0120082384
11-19-2009
Sheila J. Sullivan, Complainant, v. John M. McHugh, Secretary, Department of the Army, Agency.
Sheila J. Sullivan,
Complainant,
v.
John M. McHugh,
Secretary,
Department of the Army,
Agency.
Appeal No. 0120082384
Hearing No. 270-2004-00153X
Agency No. ARPOLK03APR0001
DECISION
On April 28, 2008, complainant filed an appeal from the agency's March 22,
2008 final decision concerning her equal employment opportunity (EEO)
complaint alleging employment discrimination in violation of Section
501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended,
29 U.S.C. � 791 et seq. The appeal is accepted pursuant to 29 C.F.R. �
1614.405(a).
BACKGROUND
This is the second appeal in this case. At the time of events giving rise
to this complaint, complainant was employed as Motor Vehicle Operator,
WG-08, at the Headquarters Joint Readiness Training Center, Director of
Logistics Supply and Services Division located in Fort Polk, Louisiana.
On July 9, 2003, complainant filed an EEO complaint alleging that she was
discriminated against on the bases of disability (depression and General
Anxiety Disorder) and in reprisal for prior protected EEO activity when:
(1) she was charged with absence without leave (AWOL) from August 2002
to February 2003, and her supervisor failed to recognize her medical
documentation from her doctor dated August 26, 2003; and (2) she was
intimidated, threatened, and harassed with removal from her job from
December 2002 to June 2003.
Following a hearing, an EEOC Administrative Judge (AJ) issued a decision
finding that the agency discriminated and retaliated against complainant
when she was placed on AWOL status from August 2002 to December 2002.
The AJ found, however, that complainant failed to establish she was
discriminated and retaliated against when she was carried in AWOL status
from December 2002 to February 2003, and she was allegedly harassed
with threats of removal. The AJ also determined, without holding a
separate hearing, that complainant was entitled to $2,000 in compensatory
damages. Specifically, the AJ noted that complainant's mental impairment
pre-existed the agency's discriminatory action; however, the AJ found
complainant's testimony that her mental impairment was exacerbated by
the agency's conduct was credible and reasonable. The AJ concluded
that given the severity and the duration of the psychological injuries
experienced by complainant in this case, complainant's pre-existing
condition, and the awards the Commission has made in similar cases,
complainant was entitled to non-pecuniary damages in the amount of $2,000.
The agency issued a decision, on July 28, 2005, adopting the AJ's finding
of discrimination and the $2,000 award of compensatory damages.
In Sheila J. Sullivan vs. Department of the Army, EEOC Appeal
No. 0120055812 (October 5, 2007), the Commission found that the AJ's
finding that complainant was not subjected to discrimination when she
was placed in an AWOL status from December 2002 to February 2003, was
supported by substantial evidence. We further affirmed the AJ's finding
that complainant was not discriminated against or harassed when she was
allegedly threatened with removal. However, the Commission found that the
AJ erred in issuing a decision on remedies without a separate hearing.
Therefore, we remanded the issue of compensatory damages (in excess of
$2,000) to the EEOC Hearing Unit of the New Orleans District Office.1
On December 4, 2007, the AJ issued a Scheduling Notice and Order to
the parties setting the matter for a pre-hearing conference on January
15, 2008, and a hearing on February 11, 2008, on the sole issue as to
the amount of compensatory damages to which complainant was entitled.
The Scheduling Notice and Order set forth requirements for requesting
continuances of the pre-hearing conference and hearing, and advised the
parties that failure to comply with the orders might result in sanctions,
up to and including dismissal of the captioned complaint. On January 15,
2008, a pre-hearing was conducted; the parties discussed the issues to
be heard, witnesses approved, hearing location, and the use of video
conferencing. By letter dated February 4, 2008, the agency advised
complainant of the hearing location and directions to the facility, as
well as the procedures necessary to check through the gate. However,
complainant failed to appear at the hearing on compensatory damages.
On February 11, 2008, the AJ issued a Sanction Notice and Order to Show
Cause to complainant as to why she failed to appear for the hearing.
On February 27, 2008, complainant responded to the AJ's notice claiming
to have been confused as to the date of the hearing. The AJ noted that
complainant was advised of the date in writing on three occasions and
reminded verbally during the telephonic pre-hearing conference. Further,
the AJ noted that complainant correctly cited the hearing date in her
Motion for Continuance mailed on February 9, 2008. Noting that the
agency had arranged for a video conference at some expense and effort,
the AJ issued sanctions cancelling the hearing and directing the agency
to issue a final agency decision (FAD) solely on the issue of whether
complainant was entitled to compensatory damages in excess of the $2,000
already awarded.
In its final decision dated March 22, 2008, regarding additional
compensatory damages, the agency concluded that the record contains no
additional evidence beyond that on which the AJ based his original $2,000
award. Accordingly, in the absence of any additional evidence the agency
concluded that there was no justification to support an increased award.
CONTENTIONS ON APPEAL
On appeal, complainant contends that the AJ erred in cancelling her right
to a hearing on compensatory damages. Complainant argues that due to
her medical condition she confused the hearing date. Complainant also
contends that because of her medical condition she is "in a confused
state, in a state of avoidance," she is "actually unable to responsibly
react, and my tendency is to withdraw from things." Complainant stated,
"I am thereby requesting the Office to recognize me as a handicapped
individual with a current serious health problem as the root of my failure
to attend or to properly address this hearing in a timely and effective
manner, and set aside the AJ's decision to dismiss this case. If at all
possible, I would like the Office to consider beginning from the point
of the October 5th decision and move forward from there procedurally."
The agency contends that complainant's assertion that she confused the
date due to her disability is not credible. Specifically, the agency
stated that complainant participated in the pre-hearing conference with no
problems or objections. The agency also contends that complainant filed a
pre-hearing conference report on January 6, 2008, that was well-drafted,
coherent, and logical. Further, the agency alleged, there is simply no
reason to believe that complainant's alleged impairment was sufficient
to prevent her from attending the hearing for which she received four
separate notices. Accordingly, the agency concluded that the $2,000
previously awarded is more than sufficient to compensate complainant
for any general damages she may have incurred. The agency requested
that we affirm its final decision.
ANALYSIS AND FINDINGS
As this is an appeal from a decision issued without a hearing, pursuant
to 29 C.F.R. � 1614.110(b), the agency's decision is subject to de novo
review by the Commission. 29 C.F.R. � 1614.405(a). See EEOC Management
Directive 110, Chapter 9, � VI.A. (November 9, 1999) (explaining that
the de novo standard of review "requires that the Commission examine
the record without regard to the factual and legal determinations of the
previous decision maker," and that EEOC "review the documents, statements,
and testimony of record, including any timely and relevant submissions
of the parties, and . . . issue its decision based on the Commission's
own assessment of the record and its interpretation of the law").
As an initial matter, we will address complainant's contentions regarding
the AJ's dismissal of her hearing request. In her statement on appeal,
complaint explains that she failed to appear at the hearing because of
her medical condition. However, we note that complainant was able to
participate at the pre-hearing and to submit a pre-hearing report one
month before the hearing. We also find that complainant was reminded
about the hearing on several occasions, both verbally and in writing.
Although she contends that she was unable to attend the hearing or inform
the AJ that she would be absent, she submitted a response to the AJ's
"Notice of Sanction and Order" on February 23, 2008, ten days after
the hearing. Therefore, we find that in light of complainant's failure
to appear for the hearing or inform the AJ that she would be absent,
the AJ acted appropriately in dismissing complainant's hearing request
pursuant to 29 C.F.R. � 1614.109(f)(3).
We now address whether or not complainant is entitled to more than the
$2,000 already awarded her in non-pecuniary, compensatory damages.2
Pursuant to section 102(a) of the Civil Rights Act of 1991, a complainant
who establishes unlawful intentional discrimination under either Title VII
of the Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. � 2000e
et seq. may receive 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) as part of this "make whole" relief. 42
U.S.C. � 1981a(b)(3). In order to receive an award of compensatory
damages, a complainant must demonstrate that he or 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), req. for reconsideration denied, EEOC Request No. 05940927
(Dec. 11, 1995); Enforcement Guidance: Compensatory and Punitive Damages
Available Under Section 102 of the Civil Rights Act of 1991, EEOC Notice
No. 915.002 (July 14, 1992), at 11-12, 14.
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. Other non-pecuniary losses could include injury to
professional standing and injury to character and reputation. Id. at 10.
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 Cygnar v. City of Chicago, 865 F. 2d 827, 848
(7th Cir. 1989)).
Based upon our review of the evidence in the record and based upon
Commission precedent, we find that the award of $2,000 to be sufficient
in light of the emotional adversity that complainant has experienced
due to the discrimination. In support of her claim for compensatory
damages, complainant testified at the hearing, on the merits of her
complaint, that her mental impairment was exacerbated by the agency's
discriminatory actions. Complainant testified that, at all relevant
times she was, and still is, suffering from Depression and General
Anxiety Disorder. Complainant stated that she was initially diagnosed
with General Anxiety Disorder and Depression in 1999, but in the fall of
2002, at the time of the incidents at issue here, her condition worsened.
We note that at the hearing on damages, complainant could have submitted
additional evidence regarding how she was harmed by the agency's actions
but she failed to attend the hearing. On appeal, complainant submitted
a letter dated April 7, 2008 from her psychologist stating, among other
things, "Psychologically she [complainant] is demonstrating a lack
of concentration symptomatic of serious depression. She needs to be
evaluated for anti-depressant medication so she can function better with
day to day tasks." However, we find that complainant failed to establish
that the agency's discriminatory action was the proximate cause of all
the harm she suffered. See Ortiz v. Social Security Administration,
EEOC Appeal No. 0120062670 (February 4, 2009).
Taking into account the extent, nature, severity, and duration of the harm
suffered, we find that, based upon the evidence presented to the AJ and
agency, $2,000 remains an appropriate award to compensate complainant
for her emotional suffering due to disability/retaliation-based
discrimination. The Commission notes that this award is not "monstrously
excessive" standing alone, is not the product of passion or prejudice,
and is consistent with the amount awarded in similar cases. See, e.g.,
Foy v. United States Postal Service, EEOC Appeal No. 01A51337 (March 18,
2005) ($2,000.00 award for non-pecuniary, compensatory damages where
the agency failed to provide complainant with a reasonable accommodation
for his disability, which complainant testified resulted in much stress
and frustration); Harris v. Department of Agriculture, EEOC Appeal
No. 01966746 (December 11, 1998) ($2,000.00 award for non-pecuniary,
compensatory damages where the agency failed to promote complainant,
which complainant testified resulted in low self-esteem, stress, and
depression for more than a year).
CONCLUSION
We affirm the agency's March 22, 2008 final decision, and order the
agency to take corrective action in accordance with this decision and
the ORDER of the Commission, herein.
ORDER
To the extent it has not already done so, the agency shall, within 30
days of the date this decision becomes final, pay complainant $2,000 in
non-pecuniary, compensatory damages.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K1208)
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 77960, Washington,
DC 20013. 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) (1994 & Supp. IV 1999).
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 (M1208)
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 77960,
Washington, DC 20013. 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 (R0408)
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 (Z1008)
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 from the Court that
the Court appoint an attorney to represent you and that the Court also
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 with
the Court 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
November 19, 2009
__________________
Date
1 The Commission also ordered the agency to: issue a check to complainant
in the amount of $2,000; to provide a minimum of eight hours of remedial
EEO training to the responsible management officials; consider taking
disciplinary action against the responsible management officials; to post
at its facility a copy of the discrimination notice; and attorney's fees
if applicable.
2 The issue of non-pecuniary, compensatory damages in excess of $2,000 is
the only issue in this appeal. This decision does nothing to alter the
agency's obligation to comply with the other relief ordered in Sullivan
vs. Department of the Army, EEOC Appeal No. 0120055812 (October 5, 2007)
to the extent that it has not already done so.
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0120082384
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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