Here is a typical case where the agency is in dispute with the complainant as to actual amounts of award for “emotional harm”. This process will delay the decision, and cause undue harm to someone obviously in pain.
Dana M. Dukart v. United States Postal Service
01986798
April 13, 2001
.
Dana M. Dukart,
Complainant,
v.
William J. Henderson,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01986798
Agency No. 4E-590-1022-94
DECISION
Complainant timely initiated an appeal from the agency’s final decision
concerning her equal employment opportunity (EEO) complaint of unlawful
employment discrimination in violation of Title VII of the Civil Rights
Act of 1964 (Title VII), as amended, 42 U.S.C. § 2000e et seq., and
Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as
amended, 29 U.S.C. § 791 et seq. The appeal is accepted pursuant to 29
C.F.R. § 1614.405.
ISSUE PRESENTED
The issue on appeal is whether the agency’s final decision properly
determined the amount of compensatory damages due to complainant.
BACKGROUND
Complainant filed a formal EEO complaint alleging that she was
discriminated against on the basis of sex (female) and disability (stress,
anxiety, and depression) when (1) the Postmaster (PM) denied her access
to a telephone call from an Employee Assistance Program (EAP) counselor;
(2) on the basis of reprisal (contacting an EEO counselor) when the PM
denied her previously approved annual leave; and (3) on the bases of sex
when the PM subjected her to on-going harassment. Complainant retired
from the agency on March 20, 1995.
Following an investigation, the agency issued a final decision (FAD)
on July 14, 1995, finding no discrimination. Complainant appealed and
the Commission issued a decision modifying the agency’s FAD regarding
issues (2) and (3). The Commission found that complainant failed
to prove discrimination regarding issue (1) because the PM told
all employees that he would answer all business calls, and the EAP
Counselor identified himself to the PM as a business caller, but found
that complainant established discrimination regarding issues (2) and
(3). Dana M. Dukart v. USPS, EEOC Appeal No. 01956135 (September 16,
1997). The Commission noted that record evidence revealed that the PM
used an intimidating manner when he dealt with female, as opposed to
male employees, and that he made disparaging and obscene remarks about
female employees. In one incident, the PM intimidated complainant into
tears in September 1993, when teaching her how to do the station books.
In March 1994, he attempted to intimidate her into working ten and a
half hours without a break. The Commission found that, as a result
of the PM’s on-going intimidating behavior, complainant was forced to
go on medical leave beginning on June 23, 1994, and that she then saw
a licensed pyschotherapist for twelve individual sessions to cope with
her feelings of hopelessness and anxiety caused by the PM’s harassment.
The Commission concluded that the PM’s on-going harassment was so
pervasive that it altered the conditions of complainant’s employment
and created an abusive working environment.
The Commission ordered the agency, among other things, to conduct a
supplemental investigation into complainant’s entitlement to compensatory
damages and issue a final decision within thirty days of receipt of
complainant’s evidence of damages.
Complainant submitted a claim for compensatory damages in the amount of
$62,894.16 plus interest. Complainant claimed $6,447.08 in past pecuniary
losses, including medical and miscellaneous expenses; the same amount,
$6,447.08, in future pecuniary losses, and $50,000 in non-pecuniary
losses, including emotional and physical distress, pain and suffering.
On August 6, 1998, the agency issued a FAD awarding complainant $1,449.41
in past pecuniary losses, $1,449.41 in future pecuniary losses, and
$8,601.18 in non-pecuniary losses for a total of $11,500 in compensatory
damages.<1> On the issue of past pecuniary damages, the agency found
that, although complainant submitted documentation on medical charges,
listing dates she visited a physician or therapist and the amount charged,
she did not list her actual out-of-pocket expenses verses the amount
paid by her medical insurance. Regarding future pecuniary expenses,
the agency noted that complainant failed to submit any statement from
a health care provider establishing the need for future treatment.
Nonetheless, the agency awarded complainant the same amount as awarded
for past pecuniary losses. The agency did not explain its justification
for the award for non-pecuniary damages.
On September 15, 1998, the agency issued both a letter rescinding
the August 6, 1998 decision, and a new FAD. The new decision awarded
$6,447.08 in past pecuniary damages, nothing for future pecuniary damages,
and $5,000 in non-pecuniary damages for a total of $11,447.08.
On appeal, complainant argues that the agency erred in rescinding the
first FAD; that the first FAD erroneously reduced her medical expenses
based on health insurance coverage; and that the agency acted in
bad faith. She claims that the amount calculated by the agency for
non-pecuniary damages in both decisions is wrong because the agency
did not consider the severity or duration of the harm she suffered and
argues that the $50,000 she claimed is reasonable because she established
a causal connection between the discrimination and the harm suffered.
The record indicates that the EAP Counselor referred complainant for
mental health counseling. On June 17, 1994, her mental health counselor
wrote that complainant indicated that she was experiencing depression
related to problems with her supervisor. Complainant saw a doctor on
various dates in June, July, September and November 1994. The doctor
stated that complainant was suffering severe symptoms of anxiety and
depression which would be accelerated if she returned to the agency,
and thus recommended that she not return to work. The doctor stated
that complainant had suicidal thoughts and emotional problems which
complainant attributed to difficulties with her supervisor. The doctor
stated that the depression was possibly long term and intermittent.
In a July 6, 1994 personal statement provided to an investigator for
another employee’s complaint, complainant stated that she was threatened
and intimidated by the PM’s violent actions, verbal intimidation and
threats, loss of temper, that she lived in fear of his reactions to
questions, and that she was harassed to the point of being so upset
that she could not stop shaking on two occasions. In her November 18,
1994 affidavit, complainant stated that she had to call upon EAP for
help because of the hostile and stressful environment caused by the PM’s
discriminatory actions toward her and other female employees.
In a February 13, 1998 affidavit complainant averred that, because of
the PM’s harassment she felt hopeless, confused, fearful, angry, and was
visibly shaking. She stated that she suffered an inability to concentrate
and could not function enough to concentrate on leisurely activities
such as card playing. She stated that she had an inability to urinate
due to tenseness, and had paranoid and suicidal thoughts, sleeplessness,
extreme fatigue, loss of appetite, weight loss, hair loss including the
hair on her eye brows, and was divorced from her husband in 1995 as a
result of her anxieties.<2> She stated that she would start to shake
violently when she talked to others. Complainant averred that, although
she made attempts to work, she was unable to hold gainful employment
since she retired from the agency based on her physician’s advice.
She stated that prior to the harassment, she was a productive, ambitious,
active, self-confident woman, but is now shaky, emotionally distraught,
and mentally confused. She averred that since November 1997, she had been
working with her physician to reduce the amount of medication she takes.
She stated that she is still in the process of recovering
Complainant’s husband averred that prior to working with the PM at the
agency, complainant was an energetic, enthusiastic, self-confident person.
He averred she was happy when she was hired by the agency but that there
were drastic changes in his wife’s behavior during and following the
period of harassment. He stated that she came home from work crying and
emotionally upset, because the PM raised his voice and stood very close to
her while belittling her work ability. He stated that she began having
trouble eating and sleeping, and was very nervous. He continued that at
the time when complainant’s physician recommended that she retire, she
would cry for no apparent reason, eat very little, shake continuously,
and maintain an inconsistent sleep pattern. She began to think the phone
was bugged and that people were following her. He said that following
her resignation from the agency, he thought that complainant’s condition
would improve but it did not. He stated that complainant moved in and
out of their home for no apparent reason. He stated that she is still
unable to hold a job and will still get a lost look on her face.
ANALYSIS AND FINDINGS
To receive an award of compensatory damages, a complainant must
demonstrate that he or she has been harmed as a result of the agency’s
discriminatory action; the extent, nature, and severity of the harm; and
the duration or expected duration of the harm. Rivera v. Department
of the Navy, EEOC Appeal No. 01934157 (July 22, 1994) req. for
recons. den. EEOC Request No. 05940927 (December 11, 1995); Compensatory
and Punitive Damages Available Under Section 102 of the Civil Rights
Act of 1991, EEOC Notice No. 915.002 (July 14, 1992), at 11-12, 14.
Nonpecuniary Damages
Damage awards for non-pecuniary losses have varied substantially
from one another. An award of compensatory damages for non-pecuniary
losses, including emotional harm, should reflect the extent to which
the respondent directly or proximately caused the harm, and the extent
to which other factors also caused the harm.
The Commission notes that damage awards for emotional harm are difficult
to determine and that there are no definitive rules governing the amount
to be awarded in given cases. A proper award must meet two goals: that it
not be “monstrously excessive” standing alone, and that it be consistent
with awards made in similar cases. See Cygnar v. City of Chicago, 865
F.2d 827, 848 (7th Cir. 1989). The Commission has awarded compensatory
damages in amounts from $3,000.00 to $100,000.00, based on the extent
of the damage proved. See Kelly v. Department of Veterans Affairs,
EEOC Appeal No. 01951729 (July 29, 1998); and Carpenter v. Department
of Agriculture, EEOC Appeal No. 01945652 (July 17, 1995), respectively.
It is the Commission’s goal to make damage awards for emotional harm
consistent with awards in similar cases. See e.g., Willena Johnson
v. Department of the Interior, EEOC Appeal No. 01961812 (June 18, 1998);
(award of $37,500 for damages resulting from depression and stress, and
physical pain and suffering); Carpenter v. Department of Agriculture, EEOC
Appeal No. 01945652 (July 17, 1995) (award of $75,000 in non-pecuniary
damages for deterioration in complainant’s medical and emotional condition
resulting in his disability retirement, aggravation of asthma, panic
attacks, insomnia, digestive problems, loss of spirit, social withdrawal,
feelings of hostility and irritability, loss of libido);
In the case at hand, the Commission finds that complainant’s statements,
the statement of her husband and her doctor all support her contention
that her depression and anxiety were caused by the PM’s harassment and
discrimination. The Commission found the harassment to be on-going and
pervasive in its prior decision. Given the severity and duration of
complainant’s emotional and physical damage including weight loss, hair
loss, sleeplessness, fatigue, an inability to urinate and an inability to
concentrate which has affected her ability to find other meaningful work,
we sustain complainant’s claim for non-pecuniary damages of $50,000 as
reasonable and comparable to awards in similar cases.
Pecuniary Damages
The record contains an itemized list of complainant’s medical expenses,
including doctor’s appointments, therapy and prescription drugs totaling
$6,247.08. The agency awarded complainant the full amount she sought
for her past pecuniary damages and the $200 claimed for photocopies,
telephone and mailing expenses. We therefore agree that complainant is
entitled to $6, 447.08 in past pecuniary damages and costs because she has
established, through her itemized list, her entitlement to these damages.
Regarding future pecuniary losses, other than the note written by
complainant’s doctor in June 1994, indicating that complainant suffered
possible long-term, intermittent depression, the Commission finds
that complainant submitted no documentation from medical professionals
indicating the extent or duration of future medical costs. Complainant’s
listing of past medical expenses indicates that she last visited a
doctor or therapist on February 20, 1996. She listed two receipts for
prescription drugs in 1997 totaling $285.63, and one in January 1998,
for $66.99. We, therefore, find the $6,447.08 sought by complainant to
be speculative and affirm the agency’s denial of future pecuniary damages.
CONCLUSION
Based upon a review of the record herein, it is the decision of the
Commission to MODIFY the agency’s decision with regard to the issue
of compensatory damages, awarding $50,000 in non-pecuniary damages,
$6,447.08 in past pecuniary damages, and nothing in future pecuniary
damages for a total of $56,447.08 in compensatory damages.
ORDER
The agency is ORDERED to pay complainant compensatory damages in the
amount of $56,447.08, plus interest, less any amount already paid, within
thirty (30) calendar days of the date this decision becomes final. The
agency shall also pay complainant reasonable attorney’s fees incurred in
pursuit of this appeal. A copy of the agency’s letter to complainant
forwarding payment of the determined compensatory damages must be sent
to the Compliance Officer, as referenced below.
ATTORNEY’S FEES (H0900)
If complainant has been represented by an attorney (as defined by
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 (K0900)
Compliance with the Commission’s corrective action is mandatory.
The agency shall submit its compliance report within thirty (30)
calendar days of the completion of all ordered corrective action. The
report shall be submitted to the Compliance Officer, Office of Federal
Operations, Equal Employment Opportunity Commission, P.O. Box 19848,
Washington, D.C. 20036. The agency’s report must contain supporting
documentation, and the agency must send a copy of all submissions to
the complainant. If the agency does not comply with the Commission’s
order, the complainant may petition the Commission for enforcement of
the order. 29 C.F.R. § 1614.503(a). The complainant also has the right
to file a civil action to enforce compliance with the Commission’s order
prior to or following an administrative petition for enforcement. See 29
C.F.R. §§ 1614.407, 1614.408, and 29 C.F.R. § 1614.503(g). Alternatively,
the complainant has the right to file a civil action on the underlying
complaint in accordance with the paragraph below entitled “Right to File
A Civil Action.” 29 C.F.R. §§ 1614.407 and 1614.408. A civil action
for enforcement or a civil action on the underlying complaint is subject
to the deadline stated in 42 U.S.C. § 2000e-16(c)(Supp. V 1993). If the
complainant files a civil action, the administrative processing of the
complaint, including any petition for enforcement, will be terminated.
See 29 C.F.R. § 1614.409.
STATEMENT OF RIGHTS – ON APPEAL
RECONSIDERATION (M0900)
The Commission may, in its discretion, reconsider the decision in this
case if the complainant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. The appellate decision involved a clearly erroneous interpretation
of material fact or law; or
2. The appellate decision will have a substantial impact on the policies,
practices, or operations of the agency.
Requests to reconsider, with supporting statement or brief, must be filed
with the office of federal operations (OFO) within thirty (30) calendar
days of receipt of this decision or within twenty (20) calendar days of
receipt of another party’s timely request for reconsideration. See 29
C.F.R. § 1614.405; Equal Employment Opportunity Management Directive for
29 C.F.R. Part 1614 (EEO MD-110), 9-18 (November 9, 1999). All requests
and arguments must be submitted to the Director, Office of Federal
Operations, Equal Employment Opportunity Commission, P.O. Box 19848,
Washington, D.C. 20036. In the absence of a legible postmark, the
request to reconsider shall be deemed timely filed if it is received by
mail within five days of the expiration of the applicable filing period.
See 29 C.F.R. § 1614.604. The request or opposition must also include
proof of service on the other party.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely, unless extenuating circumstances
prevented the timely filing of the request. Any supporting documentation
must be submitted with your request for reconsideration. The Commission
will consider requests for reconsideration filed after the deadline only
in very limited circumstances. See 29 C.F.R. § 1614.604(c).
COMPLAINANT’S RIGHT TO FILE A CIVIL ACTION (R0900)
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.
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
April 13, 2001
__________________
Date
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days after it was mailed. I certify
that this decision was mailed to complainant, complainant’s representative
(if applicable), and the agency on:
__________________
Date
______________________________
Equal Opportunity Assistant
1 Complainant notified the Commission on July 24, 1998, that the
agency failed to timely issue a FAD. The agency noted in the FAD that
the supplemental investigation was completed on February 20, 1998.
2 Complainant stated that she remarried her husband in August 1996.
