Someone at the federal agency approved kennel fees but not much more. 

The hostile work environment was so bad, it required relocation across state lines from Michigan to Wisconsin. Leaving behind established and trusted doctor patient relationships, but also leaving behind family, friends and even a fiancee.

Because of complainants age discrimination, as well as several other proven discrimination’s against him, the judge ordered the agency help with a job search and relocation. While Kennel fees were covered, other fees involving taking care of the dog were not.

The biggest lesson we can learn from this EEOC discrimination claim is to make sure you have substantial evidence and documentation to prove all your expenses. Without it your claim is worthless.

Even documentation is not enough, when submitted without causal relationships to the claim.

We also learn from this claim how a federal agency scrutinizes and denies as much of the damages as possible leaving the complainant with a small percentage of what he asked for. It ends up costing the complainant much more than they could ever make from the discrimination.

So even when it was proven he was discriminated against, and he won his claim, he actually lost because all the money he put out from his own pocket as well as all the damages to his health the discrimination caused.

This could have gone much differently, but he was not knowledgeable about what he needed to do to recieve the compensatory damages he deserved.

One big issue was that complainant did not save his receipts and had no proof for many charges he made as compensatory damages. Also interesting in this case was the fact that many of the complaints occured prior the the civil rights act of 1991.

Albert Sprague v. Department of Agriculture

01985144

April 27, 2000

Albert Sprague,             )

Complainant,               )

)

v.                        ) Appeal No.  01985144

) Agency Nos. 910791

Dan Glickman,               )             930422

Secretary,                  )

Department of Agriculture,  )

Agency.                    )

)

DECISION

Complainant filed an appeal with this Commission from a final decision of the agency regarding compensatory damages in connection with his complaint in violation of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. §2000e et seq.<1>  The final agency decision was issued on May 1, 1998.  The appeal was postmarked June 15, 1998. Accordingly, the appeal is timely (see 64 Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter cited as 29 C.F.R. §1614.402(a)), and is accepted in accordance with EEOC Order No. 960, as amended.<2>

ISSUE PRESENTED

The issue on appeal is whether the agency’s final decision properly determined that complainant was entitled to an award of compensatory damages in the amount of $10,495.85.

BACKGROUND

On April 22, 1993, complainant filed a formal EEO complaint wherein he claimed that he was discriminated against on the bases of his race (white), color, sex (male), age (48), and in reprisal for his previous EEO activity with regard to the agency’s lack of cooperation in his job search, his reassignment in December 1992, his rating of “Fully Successful” for his performance appraisal received in October 1992, some disciplinary actions were taken against him, and some of his duties were removed in November 1992.  The complaint was accepted and an investigation was conducted.  Complainant subsequently requested a hearing before an EEOC Administrative Judge (AJ). The AJ issued a recommended decision wherein she found that complainant was discriminated against on the bases of his age and reprisal with regard to the agency’s lack of cooperation in his job search, his reassignment in December 1992, his performance appraisal received in October 1992, and a series of performance counseling sessions.

Based on these incidents, the AJ found that complainant was subjected to a hostile work environment due to his age.  The AJ also found insufficient evidence of sex discrimination.  Additionally, the AJ found that complainant was not discriminated against on the bases of his age or reprisal when some of his duties were removed in November 1992.  The AJ noted that as a result of the discrimination and hostile work environment, complainant experienced work-related stress which resulted in depression, a loss of interest in activities previously enjoyed, back problems, and sleeping difficulties.  The AJ further noted that in late 1989 or 1990, complainant began seeing a physician for work-related stress, and that he underwent mental counseling and was treated for depression.

As remedial relief, the AJ recommended that complainant be offered a position commensurate with his duties and responsibilities on the Ottawa National Forest; that complainant’s 1992 performance appraisal reflect one element which exceeds “Fully Satisfactory”; that complainant be awarded attorney’s fees; that the agency provide sensitivity training for all managers in connection with its obligation to maintain a working environment free from reprisal and hostile and offensive working conditions on the basis of age.  The AJ also recommended that complainant be awarded compensatory damages in an amount to be determined by the parties.

On November 21, 1995, the agency adopted the AJ’s findings that complainant was subjected to age discrimination and reprisal with regard to the agency’s lack of cooperation in complainant’s job search, his reassignment in December 1992, complainant’s performance appraisal of October 1992, and a series of performance counseling sessions with complainant.

Agency agrees with complaints 

The agency also determined that complainant was subjected to discrimination on the bases of race, color, and sex with regard to the aforementioned actions and also when complainant’s job duties were reduced.  The agency noted that complainant had been unjustly criticized by management officials, it failed to put forth an honest effort to help him find a job,  and complainant accepted his reassignment amidst an environment where the agency was making concerted efforts to reduce its number of older white males.  With regard to complainant’s performance appraisal, the agency determined that his overall rating should have been “Superior” rather than “Fully Successful”.  The agency further determined that the performance counseling sessions and curtailment of complainant’s job duties occurred in a work environment that exhibited hostility to older white males.

Did Complainant file late?

Finally, the agency dismissed the claim of a hostile work environment, noting that this issue did not appear in the EEO Counselor’s report.  Although this claim was dismissed on the grounds of untimeliness and failure to state a claim, the agency noted that evidence or incidents involved in the claim were considered relevant to the accepted issues.

As relief, the agency determined that complainant would be restored to the position he held at the Ottawa National Forest prior to the reassignment and the incidents at issue, or to a position substantially similar to the position in Ottawa that is satisfactory to him.  The agency also provided that complainant’s 1992 performance appraisal would be revised to reflect a rating of “Superior”, and that any references to the “Fully Successful” rating would be expunged from all files.

What are “reasonable” attorney fee’s to a federal agency?

Further, the agency stated that it would pay reasonable attorney’s fees and that it would pay proven compensatory damages.  The agency informed complainant that a claim for compensatory damages should include specific evidence of damages caused by the challenged actions.

Complainant requests huge compensatory damages bill to agency

By letter dated March 27, 1996, complainant submitted to the agency a claim for compensatory damages in the amount of $227, 501.00.  This amount included

$150,000.00 as compensation for stress;

$38, 209.00 in back pay;

$9, 464.00 for the future cost of medical expenses;

$19, 385.00 for unreimbursed moving expenses;

$4,456.00 for medical expenses;

$5,997.00 for expenses related to the pursuit of the complaint.

Complainant also requested the restoration of 126.5 hours of sick leave.

Specific Evidence was provided to agency

In support of his claim for compensation for stress, complainant submitted a statement wherein he declared that he began to feel stress and emotional trauma in October 1989, after he filed his initial complaint. Complainant stated that his stress peaked during the end of June 1990, when it was indicated that he needed to move.   According to complainant, within a month of the July 1991 settlement of the prior EEO complaint, management officials started to criticize his attitude and behavior. Complainant stated that they also began to pressure him to move saying that he lacked good team building and supervisory skills. According to complainant, he was notified that selecting officials would be informed of his deficiencies.  Complainant stated that this treatment of him continued until the autumn of 1992, when he was offered and he accepted his current position at the Nicolet National Forest.

Complainant indicated that he was no longer subjected to discriminatory harassment after he moved to the Nicolet Forest.  However, complainant stated that he was experiencing significant stress due to delays in the processing of the instant complaint, the difficulties he encountered in selling his home in Ironwood, Michigan and finding a new house in the Laona, Wisconsin area, and the loss of close friendships he had formed in Ironwood.  According to complainant, he has lost training opportunities and not being selected for other positions has eliminated opportunities that he would have had for a promotion.  Complainant claims that his current salary and future retirement benefits would have been higher. Additionally, complainant maintains that he has suffered because he was placed in a position of lesser stature.

Medical Documentation was submitted as specific evidence to discrimination complaint

In addition to his own statement, complainant submitted a letter dated June 8, 1995, from his psychiatrist.  According to the psychiatrist, complainant has major depression and it will be ongoing as long as the employment issues continue.  The psychiatrist further stated that it would be difficult to imagine complainant requiring his assistance if the employment issues had been resolved by now.

Family members statements are weighted as highly as expert witness

In a letter dated March 3, 1996, complainant’s daughter described him as visibly upset and shaken when he moved out of his home on June 14, 1993.  She stated that he lost control and cried.  She further indicated that in the ensuing period before he moved into his new home, their previously close relationship was damaged as complainant became depressed and very lonely.

Close friends statements are also weighed as highly as expert witness

Complainant also provided a letter dated March 12, 1996, from his former fiancee.  She described complainant as being in a despondent state of mind when she met him in October 1994.  She stated that this condition is directly related to the harassment he was subjected to at the Ottawa National Forest and the ordeal of the complaint procedures.  She stated that she broke off their engagement because of his inability to have an optimistic view of life.  She noted that medication has alleviated some of complainant’s depression, but the prolonged, unresolved state of his complaint has heightened his distraught feelings in recent months.

Here’s what agency valued his claim and exactly how they came to their conclusion

In its final decision with regard to the compensatory damages claim, the agency awarded complainant $10,495.85 in compensatory damages, plus interest from June 27, 1996, through the date of its decision, May 13, 1998.  With regard to complainant’s request for $150,000.00 in non-pecuniary damages, the agency instead awarded $9,000.00.  The agency evaluated the claim in terms of the discrimination that allegedly occurred during the period of November 21, 1991 – December 31, 1992.

He was discriminated against prior to the civil rights  of 1991

The agency noted that complainant indicated that part of the alleged discrimination occurred prior to November 21, 1991, the date that the Civil Rights Act of 1991 was passed.  Therefore, the agency disallowed the compensatory damages claim for 1989, 1990, and most of 1991.

With respect to the period after December 1992, the agency referenced complainant’s statement that the discriminatory conditions that he experienced did not exist after he was reassigned from the Ottawa National Forest to the Nicolet National Forest in December 1992.  The agency noted that subsequent to the reassignment, complainant claimed that  he again experienced stress because of the delays in processing his complaint, the investigation of his complaint, and the hearing process.  The agency reasoned that the emotional distress that complainant experienced after December 1992, was not related to the discriminatory actions, but rather was a result of his participation in the EEO process.

In determining its award of $9,000.00 for complainant’s non-pecuniary losses, the agency utilized a measure of approximately $25.00 per day for the approximately one year duration of complainant’s harm.  The agency stated that complainant’s emotional distress was of limited duration and apparently required no medical treatment prior to 1994.

His request for compensatory damages must not be a request for equitable relief 

As for complainant’s request for $38,209.00 in back pay, the agency denied the claim in its entirety on the grounds that back pay is a claim for equitable relief rather than compensatory damages.  The agency noted that 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.

Someone at Agency likes dogs but not enough to cover travel expenses.

With respect to complainant’s request for $19,385.00 in moving expenses, the agency awarded only $310.00 for the cost of kennel fees that complainant incurred while he was relocating.

The agency denied the claim of $295.00 in mileage costs related to complainant’s daily trips to care for his dog at his friend’s house. According to the agency, complainant did not provide documentation for this expense, including a specific point of origin and point of destination.  The agency also denied complainant’s claim for $1,620.00 for personal time associated with travel for the care of his dog.

Temporary living expenses denied without evidence or proof. Always save documentation and receipts.

With regard to complainant’s request for $225.00 for temporary living quarters at a hotel, the agency stated that complainant provided no documentation to support his claim.  The agency also denied complainant’s request for $1,140.00 in reimbursement for apartment costs.  The agency noted that complainant provided no proof for $760.00 of these costs and a $380.00 receipt for a security deposit expense.  Further, the agency denied complainant’s claim for $104.00 in utility fees for this apartment because evidence was not provided to support the claim.

As for the claim for $5,694.00 in meals and miscellaneous expenses, the agency denied this claim noting that complainant had meal and eating requirements irrespective of the discrimination.  The agency further stated that complainant did not provide evidence that this expense was incurred.

The agency also denied complainant’s request for $1,560.00 for the cost of weekly trips from his new residence to his former residence. According to the agency, complainant did not submit documentation or verification of the costs or specifics regarding his point of origin and point of destination.

In connection with this travel, the agency denied complainant’s request for $3,125.00 as reimbursement for his travel time.  The agency also rejected complainant’s request for $3,062.00 for house payments, city utilities, and heat and electricity expenses for maintaining his residence in Ironwood from January 1993 through June 1993.

According to the agency, complainant failed to provide copies of bills or other documentation to establish that he incurred the claimed expenses.

The agency also denied complainant’s claim for $2,000.00 for his personal time devoted to searching for a new residence.  Additionally, the agency denied complainant’s request for $260.00 for mileage expenses pertaining to his search for a new home.  The agency noted that complainant failed to submit objective evidence establishing travel at 100 miles a month for ten months for this purpose.

As for the medical expenses that complainant incurred, the agency denied complainant’s request for $867.00 for services rendered from January 14, 1990 through October 19, 1990, on the grounds that these expenses  preceded the passage of the Civil Rights Act of 1991.

Complainant claimed with regard to his March 9, 1994 session at the Northwood Guidance Center, $74.00 for treatment, $6.24 for mileage costs, and $30.00 for his personal time expended for the visit.  The agency rejected this claim in its entirety, noting that complainant did not establish a causal relationship between the bill for treatment and the alleged discriminatory acts.

What the agency awarded for medical expenses

Complainant also requested $2,009.85 for services provided by St. Mary’s Hospital from June 17, 1994 through February 27, 1996.  This amount reflected $796.25 for treatment; $353.60 for related mileage; and $860.00 for complainant’s personal time.  The agency awarded complainant the requested amounts for treatment and mileage.

The agency noted that complainant’s physician specifically cited the relationship between complainant’s depression and the agency’s failure to resolve ongoing employment issues.  The request for $860.00 for personal time was rejected on the grounds that there is no basis for such an award.

With regard to complainant’s request for $359.85 for treatment and costs associated with his sessions with Northern Wisconsin Psychological Associates, the agency denied this claim in its entirety.  The agency  determined that complainant failed to demonstrate that the treatment resulted from the alleged discriminatory acts that occurred prior to complainant’s relocation in December 1992.  Complainant also requested $1,145.00 for medication prescribed in 1994, 1995, and 1996.  The agency acknowledged that complainant submitted documentation establishing that the expenses were incurred, but it determined that complainant failed to establish a causal relationship between the alleged discriminatory acts and the prescription expenses.  The agency concluded that complainant’s stress was a result of other matters, including his pursuit of the instant complaint.  As for complainant’s request for restoration of sick leave, the agency determined that sick leave is an employment benefit independent of any claim for compensatory damages, and thus it was not awarded.

With regard to complainant’s claim for $9,464.00 for future pecuniary damages, the agency noted that this amount for future medical expenses was calculated at $2,247.00 per year at 6% interest for five years. The agency stated that complainant did not provide an explanation of how he arrived at the $2,247.00 amount.  The agency further disputed the need for future medical treatment.  According to the agency, the letter from complainant’s physician did not establish the need for future treatment, but rather stated that complainant’s depression is ongoing as long as the employment issues continue.  The agency reasoned that the employment issues would conclude with the issuance of its decision, and moreover, that complainant’s current state of emotional distress relates to the processing of the instant complaint.

Agency rejects attorney fees

Finally, the agency rejected complainant’s claim for $5,997.00 for legal expenses, associated travel costs, and time devoted to his case. The agency reasoned that attorney’s fees do not fall within the purview of compensatory damages and therefore, the request for $254.00 in attorney’s fees and $143.00 in associated mileage costs was denied.

As for the remaining $5,600.00 of complainant’s claim, the agency determined that the time complainant spent working on his case is not compensable.

In its final decision, the agency noted that on April 13, 1995, complainant claimed that the agency failed to comply with the July 19, 1991 settlement of his initial complaints.  The settlement agreement provided that the agency would pay complainant $7,150.00 to cover his back pay, miscellaneous expenses, and attorney’s fees.  The agreement also provided that the agency would continue to work with complainant to assist and support other job opportunities and/or transfers.  According to complainant, agency management did not assist him and support him in finding other job opportunities.  The agency noted that the AJ found that complainant was discriminated against on the bases of his age and reprisal when management stymied his efforts to find a position in another region.  The agency determined that this claim was rendered moot by the AJ’s recommended decision and its adoption of that decision.

Attorney Fees paid for second lawyer

On appeal, complainant contends that all of his attorney’s fees have been paid pursuant to the finding of discrimination except for the $254.00 in fees incurred by his previous attorney.

Complainant had proof of expenses

Complainant claims that the $143.00 in mileage costs he sustained in traveling to that attorney’s office and a hearing should be reimbursed as a past pecuniary out-of-pocket expense.  With regard to his claim for $295.00 in mileage expenses for daily care of his dog, complainant maintains that he included evidence of points of origin and destination.  Complainant states that he traveled seven miles per day on an average of six days per week over a total of 27 weeks.  As for his hotel and apartment expenses, complainant argues that these expenses were submitted in the form of check registers with specific entries.  With respect to his request for $3,062.00 for house payments, utilities, heat and electrical expenses for maintaining his Ironwood residence from January 1993 – June 1993, complainant states that the agency was provided with a check register outlining the payment of expenses.  In terms of his request for $1,560.00 in mileage costs for traveling between Laona and Ironwood, complainant states that he traveled this distance of 240 miles for 25 weeks at $.26 per mile.  Complainant notes that it is undisputed based on the AJ’s findings that he was employed and had to travel between Laona and Ironwood.  Complainant also claims that he should receive $260.00 for the mileage costs that he incurred while searching for a new residence from November 1992 until September 1993.  Complainant states that this expense would not have been incurred but for the discriminatory treatment.

Medical Documentation was submitted

According to complainant, the claimed cost was calculated at 100 miles per month for ten months at $.26 per mile.  With regard to his medical bills and expenses, complainant contends that his psychiatrist’s records clearly established a causal connection between the discrimination and his medical bills and expenses.  Complainant maintains that he provided itemized damages and related billing statements to establish these out-of-pocket expenses.  As for his request for a back pay award of $38,209.00, complainant claims that Title VII requires an award of compensatory damages which includes back pay.

With respect to his request for $9,464.00 for future medical expenses, complainant argues that since the final decision was not issued until May 1, 1998, he should receive compensatory damages to cover a period of almost three years. Complainant notes that his psychiatrist had stated that his depression was ongoing as long as the employment issues continue.  As for his claim for $150,000.00 in non-pecuniary damages, complainant maintains that he has suffered ongoing emotional distress that includes severe depression, severe personality change, loss of personal relationships, and the need for medication to treat his condition.  Complaints disputes the agency’s decision to limit its payment of compensatory damages to a one year period.  According to complainant, the effects of the discrimination are continual, six and one-half years later.

ANALYSIS AND FINDINGS

Initially, we will address the agency’s disposition of complainant’s allegation of noncompliance with a prior settlement agreement.  Volume 64 Fed Reg. 37,644, 37,660 (1999) (to be codified and hereinafter cited as 29 C.F.R. §1614.504(a)) provides that any settlement agreement knowingly and voluntarily agreed to by the parties, reached at any stage of the complaint process, shall be binding on both parties. If the complainant believes that the agency has failed to comply with the terms of a settlement agreement or final action, the complainant shall notify the EEO Director, in writing, of the alleged noncompliance within 30 days of when the complainant knew or should have known of the alleged noncompliance.  The complainant may request that the terms of the  agreement be specifically implemented, or, alternatively, that the complaint be reinstated for further processing from the point processing ceased. Fed Reg. 37,644, 37,660 (1999) (to be codified and hereinafter cited as 29 C.F.R. §1614.504(b)) provides that the agency shall resolve the matter and respond to the complainant, in writing.  If the agency has not responded to the complainant, in writing, or if the complainant is not satisfied with the agency’s attempt to resolve the matter, the complainant may appeal to the Commission for a determination as to whether the agency has complied with the terms of the settlement agreement or action. The complainant may file such an appeal 35 days after he or she has served the agency with the allegations of noncompliance, but must file an appeal within 30 days of his or her receipt of an agency’s determination. Complainant did not raise until April 13, 1995, his claim that the agency breached the settlement of his previous complaint by not assisting him and supporting him in finding other job opportunities.  The period in which complainant did not receive this assistance and support was from approximately August 1991 until November 1992.  Clearly, given that complainant filed a formal complaint on this issue on April 22, 1993, complainant did not raise a claim of noncompliance within thirty days of when he knew of the noncompliance.  Therefore, we find that complainant was not timely in raising his claim that the settlement agreement was breached. Section 102 (a) of the Civil Rights Act of 1991, 105 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, as amended.  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, is $300,000.  42 U.S.C. §1981a(b) (3) (D).  Because to compensatory damages provision of the Act is not retroactive, they are not available for acts of discrimination occurring prior to the Act, i.e., November 21, 1991.  Landgraf v. USI Film Products, 511 U.S. 244 (1994).  Compensatory damages also are not available for claims arising under the Age Discrimination in Employment Act (ADEA) of 1967. 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. N-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, 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. Future pecuniary losses are losses that are likely to occur after resolution of a complaint.  Id. At 9.  Non-pecuniary losses are emotional pain, suffering, inconvenience, mental anguish, loss of enjoyment of life, injury to professional standing, injury to character and reputation, injury to credit standing, and loss of health.  Id. 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.  There are no precise formulae for determining the amount of damages payable for non-pecuniary losses.  Damage awards for non-pecuniary losses that have been assessed by juries and courts have varied substantially from one another.  Id. At 13.  However, an award of compensatory damages for non-pecuniary losses, including emotional harm, should reflect the extent to which the respondent’s discriminatory action directly or proximately caused the harm and the extent to which other factors also caused the harm.  Id at 11-12.  An award of compensatory damages for non-pecuniary losses should also reflect the nature and severity of the harm and the duration or expected duration of the harm. Id at 14.  The types of objective evidence that the agency may obtain in assessing the merits of a claim for emotional distress damages include statements from complainant concerning his emotional pain or suffering, inconvenience, mental anguish, loss of enjoyment of life, injury to professional standing, injury to character or reputation, injury to credit standing, loss of health, and any other non-pecuniary losses that are incurred as a result of the discriminatory conduct. Statements from others, including family members, friends, and health care providers could address the outward manifestations or physical consequences of emotional distress, including sleeplessness, anxiety, stress, depression, marital strain, humiliation, emotional distress, loss of self-esteem, excessive fatigue, or a nervous breakdown.

Past Pecuniary Damages

Complainant’s claim for past pecuniary damages relates to such items as kennel fees, hotel costs, rent, utility bills, mortgage payments, medical bills and expenses, mileage costs, and his personal time.  In support of his claim, complainant submitted a kennel bill of $ 310.00 for care of his dog, and a security deposit receipt of $380.00 dated April 23, 1993 for his apartment rent.  Complainant also submitted his own records of charges that affected his bank accounts.  Further, complainant provided invoices that he received for prescription medicines and the front copies of checks that he paid in 1990, for various forms of medical treatment.

We agree with the agency that complainant was entitled to $310.00 for the kennel care costs that he incurred.  Complainant experienced this expense during his relocation period.  The discrimination that he was subjected to caused complainant to feel that he needed to leave his position at the Ottawa National Forest.  The agency denied complainant’s request for mileage costs related to care of his dog.  We find that since on appeal, complainant explained that he traveled seven miles per day on an average of six days per week over 27 weeks at $.26 per mile, complainant has provided sufficient evidence for an award of $295.00 for mileage costs.  With regard to the claims for hotel costs, rent, mortgage payments on complainant’s home in Ironwood, and utility bills, we find that complainant has failed to submit sufficient documentation to establish that he incurred the alleged expenses.  Complainant has not provided canceled checks, copies of bills, or other forms of evidence that sufficiently support his claim.  Also, we shall not award complainant damages for his meals and associated expenses.  It is fair to conclude that complainant would have had similar meal requirements notwithstanding the discrimination, and in any event, he has not documented the expenses that he allegedly incurred.  Further, complainant is not entitled as a form of compensatory damages to the requested amounts for the personal time that he expended with regard to traveling or any of the other relevant activities.

As for complainant’s request for $260.00 in mileage costs pertaining to his new home search, and $1,560.00 in mileage costs relating to his trips between Laona and Ironwood, we note that complainant explained on appeal that from November 1992 until September 1993, he searched for a new residence and also traveled back and forth for 25 weeks between Ironwood and Laona.  Inasmuch as he would not have incurred this travel expense had he not been discriminated against, we find that complainant is entitled to this mileage allowance in the combined amount of $1,820.00.

With regard to complainant’s claim for past pecuniary damages pertaining to medical bills and expenses, we initially note that there is no entitlement to compensatory damages for matters that occurred prior to November 21, 1991, the effective date of the Civil Rights Act of 1991.  Landgraf, supra.  Therefore, all amounts requested for medical treatment and associated expenses that occurred prior to November 21, 1991 are denied.  As for the medical treatment and associated expenses that occurred subsequent to November 21, 1991, we note that the agency awarded $796.25 for treatment from June 17, 1994 through February 27, 1996, and $353.60 for associated mileage costs.  In granting this award, the agency noted that complainant’s psychiatrist referenced the relationship between complainant’s depression and the agency’s failure to resolve ongoing employment issues.  However, as the agency noted with regard to other medical expenses claimed by complainant, complainant stated that the discriminatory conditions he experienced did not exist after he transferred from the Ottawa National Forest in December 1992.  The record indicates that the stress and depression experienced by complainant during the treatment period of June 17, 1994 through February 27, 1996 were attributable to the delays in the processing and investigation of the instant complaint.  The Commission notes that compensatory damages provisions were not added to EEO statutes to address how an agency litigates an EEO complaint alleging employment discrimination, but to address how an agency treated an applicant or an employee in an employment-related context.  See Appleby v. Department of the Army, EEOC Appeal 01933897 (March 4, 1994).  Therefore, the Commission has held that a complainant is not entitled to compensatory damages caused by the stress of participating in the EEO process. See Rountree v. Department of Agriculture, EEOC Appeal No. 01941906 (July 7, 1995).  We find that the agency awards of $796.25 and $353.60 were not warranted as complainant failed to establish that his medical treatment was necessitated by the discrimination that occurred prior to his move from the Ottawa National Forest in December 1992.  Based on the same reasoning, we also find that the medication costs incurred in 1994, 1995, and 1996, as well as the services and costs related to complainant’s treatment by St. Mary’s Hospital and the Northern Wisconsin Psychological Associates shall not be awarded as compensatory damages.

With respect to complainant’s request for back pay in the amount of $38,209.00 and the reimbursement of sick leave, we note that 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.  In light of the fact that this appeal concerns the agency’s final decision on compensatory damages, we find that complainant’s claim for back pay and reimbursement of sick leave are not potential forms of compensatory damages and they are denied in the context of this decision.

As for complainant’s request for attorney’s fees of $254.00 with regard to his initial attorney in this matter, we note that complainant submitted a copy of a check for $150.00 made payable to that attorney.  However, complainant has provided no bill from that attorney or an explanation as to what services were rendered.  Therefore, we find that the agency appropriately denied complainant’s request for $254.00 in attorney’s fees.  As for his request for $143.00 in mileage costs associated with obtaining legal services from this attorney, complainant did not provide a sufficient explanation as to how this expense was calculated.  Therefore, he is not entitled to an award for mileage costs.  Complainant further requested that he receive $5,600.00 for the time that he spent working on his complaint.  Complainant has not claimed that he was denied official time to work on his complaint.  We find that his use of personal time to work on the instant complaint is not compensable.

Future Pecuniary Expenses

Complainant submitted a claim for $9,464.00 for future costs of medical expenses.  This amount was arrived at by calculating $2,247.00 per year at 6% interest for five years.  In support of this claim, complainant submitted his psychiatrist’s letter dated June 8, 1995, which stated that complainant’s depression was ongoing as long as the employment issues continue.  However, as previously noted, the record supports the conclusion that the condition complainant was treated for during this period arose from his frustration with the processing of the instant complaint.  Complainant has not established that the estimated future pecuniary expenses were directly attributable to the discrimination that he was subjected to from November 21, 1991 to December 1992.

Non-pecuniary Damages

Complainant requests an award of $150,000.00 in compensatory damages for stress whereas the agency issued an award of $9,000.00.  In support of his claim, complainant submitted a narrative account of the pain and suffering he states that he has endured since the discrimination commenced. As previously indicated, our analysis of this claim focuses on the impact of the discrimination that complainant experienced from November 21, 1992 to December 1992.  In his statement, complainant explained that within a month of the settlement of his original complaint in July 1991, the agency again began to discriminate against him.  According to complainant, the discriminatory conditions continued until he transferred to the Nicolet National Forest in December 1992.  Complainant indicated that the criticism of his work caused him to suffer stress and a loss of interest in recreational activities.  Complainant explained that he experienced stress because of the difficulty he had in selling his home in Ironwood and in finding a new house in the Laona area.  According to complainant, it was stressful for him to move after being in one location for 18 years as he suffered the loss of close friendships that he had formed in Ironwood.  It is also apparent from his daughter’s letter that leaving his home adversely affected his relationship with his daughter.

Complainant further indicates that he was humbled by being placed in a position of lesser stature and importance.  As previously stated, the stress that complainant has experienced due to the delays in the handling of the instant complaint is not compensable.  According to complainant’s own statement, the agency’s handling of his complaint was the principal cause of his  stress after he relocated.  Given that statement, we are not persuaded by the statement from his former fiancee that complainant’s “despondent state of mind” since October 1994 was mostly due to the harassment he experienced at the Ottawa National Forest.  Further, the statement from complainant’s psychiatrist in June 1995 that his major depression would continue as long as the employment issues continue is not sufficient to establish that the condition was linked to any agency actions other than the agency’s handling of the instant complaint.

What the judges use to lower the value of your claim

It is a Commission goal to make damage awards for emotional harm consistent with awards in similar cases.  In Bever v. Department of Agriculture, EEOC Appeal No. 01953949 (October 31, 1996), the Commission awarded $15,000.00 for non-pecuniary damages in order to compensate the complainant.  According to the complainant, the agency’s actions creating a hostile work environment caused her to develop situational anxiety and as a result she needed to take mood elevators.  The Commission noted that her symptoms included uncontrolled crying, weight loss, and depression.

In Sinnott v. Department of Defense, EEOC Appeal No. 01952872 (September 19, 1996), the Commission awarded $20,000.00 in non-pecuniary damages for the emotional  suffering that the complainant endured as a result of sexual harassment.  In that case, the evidence showed that complainant had suffered emotionally and that her marriage had deteriorated.

In Rountree v. Department of Agriculture, EEOC Appeal No. 01941906 (July 7, 1995), affirmed, EEOC Request No. 05950919 (February 15, 1996), the Commission ordered an award of $8,000.00 in non-pecuniary damages where the complainant’s statement and a psychologist’s report indicated that some of the complainant’s emotional distress, including feelings of inadequacy, failure, and depression, were the result of a discriminatory performance appraisal and the denial of bonus pay based on that appraisal.

Having carefully considered the facts of this case in conjunction with previous awards of compensatory damages by the Commission, we find that complainant is entitled to non-pecuniary damages in the amount of $15,000.00.

In reaching this amount, the Commission has considered a number of factors.  For example, we considered the nature and severity of the discrimination, as well as the nature and severity of complainant’s emotional pain and suffering.  We considered the duration of the harm that resulted from the discrimination.  Additionally, we considered the amounts awarded in similar cases.  Based on all of these considerations, we find that $15,000.00 is a proper award for the emotional harm which complainant has suffered.

CONCLUSION

For the foregoing reasons, the final agency decision is MODIFIED to reflect the following damage awards.  Complainant is awarded $15,000.00 in non-pecuniary damages and $2,425.00 for past pecuniary damages. Complainant is entitled to interest on $17,425.00 from June 27, 1996 through the date of this decision.  Complainant is also entitled to reasonable attorney’s fees incurred in the pursuit of the instant appeal.

ORDER

The agency is ORDERED to take the following actions:

The agency shall issue a check to the complainant for $17,425.00 plus interest from June 27, 1996 through the date of this decision, within (60) calendar days of the date this decision becomes final.

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 shall include supporting documentation verifying 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 (T0400)

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:

April 27, 2000

____________________________

Date                          Carlton M. Hadden, Acting Director

Office of Federal Operations

CERTIFICATE OF MAILING

For timeliness purposes, the Commission will presume that this decision was received within five (5) calendar days of mailing.  I certify that the decision was mailed to complainant, complainant’s representative (if applicable), and the agency on:

_______________                   __________________________

Date

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 record does not establish when complainant received the final agency decision.  Absent evidence to the contrary, we find that the instant appeal was timely filed.