While she had medical bills and reciepts, she did not have proper medical documentation nor did she have proper supportive letters from family showing a causal relationship to discrimination…
There is much to learn from this case that was dismissed.
here is another example of not being prepared, when the agency asks how much to award:
Pecuniary Damages. Complainant did not submit documents or other proof
of actual monetary or out-of-pocket expenses incurred as a result of
the agency’s discriminatory conduct. The record does not indicate that
complainant made a claim for pecuniary damages.
Sandra S. Johnson v. National Aeronautics and Space Administration
0120053146
4/5/07
Sandra S. Johson,
Complainant,
v.
Michael Griffin,
Administrator,
National Aeronautics and Space Administration,
Agency.
Appeal No. 0120053146<1>
Agency No. NCN-01-MSFC-A015
DECISION
On March 24, 2005, Sandra S. Johnson (complainant) filed an appeal from
the February 17, 2005, Final Agency Decision (FAD) of the National
Aeronautics and Space Administration (agency) denying an award of
compensatory damages. This FAD followed the agency’s determination on
December 22, 2003, that it discriminated against complainant on the bases
of sex and age (DOB 1/18/44) when she was not selected for the position of
Contract Representative, GS-13, in September 2000, in violation of Title
VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et
seq., and the Age Discrimination in Employment Act of 1967, as amended,
29 U.S.C. § 621 et seq.<2> The appeal is timely filed (see 29 C.F.R. §
1614.402(a)) and is accepted in accordance with 29 C.F.R. § 1614.405.<3>
Pursuant to the agency’s order following its finding of discrimination,
complainant submitted her claim for compensatory damages on January 23,
February 10, and March 18, 2004. By letter dated March 29, 2004, the
agency requested further information, explaining to complainant that it
was her burden and obligation to submit objective evidence in support of
her claim and to show that the harm she experienced was causally related
to the agency’s discriminatory act, i.e., her non-selection in September
2000. Complainant responded on May 5, 2004. In its FAD, the agency
determined that complainant was not entitled to compensatory damages,
since her documentation lacked any objective showing or demonstration
that the medical or other costs involved events that were caused by the
agency’s discriminatory act.
Complainant’s Submission
Complainant’s submissions to the agency in support of her claim consisted
of the final pay stub for the years 2001, 2002, and 2003; identification
of her two attorneys, one employed during mediation of her claim, and a
statement that she paid them $1,500; cancelled checks from September 2000;
health insurance reports for 2002-2003, without diagnoses; medical reports
from 1999, 2003, and 2004; a list of drugs purchased from November 2001,
without diagnoses; and answers to the agency’s questions raised in the
letter of March 29, 2004. According to the agency, complainant sought
compensatory damages of $1,640,038.
Pecuniary Damages. From the documents submitted by complainant, the
agency determined that she claimed pecuniary damages of $1,525 for
medical care, $1,364 for medications, $13,535 for LWOP (leave without
pay), and duplication costs of $151. She stated that she had numerous
illnesses, including asthma, viruses, stomach disorders, hypothyroidism,
and arthritis, all of which pre-date September 2000. In addition,
a letter from her doctor stated she had autoimmune diseases, including
Addison’s Disease. In answer to the agency’s question regarding stress,
she suggested that the agency call her doctor. As to her claim to
recoup her LWOP, she stated that she used it because of “job pressures.”
Non-pecuniary Damages. Complainant sought $300,000, stating that the
agency’s discrimination “affected all aspects of my life” for which she
suffered “intangible injuries.” She stated that her participation in
the EEO process caused sleeping problems, she gained weight, and she
found that it was “very stressful.”
Future Pecuniary Damages. Complainant stated that she was entitled
to $1,000,000, in order to take care of “my health and raising my
grandson.” In addition, she claimed $300,000 for loss of respect from
her peers and the loss of enjoyment of family and friends. Further,
she calculated that, to make up for what she believed to be a lack of
future performance awards or promotions, she was owed $23,462.
Attorney’s Fees. In an email to the agency, complainant stated she
employed two attorneys, one during mediation of her claim, and provided
only their name and address; she claimed she paid them $1,500, but
could not say if that amount was reasonable attorney’s fees.
Legal Standards
The Civil Rights Act of 1991 (CRA) authorizes awards of compensatory
damages as relief for intentional discrimination in violation of
Title VII.<4> 42 U.S.C. § 1981a. The Supreme Court has affirmed
the Commission’s holding that compensatory damages are recoverable
in the administrative process. West v. Gibson, 527 U.S. 212 (1999);
see Jackson v. USPS, EEOC Appeal No. 01923399 (November 12, 1992),
req. to reopen den., EEOC Request No. 05930306 (February 1, 1993).
The CRA allows compensatory damages for proven losses and suffering due
to the discriminatory acts or conduct of the agency and include past
pecuniary losses, future pecuniary losses, and non-pecuniary losses that
are directly or proximately caused by the agency’s discriminatory conduct
or action. See Compensatory and Punitive Damages Available Under Section
102 of the Civil Rights Act of 1991, EEOC Notice No. N915.002 (July 14,
1992) (Notice). Recovery from employers with more than 500 employees,
such as the agency, is limited to $300,000 for future pecuniary and
non-pecuniary damages. Id.
In a claim for compensatory damages, it is a complainant’s obligation to
demonstrate, through appropriate and probative evidence and documentation,
the harm suffered as a result of the agency’s discriminatory action; the
extent, nature, and severity of the harm suffered; and the duration or
expected duration of the harm. Rivera v. Department of the Navy, EEOC
Appeal No. 01934156 (July 22, 1994), req. to recon. den., EEOC Request
No. 05940927 (December 11, 1995); Notice at 11-12, 14; see Carpenter
v. Department of Agriculture, EEOC Appeal No. 01945652 (July 17, 1995).
Objective evidence in support of a claim for pecuniary damages includes
documentation showing actual, out-of-pocket expenses with an explanation
of the expenditure and, for non-pecuniary claims, statements from
the complainant and others, including family members, co-workers, and
medical professionals, describing the harm and demonstrating that the
discriminatory action caused the harm. Notice at 9; Carle v. Department
of the Navy, EEOC Appeal No. 01922369 (January 5, 1993).
Awards are limited to compensation for the actual harm suffered
as a result of the agency’s discriminatory actions. See Carter
v. Duncan-Higgins, Ltd., 727 F.2d 1225 (D.C. Cir. 1984); Notice at 13.
The agency is only responsible for those damages that are clearly shown
to be caused by the agency’s discriminatory conduct. Carle v. Department
of the Navy, supra; Fazekas v. USPS, EEOC Appeal No. 01954627 (April
7, 1997); see also Johnson v. Department of Interior, EEOC Appeal
No. 01961812 (June 18, 1998). To recover damages, the complainant
must prove that the agency’s discriminatory actions were the cause
of the pecuniary or non-pecuniary loss. Notice at 8. An award of
compensatory damages for non-pecuniary losses, including emotional harm,
should reflect the extent to which the agency’s discriminatory action
directly or proximately caused the harm and the extent to which other
factors also caused the harm. Notice at 11-12 (“To recover damages,
the complaining party must prove that the employer’s discriminatory act
or conduct was the cause of his loss. The critical question is whether
the complaining party incurred the pecuniary losses as a result of the
employer’s discriminatory action or conduct.”).
The extent of an agency’s liability may be tempered by other factors
that affected a complainant, in particular herein, the complainant’s
medical and emotional condition at the time of the agency’s action.
Where the harm caused by its action may be an aggravation of pre-existing
conditions, the agency is generally liable for additional harm.
Guidance at 11. In considering such cases, the Commission relies on
the principle that “a tortfeasor takes its victims as it finds them.”
Wallis v. USPS, EEOC Appeal No. 01950510 (November 13, 1995), (citing,
Williamson v. Handy Button Machine Co., 817 F.2d 1290, 1295 (7th
Cir. 1987)). However, when a complainant has a pre-existing condition,
the agency is liable only for the additional harm or aggravation, and, if
the complainant’s pre-existing condition inevitably would have worsened,
the agency is entitled to a reduction in damages reflecting the extent to
which the condition would have worsened even absent the discrimination.
Notice at 12. Punitive damages are not available against the federal
government. Notice at 4.
The Commission has held that a complainant may not recover non-pecuniary
compensatory damages for pain or stress associated with prosecution
of an EEO complaint. Rountree v. Department of Agriculture, EEOC
Appeal No. 01941906 (July 7, 1995), aff’d, EEOC Request No. 05950919
(February 15, 1996). Therefore, an award of damages must reflect only
the harm experienced as a direct and proximate result of the agency’s
discriminatory act and cannot include relief for harm related to the
EEO process. Olsen v. Department of Defense, EEOC Appeal No. 01956675
(July 29, 1998).
Complainant’s Entitlement to Compensatory Damages
We find that the agency properly determined that complainant was not
entitled to an award of proven compensatory damages. To establish her
entitlement to compensatory damages, it was complainant’s obligation
to demonstrate, through actual and probative evidence, supported by
documentation, that the harm for which she claimed damages (a) was
caused by and a result of the agency’s discriminatory action, i.e., her
non-selection in September 2000; (b) the extent, nature, and severity
of the harm she suffered; and (c) the duration or expected duration of
the harm. Rivera v. Department of the Navy, supra. Complainant did
not submit statements, documents, or other proof of actual monetary or
out-of-pocket expenses incurred as a result of the agency’s discriminatory
conduct.
Further, we find that the agency fully explained to complainant that it
was her obligation to demonstrate that she was entitled to compensatory
damages. After receipt of her submissions of January 23, February 10, and
March 18, 2004, the agency informed complainant that the information and
evidence she provided was insufficient to support a claim for compensatory
damages and attorney’s fees and costs. In its letter of March 29,
2004, the agency provided “information, references, and instructions” to
complainant “as a guide to you for your submission.” The agency went
on to explain the different types of compensatory damages available
and advised her that specific information, supported by documentation,
must be included in her claim. She was informed that average costs
or an average number of doctor visits was not acceptable and did not
establish entitlement to compensatory damages. The agency explained to
complainant that “you have the burden of coming forward with sufficient
proof of damages…and how those losses relate to the discriminatory
conduct.” Letter, p. 3. In addition, the agency presented a list of
specific questions to guide complainant in development of her claim.
Finally, we find that complainant has not shown that she is entitled
to damages for health-related reasons. She did not show that her
medical conditions, described in her statement and medical report,
were not caused by, or a result of, the agency’s discriminatory action
in September 2000. In support of this finding, we note that no medical
documentation connected her health conditions, or exacerbation of her
health conditions, to the agency’s action in September 2000. Also,
complainant did not show that she is entitled to compensatory damages
for lack of future award and promotions; other than her own speculation,
she did not present probative evidence in support of this claim, nor
has she presented any evidence that the agency’s discrimination was
causally related to raising her grandson or the loss of enjoyment of
family and friends. A letter from her daughter describing her mother’s
behavior referenced only her exasperation over the EEO process and not
the actual non-selection. For these reasons, we find that complainant
is not entitled to compensatory damages.<5>
CONCLUSION
Accordingly, the agency’s decision is AFFIRMED.
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 (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
_____4/5/07_____________
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
1Due to a new data system, this case has been re-designated with the
above referenced appeal number.
2In a separate complaint consolidated with the non-selection matter,
complainant claimed discrimination with regard to a desk audit.
The agency found that it did not discriminate against complainant on
this issue, and she did not file an appeal from this finding.
3The instant appeal will not address any other provisions of the
agency’s December 22, 2003, Order. We will also not address new
issues raised by complainant regarding her recent work experiences;
it is not appropriate to raise new claims for the first time on appeal.
See Hubbard v. Department of Homeland Security, EEOC Appeal No. 01A40449
(April 22, 2004).
4Compensatory damages and attorney’s fees are not available for
discrimination based on age during the administrative processing of EEO
complaints.
5With regard to her claim for attorney’s fees and costs, we note that
the record does not identify an attorney of record. Further, claims for
attorney’s fees and costs must be submitted according to the Commission’s
regulations, 29 C.F.R. § 1614.501(e).
