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.