
settlement agreement. In reaching this decision, we considered a
number of factors including: the nature, severity, and duration of the
discrimination, and the nature, severity, and duration of appellant's
emotional stress and depression and related symptoms, including the post
polio syndrome. Specifically, we have carefully examined appellant's
explanation of her emotional distress from the incidents complained of
based on her statement and supporting information from her friends and
daughter. We also considered the fact that appellant did not provide
any medical documents pertaining to her physical or mental conditions,
including her post polio syndrome. Based on these considerations,
we find that $50,000.00 is a proper award.
CONCLUSION
Based on a thorough review of the record, and for the foregoing reasons,
the agency's decision that appellant was entitled to $50,000.00 in
compensatory damages pursuant to the settlement agreement was proper
and is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0795)
The Commission may, in its discretion, reconsider the decision in this
case if the appellant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. New and material evidence is available that was not readily available
when the previous decision was issued; or
2. The previous decision involved an erroneous interpretation of law,
regulation or material fact, or misapplication of established policy; or
3. The decision is of such exceptional nature as to have substantial
precedential implications.
Requests to reconsider, with supporting arguments or evidence, MUST
BE FILED WITHIN THIRTY (30) CALENDAR DAYS of the date you receive this
decision, or WITHIN TWENTY (20) CALENDAR DAYS of the date you receive
a timely request to reconsider filed by another party. Any argument in
opposition to the request to reconsider or cross request to reconsider
MUST be submitted to the Commission and to the requesting party
WITHIN TWENTY (20) CALENDAR DAYS of the date you receive the request
to reconsider. See 29 C.F.R. �1614.407. All requests and arguments
must bear proof of postmark and 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 filed on the date it is received
by the Commission.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely. If extenuating circumstances
have prevented the timely filing of a request for reconsideration,
a written statement setting forth the circumstances which caused the
delay and 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).
RIGHT TO FILE A CIVIL ACTION (S0993)
It is the position of the Commission that 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.
You should be aware, however, that courts in some jurisdictions have
interpreted the Civil Rights Act of 1991 in a manner suggesting that
a civil action must be filed WITHIN THIRTY (30) CALENDAR DAYS from the
date that you receive this decision. To ensure that your civil action
is considered timely, you are advised to file it WITHIN THIRTY (30)
CALENDAR DAYS from the date that you receive this decision or to consult
an attorney concerning the applicable time period in the jurisdiction
in which your action would be filed. 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 (Z1092)
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:
November 22, 1999
DATE Frances M. Hart
Executive Officer
Executive Secretariat