Teresa Q. McClellan, Complainant,v.Donald H. Rumsfeld, Secretary, Department of Defense, (Defense Logistics Agency), Agency.

Equal Employment Opportunity CommissionAug 22, 2002
01A12900 (E.E.O.C. Aug. 22, 2002)

01A12900

08-22-2002

Teresa Q. McClellan, Complainant, v. Donald H. Rumsfeld, Secretary, Department of Defense, (Defense Logistics Agency), Agency.


Teresa Q. McClellan v. Defense Logistics Agency

01A12900

August 22, 2002

.

Teresa Q. McClellan,

Complainant,

v.

Donald H. Rumsfeld,

Secretary,

Department of Defense,

(Defense Logistics Agency),

Agency.

Appeal No. 01A12900

Agency Nos. DT-96-001 & DT-96-026

DECISION

BACKGROUND

Complainant timely initiated an appeal from the agency's final decision

(FAD2) dated February 22, 2001, concerning her claim for compensatory

damages, which stems from her original complaint of unlawful employment

discrimination in violation of Title VII of the Civil Rights Act of

1964 (Title VII), as amended, 42 U.S.C. � 2000e et seq. This appeal is

accepted pursuant to 29 C.F.R. � 1614.405. In the underlying complaint,

complainant alleged she was discriminated against on the basis of

her sex (female) and reprisal for prior EEO activity. The agency

issued its original FAD (FAD1) on January 30, 1998, on the underlying

complaint, finding no discrimination as to issues one through four.

FAD1 additionally found reprisal discrimination as to issues five and

six.<1> Further, FAD1 found that management discriminated against

complainant on the basis of race (Hispanic) on the sole issue in

complaint number DT-96-026.<2> The agency ordered corrective action,

including compensatory damages. Complainant appealed that decision,

and in McClellan v. Defense Logistics Agency, EEOC Appeal No. 01983023

(March 2, 1999), the Commission affirmed FAD1 as to the issues in both

complaints, but ordered the agency to issue a new FAD limited to the

issue of complainant's entitlement to compensatory damages, and required

the processing of a claim for attorney's fees should complainant submit a

fee petition. Complainant submitted a request for compensatory damages,

dated June 26, 2000.

In FAD2, the agency awarded complainant $3,000.00 in non-pecuniary

damages. Complainant requested �$25,000.00, plus fair market interest,

for each incident of discrimination and or retaliation.� See

Complainant's Brief in Support of Appeal, dated April 20, 2001.

ANALYSIS AND FINDINGS

In West v. Gibson, 119 S.Ct. 1906 (1999), the Supreme Court held that

Congress afforded the Commission the authority to award compensatory

damages in the administrative process. Section 102(a) of the Civil

Rights Act of 1991 (the CRA 1991), codified as 42 U.S.C. � 1981a,

authorizes an award of compensatory damages as part of the "make whole"

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.

Section 1981a(b)(3) limits the total amount of compensatory damages

that may be awarded to each complaining party for future pecuniary

losses, emotional pain, suffering, inconvenience, mental anguish, loss

of enjoyment of life, and other non-pecuniary losses, according to the

number of persons employed by the respondent employer. The limit for

an employer with more than 500 employees, such as the agency herein,

is $300,000.00. 42 U.S.C. � 1981a(b)(3)(D).

If a complainant alleges that she is entitled to compensatory damages

and the agency or Commission enters a finding of discrimination, the

complainant is given an opportunity to submit evidence establishing

her claim. To receive an award of compensatory damages, a complainant

must demonstrate that 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

recons. den. EEOC Request No. 05940927 (December 11, 1995); 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.

Compensatory damages may be awarded for the past pecuniary losses,

future pecuniary losses, and non-pecuniary losses which are directly or

proximately caused by the agency's discriminatory conduct. Compensatory

and Punitive Damages Available Under Section 102 of the Civil Rights Act

of 1991, EEOC Notice No. 915.002 (July 14, 1992), at 8. Pecuniary losses

are out-of-pocket expenses that are incurred as a result of the employer'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 the pecuniary losses that are incurred prior to the resolution of

a complaint via a finding of discrimination, an offer of full relief,

or a voluntary settlement. Id. at 8-9.

A compensatory damages award should fully compensate a complainant for

the harm caused by the agency's discriminatory action even if the harm

is intangible. Id. at 13. Thus, a compensatory damages award should

reimburse a complainant for proven pecuniary losses, future pecuniary

losses, and non-pecuniary losses. A complainant has a duty to mitigate

his or her pecuniary damages. Id. at 9. If a respondent can prove that

a complainant failed to mitigate pecuniary damages, the award should

be reduced to reflect all losses that could have been avoided by the

exercise of reasonable diligence. Id. at 9-10.

Initially, we note that the agency has already awarded complainant

$3,000.00 in non-pecuniary damages. By doing so, the agency has

conceded that complainant established a nexus between the harm she

sustained and the discriminatory actions of the agency. See Leatherman

v. Department of the Navy, EEOC Appeal No. 01A12222 (December 14, 2001).

As we stated above, to receive an award of compensatory damages, a

complainant must demonstrate that she has been harmed as a result of

the agency's discriminatory action. Rivera v. Department of the Navy,

EEOC Appeal No. 01934157 (July 22, 1994) req. for recons. den. EEOC

Request No. 05940927 (December 11, 1995); 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. Further, and

also previously noted, compensatory damages may be awarded for the past

pecuniary losses, future pecuniary losses, and non-pecuniary losses which

are directly or proximately caused by the agency's discriminatory conduct.

Compensatory and Punitive Damages Available Under Section 102 of the

Civil Rights Act of 1991, EEOC Notice No. 915.002 (July 14, 1992),

at 8. Thus, once the issue of a nexus between the discriminatory

act and the harm sustained has been established, or conceded, as is

the case herein, the agency is responsible for all the harm suffered.

The harm suffered by the complainant herein must be justly compensated,

with consideration given to how much previous complainants have been

awarded by the Commission, where the severity and duration of the harm

suffered is similar to the facts of the instant action.

Complainant, through her attorney, argues that the agency's award of

non-pecuniary damages inadequately compensates her for the harm that

she suffered. Specifically, complainant argues that her �conditions

worsened with each new action taken by the agency.� See Complainant's

Brief in Support of Appeal, dated April 20, 2001. The agency, argues

that to the contrary, the record is void of evidence that complainant's

symptoms were exacerbated after the discrimination. See Agency Opposition

to Appeal, dated May 24, 2001.

Complainant submitted evidence, through her own statements, that the

agency's discriminatory actions exacerbated her pre-existing mental

condition and physical problems. Complainant's husband, co-workers

and acquaintances corroborated her statements about recent changes in

her physical health, mental health and overall demeanor. Complainant's

husband stated that beginning in May 1995, complainant became despondent,

frustrated, angry, tired, less eager to do things in the evenings,

had headaches, irregularity, diarrhea, sleep problems and a lack of

enthusiasm. See Record of Investigation (ROI), at 55. Complainant's

co-worker added that she noticed, since May 1995, complainant vomiting,

making errors at work and acting paranoid. Id. at 54. Another co-worker

asserted his belief that the �situation at work is the cause of

[complainant's] illness.� ROI, at 59. Complainant's friend commented

that lately complainant's attendance at their spa has decreased and

complainant's demeanor has changed in that she is less happy-go-lucky

and outgoing. Id., at 56-7.

We find that the testimony of complainant, and her witnesses, fails to

clearly indicate that any new symptoms arose following the agency's

discriminatory actions, or that any pre-existing conditions were

exacerbated. This fact weakens, but does not break, the causal connection

between complainant's emotional distress and physical problems, and the

discriminatory actions. In addition, we note that complainant presented

very little medical evidence that her physical and mental problems were

attributable to the agency actions at issue. Although such evidence

is not essential to the recovery of compensatory damages, its absence

may affect the amount of the award. Lawrence v. U.S. Postal Service,

EEOC Appeal No. 01952288 (April 18, 1996).

Based on the record, and taking into account the extent, nature, severity

and duration of the harm suffered, the Commission concludes that the

agency's $3,000.00 award is sufficient to remedy the harm that complainant

alleged. Similar cases with somewhat similar evidence support this award.

See, e.g., Jojola-Jemison v. U.S. Postal Service, EEOC Appeal No. 01970027

(October 8, 1998) ($500.00 award for non-pecuniary damages where the

agency subjected complainant to harassment, which resulted in marital

strain, injury to personal and professional reputation, depression,

sleeplessness, anxiety, loss of self- esteem, and damage to general

health); Hart v. U.S. Postal Service, EEOC Petition No. 04990023 (March

31, 2000) ($1,000.00 award for non-pecuniary damages where the agency

issued complainant a 14-day suspension, which resulted in mental anguish,

loss of enjoyment of life, injury to character, stress, depression,

and humiliation); Cole v. United States Postal Service, EEOC Appeal

No. 01A03115 (July 24, 2002) ($1,250.00 award where the agency issued

complainant a Notice of Removal which was later reduced to a ten-day

suspension for failure to follow safety regulations and instructions).

In so finding, we note that complainant cannot, based on the fact that

she was subjected to three discriminatory incidents, recover three times

for the same physical and mental problems that she experienced.

CONCLUSION

After due deliberation and consistent with the findings above, we conclude

that the $3,000.00 award is adequate to compensate complainant for the

harm that she suffered, and the agency's final decision of February 22,

2001, is hereby AFFIRMED.

ORDER

The agency is ordered, to the extent that it has not already done so,

to pay complainant a total of $3,000.00 for compensatory damages, within

twenty (20) calendar days of the date this decision becomes final.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M0701)

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 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 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 (T0900)

This decision affirms the agency's final decision/action in part, but it

also requires the agency to continue its administrative processing of a

portion of your complaint. 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 on both that portion

of your complaint which the Commission has affirmed and that portion

of the complaint which has been remanded for continued administrative

processing. 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 your appeal with the Commission, until

such time as the agency issues its final decision on your complaint.

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

August 22, 2002

__________________

Date

1 Issue five: On September 5, 1995, because of sex and reprisal

discrimination, complainant was issued a Memorandum for the Record

from her Division Chief, Subject: Disruption and Morale of Workplace.

Issue six: On September 6, 1995, because of reprisal, complainant was

told by the former first-line supervisor to work in another area in

Building 11-C.

2 Issue: On October 24, 1995, because of reprisal, complainant was issued

a Notice of Decision-Reprimand.