Verna Colwell v. U.S. Postal Service
01985789
June 13, 2001
Verna Colwell,
Complainant,
v.
William J. Henderson,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01985789
Agency No. 4-G-700-1101-96
Hearing No. 270-97-9074X
DECISION
INTRODUCTION
Complainant filed an appeal with this Commission from a final agency
decision (FAD) concerning the agency’s award of compensatory damages.
For the reasons stated herein, the agency’s FAD is affirmed.
ISSUE PRESENTED
The issue on appeal is whether complainant has established that she
is entitled to compensatory damages in excess of the amount awarded
of $20,000.
BACKGROUND
Complainant was employed as a Part-time Regular City Clerk at a
Louisiana facility of the agency. During the period in question, she
was still within her probationary period. On February 2, 1996, one
of complainant’s supervisors (SUPV)<1> issued complainant her 30-day
and 60-day probationary period evaluation reports as well as a Notice
of Separation for failure to meet the expectations of her position,
effective immediately. Complainant, believing she was a victim of
discrimination, sought EEO counseling and, subsequently, filed a formal
complaint alleging that the agency discriminated against her based on sex
(female) and disability (injury to left knee).
An investigation was conducted and completed on complainant’s claim and
she, subsequently, requested a hearing before an EEOC Administrative Judge
(AJ). The AJ issued a decision finding that the agency did discriminate
against complainant on the bases of both sex and disability; awarding
back pay, seniority, and any other appropriate benefits; and directing
the agency to conduct a supplemental investigation into complainant’s
entitlement to compensatory damages. The agency issued a FAD implementing
the AJ’s finding of unlawful employment discrimination and awarding
complainant $20,000 in nonpecuniary compensatory damages. This appeal
filed by complainant followed, in which she stated that she is entitled
to such damages in the amount of $300,000.
REMEDY
When discrimination is found, the agency must provide the complainant
with a remedy that constitutes full, make-whole relief to restore the
complainant as nearly as possible to the position she would have occupied
absent the discrimination. See, e.g., Franks v. Bowman Transportation
Co., 424 U.S. 747, 764 (1976); Albemarle Paper Co. v. Moody, 422
U.S. 405, 418-19 (1975). Section 102(a) of the Civil Rights Act of
1991 (the CRA 1991), Stat. 1071, Pub. L. No. 102-166, 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 (Title VII), as amended,
42 U.S.C. § 2000e et seq. as well as Section 501 of the Rehabilitation
Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq.
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 nonpecuniary 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, is $300,000.
42 U.S.C. § 1981a(b)(3)(D).
Compensatory damages, however, are further limited to the amount
necessary to compensate an injured party for actual harm caused by
the agency’s discriminatory action, even if the harm is intangible.
Damiano v. U.S. Postal Service, EEOC Request No. 05980311 (February
26, 1999). Compensatory damages should consider the extent, nature,
and severity of the harm and the length of time the injured party endured
the harm. Id.; 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. Furthermore, compensatory damages should not be
motivated by passion or prejudice or “monstrously excessive” standing
alone but should be consistent with the amounts awarded in similar cases.
Damiano, EEOC Request No. 05980311 (citing see Cygnar v. City of Chicago,
865 F.2d 827, 848 (7th Cir. 1989) and EEOC v. AIC Security Investigations,
823 F.Supp. 573, 574 (N.D. Ill. 1993).
Following our review of the record, the Commission agrees with the
agency that $20,000 is an appropriate amount to award complainant for
nonpecuniary compensatory damages. Complainant presented objective
evidence<2> to establish that the agency’s actions were a contributing
factor to (1) her depression and emotional distress, which manifested
themselves in crying spells, insomnia, headaches, anxiety attacks,
constant mood swings, and low self esteem, and for which complainant
received psychological treatment; (2) her loss of credit standing
because she could not pay bills in a timely manner; and (3) her loss of
professional standing because it was difficult for complainant to obtain
employment when she was removed from the agency for poor attendance
and performance. See, e.g., Hatchett v. U.S. Postal Service, EEOC
Request No. 05990121 (November 3, 2000), aff’g EEOC Appeal No. 01964256
(October 1, 1998)($20,000 in nonpecuniary compensatory damages where
complainant was harassed and issued a letter of removal, which was
later reduced to a two and one half day suspension, all of which
worsened complainant’s preexisting mental and emotional condition);
Batieste v. Department of Air Force, EEOC Appeal No. 01974616 (May 26,
2000)($12,000 in nonpecuniary compensatory damages where complainant was
subjected to discriminatory work terms and conditions and subsequently
removed from employment, both of which negatively effected complainant’s
standard of living and self-esteem; caused her depression, anxiety,
irritability, nausea and insomnia; and caused her to file for bankruptcy);
and Olsen v. Department of Defense, EEOC Appeal No. 01956675 (July 29,
1998)($16,000 in nonpecuniary compensatory damages where complainant
received poor performance appraisals and was non-selected for a promotion,
which resulted in complainant’s depression, anxiety, low self-esteem,
sleep deprivation, worrying, marital and family problems, and high
blood pressure). Complainant, however, failed to show that she suffered
long term psychological harm or that her psychological harm was caused
solely by the discrimination she suffered by the agency.<3> In addition,
complainant failed to show that a poor work record from the agency was
the primary factor for her inability to obtain employment. It appears
that many of the employers with whom complainant sought employment were
not hiring at the time she applied.
CONCLUSION
After a careful review of the record, including complainant’s contentions
on appeal, the agency’s response, and arguments and evidence not
specifically addressed in this decision, we AFFIRM the agency’s award of
$20,000 in nonpecuniary compensatory damages. The agency is instructed
to comply with the order as set forth below.
ORDER
The agency is ORDERED to take the following remedial action.
(1) If it has not already done so, the agency shall pay complainant
nonpecuniary compensatory damages in the amount of $20,000 within sixty
(60) calendar days of the date this decision becomes final.
(2) The agency is further directed to submit a report of compliance, as
provided in the paragraph entitled “Implementation of the Commission’s
Decision.” The report shall include supporting documentation of the
agency’s payment of nonpecuniary compensatory damages to complainant.
IMPLEMENTATION OF THE COMMISSION’S DECISION (K0900)
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 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 29 C.F.R. § 1614.409.
STATEMENT OF RIGHTS – ON APPEAL
RECONSIDERATION (M0900)
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 (S0900)
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:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
June 13, 2001
__________________
Date
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days after it was mailed. I certify
that this decision was mailed to complainant, complainant’s representative
(if applicable), and the agency on:
__________________
Date
______________________________
Equal Opportunity Assistant
1SUPV was not complainant’s first line supervisor but he was the Acting
Manager of Distribution Operations.
2Complainant presented her own statement, notes from her psychologist,
letters from businesses from which she sought employment, a letter from
a friend stating her observations of changes in complainant since her
termination, and some medical records.
3The Clinical Psychologist, in her progress notes, indicated that
complainant was still dealing with other consequences from the
discrimination she suffered by the agency but that complainant’s
depression appeared to be situational and to resolve itself as the
conflict at work was resolved and that, in July 1997, complainant no
longer felt depressed but just under pressure from her pending EEO
hearing. The Commission has held that a complainant may not recover
compensatory damages for stress associated with prosecuting an EEO
complaint. Rountree v. U.S. Department of Agriculture, EEOC Request
No. 05950919 (February 15, 1996), aff’g Rountree v. U.S. Department of
Agriculture, EEOC Appeal No. 01941906 (July 7, 1995).
