Either the federal agency or the EEOC reimbursing chiropractic treatment in an EEOC discrimination claim is a very good thing.
The reason that reimbursement for chiropractic treatment is important, is that chiropractic is scientifically proven to help with musculo-skeletal injuries. In an evidence based study, which most chiropractors perform on a daily basis, patients are more satisfied with their chiropractic treatment than surgery, addictive pain drugs.
Cathy Carpenter v. Department of Transportation
01971161
March 17, 2000
Cathy Carpenter, )
Complainant, )
) Appeal No. 01971161
v. ) Agency No. DOT 94-0217
) Hearing No. 370-95-X2100
Rodney E. Slater, )
Secretary, )
Department of Transportation, )
Agency. )
____________________________________)
DECISION
On November 18, 1996, Cathy Carpenter (complainant) timely appealed
the final decision of the Department of Transportation (agency), dated
October 15, 1996, concerning her claim for compensatory damages following
a finding that she had been discriminated against in violation of Title
VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et
seq., and the Rehabilitation Act of 1973, as amended, 29 U.S.C. § 791 et
seq.<1> The appeal is accepted pursuant to 64 Fed. Reg. 37,644, 37,659
(1999)(to be codified at 29 C.F.R. § 1614.405).<2>
At the time this matter arose, complainant was working for the
agency at the Coast Guard Training Center in Petuluma, California,
as a computer-assisted design (CAD) technician. On April 13, 1994,
complainant filed a formal EEO complaint with the agency alleging
she had been discriminated against on the bases of her sex (female),
mental disability (depression), and retaliation for engaging in prior
EEO activity, when her immediate supervisor (male) subjected her to a
barrage of abusive, demeaning and confusing comments during the period of
December 4, 1992, through December 8, 1993, and when she was terminated on
December 22, 1993. Complainant’s complaint was processed by the agency
and scheduled for hearing before an EEOC Administrative Judge (AJ).
On August 24, 1995, after a hearing at which fifteen witnesses testified,
the AJ issued a decision concluding that complainant had proven that
she had been the victim of discrimination on each of the bases alleged.
To remedy its discriminatory conduct, the AJ recommended that the agency
rescind complainant’s removal and reinstate her with an appropriate back
pay award, as well as pay her attorney’s fees and costs. In addition,
the AJ determined that the discrimination and retaliation complainant
experienced caused her physical and emotional damage for which she was
entitled to be compensated. In this regard, the AJ recommended that
the agency pay complainant:
(a) Any out of pocket expenses for treatment by [complainant’s]
psychotherapist and psychiatrist;
(b) [Complainant’s] chiropractor bills (for treatment to relieve tension
caused by spinal problems arising out of these events);
(c) Any out of pocket expenses for medical care or prescription drugs
that were not paid by [complainant’s] health insurance plan;
(d) Non-monetary losses to include but not limited to sleeplessness,
headaches, stomach problems, fatigue, anxiety and depression.
On October 24, 1995, the agency issued a final decision, adopting the AJ’s
recommended finding of discrimination and retaliation.<3> The agency
also adopted the remedies outlined by the AJ. However, the agency held
that there was insufficient evidence of record to determine the amount
of compensatory damages to award complainant. Therefore, complainant
was given the opportunity to submit additional information on this issue.
In response, complainant submitted medical receipts as well as affidavits
from herself, her husband, her sister, her mother, a former supervisor,
a friend, a board-certified licensed clinical social worker (complainant’s
“psychotherapist”), her chiropractor, and a massage therapist. On October
15, 1996, the agency issued its final decision on compensatory damages,
awarding complainant $8,000.00 in non-pecuniary damages, $851.00 for
past pecuniary damages, and $1,872.00 for future pecuniary damages.
It is from this decision that complainant now appeals, arguing that the
agency’s decision is inconsistent and severely undervalues the amount of
damages in this case by failing to acknowledge the nature and severity
of the harm, as well as its duration.
PAST PECUNIARY LOSSES
The AJ’s decision reflects a finding that complainant suffered
significant emotional and physical harm as a result of the agency’s
discriminatory actions. This harm resulted in direct medical costs for
complainant incurred between late 1992 and the time she submitted her
documentation relating to her claim for compensatory damages to the agency
(December 1995). In September 1993, complainant began psychotherapy
with a licensed clinical social worker, initially paid for by the
agency’s Employee Assistance Program (EAP). This therapist diagnosed
complainant as suffering from severe work-related stress and depression.
While noting that complainant had suffered some low-level depression in
the past, the clinical social worker found that this previous condition
was significantly exacerbated by the treatment complainant received from
her supervisor and her subsequent termination. Some of complainant’s
symptoms reported by the clinical social worker were weight loss,
fatigue, insomnia, low self-esteem, poor concentration, and feelings
of hopelessness. After the initial six psychotherapy sessions paid
for by the agency’s EAP, complainant personally incurred $350.00 in
order to continue her treatment. The clinical social worker also
referred complainant to a psychiatrist, who prescribed anti-depressant
medication (Zoloft, Prozac and Trazodone), as well as a stress/depression
management class. As a result, complainant incurred another $216.00 in
out-of-pocket expenses (after her health insurance paid) related to her
mental health care.
With regard to her physical health costs, the agency has conceded
that complainant established the necessary nexus between the agency’s
discriminatory conduct and the stress-induced severe back pain suffered by
complainant. Complainant submitted documentation that she spent $2,491.00
in chiropractic care between December 1992 and October 1995. During the
same time period, she also incurred bills of $1,025.00 for massage therapy
recommended by her chiropractor and $605.00 in acupuncture treatments.
In its final decision on complainant’s claim for reimbursement of her
medical expenses, the agency noted that complainant testified that in
June 1994, about six months after she was terminated, she began to get
“back on track” in regard to some of the more severe emotional symptoms
she had experienced. Based on this testimony, the agency cut off its
liability for any past pecuniary damages incurred after June 1994.<4>
Based on this theory, the agency provided complainant an award of $65.00
in past mental health costs, $526.00 for the services of the chiropractor,
and $260.00 for massage therapy. The agency awarded complainant none of
the expenses incurred for acupuncture because it found no evidence that
the acupuncturist treated complainant for a condition stemming from the
agency’s conduct.
The Commission, after careful examination of the record, is unpersuaded by
the agency’s arguments that its liability for compensatory damages should
be limited to the period of March 1993 through June 1994. With regard to
the beginning of the period, the agency, by adopting the AJ’s decision,
is bound by the AJ’s characterization of the period of discrimination
commencing in December 1992, not March 1993. The agency has produced
no other evidence indicating complainant suffered no harm as a result
of discrimination until March 1993. The Commission further finds no
justification for cutting off the agency’s liability in June 1994.
Simply because complainant testified that this was the time period when
she felt she was turning the corner of recovery of her mental health
does not diminish the fact that the record documents that complainant
continued to experience symptoms of emotional stress long after June 1994.
For example, the clinical social worker testified at the hearing that
she assessed complainant in April 1995 and found her functioning but
still moderately depressed. Affidavits from complainant’s family and
friends, written in November 1995, confirm that complainant’s depression
persisted and that she continued to be emotionally volatile, lethargic
and lacking in self-esteem.
Based on this evidence, the Commission finds that complainant has
adequately documented her out-of-pocket mental health costs related to the
agency’s discriminatory conduct and is entitled to an award of the full
$559.26 requested. With regard to complainant’s chiropractor expenses,
the Commission finds that complainant is entitled to reimbursement for
the total $2,491.00 she spent between December 1992 and November 1995.
The agency’s argument that complainant would have been going to the
chiropractor throughout this period once per month for “maintenance”
visits even if she had not been subjected to discrimination is too
speculative and is not accepted by the Commission. Complainant also
requested $1,025.00 for massage therapy expenses. The agency determined
that there was a sufficient nexus between its discriminatory conduct
and the need for these treatments, but only until June 1994. Therefore,
it awarded complainant $260.00. For the reasons previously discussed,
the agency erred in not reimbursing the entire $1,025.00. However,
the Commission concurs with the agency’s finding that complainant has
failed to provide evidence establishing a nexus between the agency’s
discriminatory conduct and her need for acupuncture.<5> Therefore,
the agency correctly disallowed these expenses.
In summary, the Commission finds that complainant is entitled to an award
of $4,075.26 in past pecuniary damages for her mental and physical health
care costs resulting from the agency’s discriminatory actions.
FUTURE PECUNIARY LOSSES
In a report prepared on November 28, 1995, the clinical social worker
offered the opinion that complainant was currently suffering psychological
injury from the illegal discrimination she had endured and estimated that
she would need an additional “twelve to eighteen months of intensive and
ongoing psychotherapy.” Complainant’s chiropractor also estimated she
would need an additional year of twice monthly visits for the treatment
for her back pain. In its final decision, the agency agreed to reimburse
complainant for one year of psychotherapy treatment on a once a month
basis. On appeal, complainant argues that she needed weekly treatments
for a period of one year. The agency also agreed to pay for one year
of chiropractor visits on a once a month basis. Complainant urges that
the chiropractor’s recommendation of twice per month be reimbursed.
In light of complainant’s past history of weekly psychotherapy sessions
and the clinical social worker’s recommendation that she receive
“intensive and ongoing psychotherapy,” the Commission finds that
complainant should be reimbursed for twelve months of psychotherapy at
intervals determined appropriate by her therapist up to once per week.
In addition, on the recommendation of her chiropractor, complainant
should be reimbursed for twice monthly chiropractor visits for a period
of twelve months for back pain.
NON-PECUNIARY LOSSES
The agency awarded complainant $8,000.00 in non-pecuniary damages.
On appeal, complainant asserts that agency severely underestimated
both the severity and the duration of the harm that resulted from its
discriminatory actions. Complainant requested $200,000 for the pain
and suffering she endured. In support of her claim, in addition to the
medical evidence from her clinical social worker and chiropractor,
complainant submitted affidavits from herself, her husband, her
mother, her sister, a friend, and a former supervisor who attested
to the emotional and physical pain she suffered as a result of the
discrimination. The statements all describe a significant change in
complainant’s personality after she began working for the agency.
The affiants stated that complainant went from an enthusiastic,
hard-working and energetic person to someone who was perpetually
depressed, emotionally volatile, lethargic and lacking in self-esteem.
Complainant described her “devastation” when she was terminated and
said she had a recurring sense of loss and inability to trust anyone.
She also said she has been unable to control her emotional outbursts.
Complainant stated the her emotional problems, in combination with
her constant back pain, forced her to curtail many of the activities
she formerly enjoyed. Complainant and her husband also indicated that
they suffered significant marital problems as a result of the stress
and depression complainant experienced because of her employment with
the agency. Her husband indicated that he was also seeking therapy to
deal with these problems.
Section 102(a) of the Civil Rights Act of 1991, 105 Stat. 1071,
Pub. L. No. 102-166, codified at 42 U.S.C. § 1981a, authorizes an award
of compensatory damages as part of make-whole relief for intentional
discrimination in violation of the Rehabilitation Act of 1973, as
amended. See West v. Gibson, 119 S.Ct. 1906 (1999). Section 1981a(b)(3)
limits the total amount of compensatory damages that may be awarded
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 individuals
employed by the respondent. The limit for a respondent who has more than
500 employees is $300,000. 42 U.S.C. § 1981a(b)(3)(D). Non-pecuniary
losses are losses that are not subject to precise quantification
including 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.
There are no precise formulas for determining the amount of damages for
non-pecuniary losses. An award of compensatory damages for non-pecuniary
losses, including emotional harm, should reflect, however, the extent
to which complainant has established that the agency’s actions directly
or proximately caused the harm (“the nexus”), and/or the extent to which
other factors also may have caused the harm. In addition, a proper award
should be consistent with awards made in similar cases. The agency
should consider that Commission precedent, as well as jury and court
awards, for non-pecuniary damages based on emotional harm. See, e.g.,
Rountree v. Department of Agriculture, EEOC Appeal No. 01941906 (July 7,
1995) ($8,000 award based on complainant’s statement, and those of his
co-workers, concerning the emotional distress he experienced as a result
of a discriminatory performance rating); Smith v. Department of Defense,
EEOC Appeal No. 01943844 (May 9, 1996) ($25,000 found to be an appropriate
award for non-pecuniary damages in a sexual harassment case); Lawrence
v. United States Postal Service, EEOC Appeal No. 01952288 (April 18, 1996)
($3,000 award for non-pecuniary damages in a sexual harassment case); and
Wallis v. United States Postal Service, EEOC Appeal No. 01950510 (November
13, 1995) ($50,000 award for pain, suffering and emotional distress where
complainant produced sufficient evidence, including supporting statements
from his psychiatrist, to establish that the agency’s acts of reprisal
substantially contributed to the worsening of complainant’s mental
condition to the point where he had to take anti-depressive medication).
After careful consideration of all the evidence of record, as well as the
arguments of both parties on appeal, it is the decision of the Commission
that the agency undervalued the amount of non-pecuniary damages incurred
by complainant as a result of its discriminatory actions and thus erred in
only awarding her $8,000.00. The evidence establishes that complainant
suffered considerable and long-term emotional and physical harm directly
attributable to the agency’s discriminatory actions. While the Commission
recognizes that the record indicates that complainant had experienced
some previous low-level depression and back problems, the agency does
not dispute that its discriminatory conduct severely exacerbated those
problems, resulting in changes in complainant’s personality, strains in
her relationships with those close to her, and a loss in her enjoyment
of life which had not previously existed. Since working for the agency,
complainant has had to seek ongoing psychological and physical health
care, including the need for anti-depressant medication. Based on the
totality of the evidence, the Commission finds that complainant should
be awarded $35,000. See Wallis v. United States Postal Service, EEOC
Appeal No. 01950510 (November 13, 1995).
CONCLUSION
Accordingly, based on a thorough review of the record, and for the
reasons stated above, the Commission MODIFIES the agency’s decision on
complainant’s claim for compensatory damages. Pursuant to this decision,
the agency shall comply with the following Order.
ORDER
In addition to the relief already provided complainant by the agency
following its finding of discrimination, the agency shall take the
following remedial action:
(1) The agency shall, within sixty days (60) calendar days of the date
this decision becomes final, issue complainant a check for $39,075.26
representing the past pecuniary damages and non-pecuniary damages
owed complainant.
(2) In addition, upon receipt of documentation of charges, the agency
shall promptly reimburse complainant for the following future pecuniary
damages: (a) twelve months of psychotherapy of a frequency (up to once
per week) determined by complainant’s therapist; and (b) twelve months
of twice monthly chiropractor visits for back pain.
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)), 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).
COMPLAINANT’S RIGHT TO FILE A CIVIL ACTION (R1199)
This is a decision requiring the agency to continue its administrative
processing of your complaint. However, if you wish to file a civil
action, you have the right to file such action in an appropriate United
States District Court WITHIN NINETY (90) CALENDAR DAYS from the date
that you receive this decision. In the alternative, you may file a
civil action AFTER ONE HUNDRED AND EIGHTY (180) CALENDAR DAYS of the date
you filed your complaint with the agency, or filed your appeal with the
Commission. If you file a civil action, YOU MUST NAME AS THE DEFENDANT IN
THE COMPLAINT THE PERSON WHO IS THE OFFICIAL AGENCY HEAD OR DEPARTMENT
HEAD, IDENTIFYING THAT PERSON BY HIS OR HER FULL NAME AND OFFICIAL TITLE.
Failure to do so may result in the dismissal of your case in court.
“Agency” or “department” means the national organization, and not the
local office, facility or department in which you work. Filing a civil
action will terminate the administrative processing of your complaint.
FOR THE COMMISSION:
March 17, 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 after it was mailed. I certify
that this 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 Rehabilitation Act was amended in 1992 to apply the standards in
the Americans with Disabilities Act (ADA) to complaints of discrimination
by federal employees or applicants for employment. Since that time,
the ADA regulations set out at 29 C.F.R. Part 1630 apply to complaints
of disability discrimination. These regulations can be found on EEOC’s
website: WWW.EEOC.GOV.
3 In its decision, the agency stated that it was adopting the AJ’s finding
of sex discrimination and retaliation. It was silent, however, on the
AJ’s additional finding that the agency failed to provide complainant
with reasonable accommodation to her mental disability by assigning her to
another supervisor. As the agency did not expressly reject or modify this
finding, the Commission deems that it accepted it. 64 Fed. Reg. 37,644,
37,657 (1999)(to be codified at 29 C.F.R. § 1614.109(i)).
4 It should be noted that the AJ in this case found that complainant’s
supervisor’s discriminatory conduct began in December 1992. However,
in its final decision on damages, the agency limited the damage period
to March 1993 through June 1994.
5 For example, on some of the acupuncture bills it appears that
complainant was being treated for hypertension.
