Rickey A. Bryant, Complainant,v.William J. Henderson, Postmaster General, United States Postal Service, (S.E./S.W. Region), Agency.

Equal Employment Opportunity CommissionMay 11, 2000
01993010 (E.E.O.C. May. 11, 2000)

01993010

05-11-2000

Rickey A. Bryant, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, (S.E./S.W. Region), Agency.


Rickey A. Bryant, )

Complainant, )

) Appeal No. 01993010

v. )

) Agency No. 1-H-311-0017-97

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

Complainant, a General Expediter, with the agency's Processing

Distribution Plant in Macon, Georgia, filed a formal complaint on

February 10, 1997, alleging discrimination in the agency's handling of

his allegation that a co-worker had threatened him. The agency accepted

the complaint and conducted an investigation. At the conclusion of

the investigation, complainant requested a hearing before an EEOC

Administrative Judge (AJ). Following a hearing, the AJ issued a

Recommended Decision (RD) concluding that complainant was discriminated

against when the agency failed to reasonably accommodate his physical

disability (deafness) by not providing a certified interpreter during

a meeting concerning the alleged threats.

In its FAD, the agency adopted the AJ's discrimination finding. As part

of the ordered remedy, the agency provided complainant the opportunity

to submit evidence to support his claim for compensatory damages.

After receiving complainant's response, the agency issued a separate

FAD concluding that based on the lack of objective evidence, complainant

was not entitled to compensatory damages.<2>

Complainant appeals the agency's compensatory damages decision.

Specifically, complainant contends that the agency erred in its

determination and that he provided sufficient evidence to justify an

award of $300,000 for emotional pain, loss of self-esteem, embarrassment,

humiliation, fear and defamation.

ANALYSIS

Section 102(a) of the 1991 Civil Rights Act authorizes an award

of compensatory damages for all 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; 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 complainant is required to provide evidence that will allow an agency

to assess the merits of his request for damages. See Carle v. Department

of the Navy, EEOC Appeal No. 01922369 (January 5, 1993).

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. In this case, complainant has failed to provide

any evidence of pecuniary damages. There are no receipts, records,

bills, canceled checks, or other proof of actual losses and expenses.

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). The

award should take into account the severity and duration of the harm.

Carpenter v. Department of Agriculture, EEOC Appeal No. 01945652 (July

17, 1995). Non-pecuniary and future pecuniary damages are limited

to an amount of $300,000.00. The Commission notes 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)). A complainant is required to provide

evidence that will allow an agency to assess the merits of a complainant's

request for emotional distress damages. See Sinott v. Department of

Defense, EEOC Appeal No. 01952872 (September 19, 1996) (explaining

that a complainant's own testimony, along with the circumstances of a

particular case, can establish mental or emotional harm); see also, Carle

v. Department of the Navy, EEOC Appeal No. 01922369 (January 5, 1993).

Applying the above legal standards, we disagree with the agency and

find that complainant has established that he suffered emotional harm

as a result of the agency's discrimination. While complainant did not

submit any medical or corroborating witness evidence, the record contains

complainant's affidavit concerning his request for compensatory damages.

Complainant's affidavit states that due to the ineffective action by

management in handling the situation with his co-worker, he experienced

stress, intimidation, fear and loss of self-esteem.<3> We find that

this uncontroverted evidence establishes complainant's entitlement to

non-pecuniary compensatory damages.

We note that the Commission has awarded compensatory damages in cases

somewhat similar to complainant's case in terms of the harm sustained.

Sanchez v. United States Postal Service, EEOC Appeal No. 01975022 (October

28, 1999)($1,500.00 in non-pecuniary damages based on complainant's

hearing testimony of how the discrimination resulted in his experiencing

stress at home and at work, and interference with his enjoyment of life in

general); Yates v. United States Postal Service, EEOC Appeal No. 01973250

(March 11, 1999)($1,500.00 in nonpecuniary damages where complainant

provided only sparse statements during the hearing regarding his emotional

distress); Pailin v. Department of Defense, EEOC Appeal No. 019514350

(January 26, 1998)($2,500.00 in nonpecuniary damages where complainant was

denied training on the basis of race, and testified that she experienced

tension, depression, and withdrawal from coworkers); DeMeuse v. United

States Postal Service, EEOC Appeal No. 01950324 (May 22, 1997)($1,500.00

in nonpecuniary damages where complainant was frisked by a supervisor,

and testified as to exacerbation of post-traumatic stress disorder).

In the present case, the only evidence concerning emotional or mental

harm comes from complainant's pre-hearing investigation affidavit.

While we find complainant's description of his emotional suffering

credible, we also find that this evidence does not reveal an injury

of the severity to merit a large nonpecuniary award. The Commission

generally awards large nonpecuniary awards in cases where a complainant

establishes severe emotional harm and/or a long-term injury. See Finlay

v. United States Postal Service, EEOC Appeal No. 01942985 (April 29, 1997)

($100,000 in nonpecuniary damages for severe psychological injury over

four years which was expected to continue for an indeterminate period of

time ); Wallis v. United States Postal Service, EEOC Appeal No. 01950510

(November 13, 1995) ($50,000.00 in nonpecuniary damages for aggravation

of pre-existing emotional condition, where effects were expected to last

at least seven years). After analyzing the evidence which establishes

the stress and emotional discomfort 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 $1,500.00. We note that this case is analogous to

the above-mentioned cases with respect to the evidence of severity and

duration of the harm. We further note that this award meets the goals

of not being motivated by passion or prejudice, not being "monstrously

excessive" standing alone, and being 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, the Commission

REVERSES the agency's decision regarding compensatory damages and REMANDS

the matter to the agency to take remedial actions in accordance with

this decision and the ORDER below.

ORDER (C1092)

Within thirty (30) days of the date on which this decision becomes

final, the agency shall tender to complainant non-pecuniary compensatory

damages in the amount of $1,500.00. 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 must include

evidence that the corrective action has been implemented.

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.

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).

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:

May 11, 2000

Date Carlton M. Hadden, Acting Director

Office of Federal Operations

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.

2 The agency sent complainant a compensatory damages questionnaire which

solicited information concerning complainant's present and past medical

history. In response, complainant submitted a statement objecting to

the agency's questionnaire as an evasion of privacy.

3 As to the duration of the harm suffered, we note that after the

complainant reported the incident, the agency placed complainant in

a different work area from the co-worker and that in his affidavit,

complainant stated that the reassignment helped reduce his stress.

In light of this evidence and the lack of any other evidence regarding

the duration, we find that complainant did not endure any long-term

emotional harm.