The Complainant’s Evidence of Injury and Causation
Based on the affidavits given by the complainant and his wife, we find
that the agency’s discrimination caused marital strain, sleeplessness,
professional humiliation and embarrassment, and stress. The Commission
also concludes, however, that the complainant has not established
a connection between the agency’s discrimination and his headaches,
stomach aches, and nausea. Specifically, although the complainant
sought medical treatment for these conditions, no physician who treated
him attributed them to the agency’s actions. The Commission will now
address the complainant’s entitlement to the damages he has requested.
—
As discussed, the complainant argues that his situation is similar
to those experienced by the complainants in Carpenter and Wallis.
In those cases, however, both individuals were diagnosed with mental
and/or physical impairments found to be related to the agency’s
actions.<0> Conversely, the complainant has adduced no medical evidence
that establishes that his various physical and/or mental problems were
related to the agency’s discrimination. Therefore, the Commission finds
that this situation is clearly distinguishable from the ones in Wallis
and Carpenter. At the same time, the Commission notes that medical
evidence is not mandatory to establishing an entitlement to damages,
and the Commission has done so in a number of cases. See Damiano
v. U.S. Postal Service, EEOC Request No. 05980311 (February 28, 1999)
($5,000 in damages based on statements from complainant and co-workers
that the agency’s action left him hurt, angry, and depressed); Miller
v. U.S. Postal Service, EEOC Appeal No. 01956109 (January 23, 1998)
($7,500 in damages based on complainant’s testimony that he experienced
severe stress and anxiety); Benson v. Department of Agriculture,
EEOC Appeal No. 01952854 (June 27, 1996) ($5,000 in damages based on
testimony from complainant, family members, and co-workers regarding
the embarrassment and humiliation he experienced).
Like the complainants in Damiano, Miller, and Benson, the complainant’s
claim for damages is based exclusively on lay evidence attesting to
various problems, including embarrassment, humiliation, stress, marital
strain, and loss of self-esteem. Therefore, we find that the award in
this case should be in the range of the awards in those cases rather than
the awards in Wallis and Carpenter. Furthermore, we note that, although
the discrimination in this case lasted several years, more than half of
the discriminatory events pre-date the passage of the Civil Rights Act
of 1991, and, therefore, are not compensable. Based on the foregoing,
the Commission finds that the agency’s award of $9,000 is appropriate
to compensate the complainant for his losses.
—
Randall F. Sobol v. United States Postal Service
01986262
June 21, 2000
Randall F. Sobol, )
Complainant, )
) Appeal No. 01986262
v. ) Agency No. 1-F-968-1001-93
)
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
Agency. )
)
DECISION
INTRODUCTION
The complainant timely initiated an appeal to the Equal Employment
Opportunity Commission (Commission) from the final decision of the agency
concerning his claim that the agency violated Title VII of the Civil
Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq.<0> The appeal
is accepted by the Commission in accordance with 64 Fed. Reg. 37,644,
37,659 (1999) (to be codified at 29 C.F.R. § 1614.405).
ISSUE PRESENTED
The issue presented herein is whether the agency correctly calculated
the compensatory damages to which the complainant is entitled.
BACKGROUND
During the period in question, the complainant was employed as
Senior Operations Specialist, EAS-21, at the agency’s Processing and
Distribution Center in Honolulu, Hawaii. The complainant filed three EEO
complaints between 1991 and 1993 alleging that he had been discriminated
against based on race (Caucasian/white), national origin (Northern
European/Anglo), and reprisal (prior EEO activity) when: (1) on April
16, 1990, he was denied a requested endorsement for an exemption to the
requirements of the Postal Career Executive Service Candidacy program;
(2) on May 16, 1990, he was not selected for the position of Regional
Automation Advisor, EAS-23; (3) on November 29, 1990, he was not selected
for the position of Manager, Logistics and Distribution Systems, EAS-21;
(4) he received a negative evaluation in support of his application
for the position of Manager, Logistics and Distribution Systems; (5)
on January 22, 1993, he was not placed in the position of Manager,
In-Plant Support, EAS-23, or Manager, Distribution Operations, EAS-22;
(6) on April 20, 1993, he was not selected to fill a one-year vacancy for
the position of Manager, Operations, EAS-23; and (7) on June 10, 1993,
and continuing for approximately one month, he was moved from his office
and had no desk, telephone or computer. Following an investigation of
these complaints, the complainant requested an administrative hearing,
but subsequently withdrew that request. The agency thereafter issued
a final decision on December 20, 1994, finding no discrimination with
regard to all seven issues.
The complainant appealed the agency’s decision and the Commission found
the complainant had established that the agency had engaged in a pattern
of discrimination against him.<0> Sobol v. U.S. Postal Service, EEOC
01952039 (May 27, 1997). As relief, the decision ordered the agency
to retroactively place the complainant into the position of Manager,
In-Plant Support, EAS-23, with back pay and other benefits, and conduct
a supplemental investigation on the question of compensatory damages.
Although the agency filed a request to reconsider this decision, it was
denied. Sobol v. U.S. Postal Service, EEOC Request No. 05970909 (March
26, 1998). The complainant thereafter submitted evidence in support of
compensatory damages and the agency issued a decision (FAD) dated July 27,
1998, awarding $9,000 in non-pecuniary damages and no pecuniary damages.
It is from that decision that the complainant now appeals.
Evidence of Injury
The primary piece of evidence submitted by the complainant in support of
his claim is an affidavit dated May 21, 1998. In describing the effects
of the agency’s actions, he testified, in relevant part:
[T]he eight long years in which the Agency discriminated … against
me … caused me damage to my family relationships, degrading and
humiliating loss of self-esteem and self confidence in my abilities, loss
of professional standing among my peers and subordinates, career stalling,
emotional and physical distress, embarrassment, humiliation, defamation
resulting in nausea, severe headaches, difficulty in concentrating,
emotional stress at work, irritability at home, marital strain, loss
of sleep, and the exile and isolation treatment I had to endure from
the Agency.
According to the complainant, his physical problems began in 1989 when
he began working for the individual who became the District Manager
(DM). According to the complainant, the DM’s treatment of him resulted
in stomach aches, nausea, and severe headaches and required him to seek
medical attention. Although the complainant submitted medical records
indicating that he sought treatment for these conditions, they do not
indicate whether there was a relationship between these conditions and
the agency’s actions. In this regard, a review of the documentation
reveals that the individuals who examined the complainant were never
able to determine the etiology of his conditions.
With regard to the strain on his family, the complainant testified that
the agency’s actions not only caused stress with his wife but prevented
him from enjoying fully his relationship with his young daughter.
According to the complainant, this was attributable not only to his
preoccupation with the agency’s actions, but also to the fact that both
his wife and several of the individuals named in the complaint are of
Japanese descent. Regarding his professional standing, the complainant
states that he was particularly devastated by his non-selection for the
Manager, In-Plant Support, position in 1993, noting that it resulted
in him being placed into the position of Senior Operations Analyst.
The complainant states that he had little knowledge of that position,
and that, when he was initially placed in it, he was moved out of his
existing office and forced to work out of a utility cart without a desk,
computer, or telephone. The complainant described this situation as
“professionally humiliating,” stating that it resulted in the loss of
esteem in the eyes of his co-workers. Finally, the complainant states
that the agency’s actions have caused irreparable harm to his career,
arguing that, but for the agency’s discrimination, he would now be in
a Postal Career Executive Service (PCES) position.
The complainant also submitted an affidavit from his wife, who
corroborated his testimony that the agency’s actions placed a strain on
their relationship. She also testified that the complainant experienced
severe headaches, grumpiness, and sleeplessness, noting in particular that
these symptoms were at their worst when he was moved out of his office.
Finally, she stated that “[i]t was common during these periods of extreme
stress for my husband to unintentionally ignore either myself or our
daughter when we were speaking to him because he was so preoccupied with
the acts of discrimination and how they were affecting his career.”
Requested Damages
In his appeal statement, the complainant contends that he is entitled
to at least $200,000 in non-pecuniary damages. In support of this
contention, the complainant argues that the agency’s award of $9,000 is
insufficient and that the cases it cites are not on point. Instead,
the complainant argues that the facts in Carpenter v. Department
of Agriculture, EEOC Appeal No. 01945652 (July 17, 1995) and Wallis
v. U.S. Postal Service, EEOC Appeal No. 01950510 (November 13, 1995)
are more relevant to his situation. The complainant argues further that
he is entitled to an award of $1,000,000 in future pecuniary damages to
compensate him for the salary he would have received had he been placed
into a PCES position. Finally, he argues that he is entitled to past
pecuniary losses to compensate him for the fact that the agency did not
properly calculate his award of back pay and associated benefits.
ANALYSIS AND FINDINGS
Pursuant to § 102(a) of the Civil Rights Act of 1991, a complainant who
establishes his or her claim of unlawful discrimination may receive, in
addition to equitable remedies, compensatory damages for past and future
pecuniary losses (i.e., out of pocket expenses) and non-pecuniary losses
(e.g., pain and suffering, mental anguish). 42 U.S.C. § 1981a(b)(3).
For an employer with more than 500 employees, such as the agency,
the limit of liability for future pecuniary and non-pecuniary damages
is $300,000. Id. In West v. Gibson, 527 U.S. 212 (1999), the Supreme
Court held that Congress afforded the Commission authority to award such
damages in the administrative process.
The particulars of what relief may be awarded, and what proof is
necessary to obtain that relief, are set forth in detail in EEOC
Notice No. N-915.002, Compensatory and Punitive Damages Available Under
Section 102 of the Civil Rights Act of 1991 (July 14, 1992). Briefly
stated, the complainant must submit evidence to show that the agency’s
discriminatory conduct directly or proximately caused the losses for
which damages are sought. Id. at 11-12, 14; Rivera v. Dept. of the
Navy, EEOC Appeal No. 01934157 (July 22, 1994). The amount awarded
should reflect the extent to which the agency’s discriminatory action
directly or proximately caused harm to the complainant and the extent to
which other factors may have played a part. EEOC Notice No. N-915.002
at 11-12. The amount of non-pecuniary damages should also reflect the
nature and severity of the harm to the complainant, and the duration or
expected duration of the harm. Id. at 14.
The Complainant’s Evidence of Injury and Causation
Based on the affidavits given by the complainant and his wife, we find
that the agency’s discrimination caused marital strain, sleeplessness,
professional humiliation and embarrassment, and stress. The Commission
also concludes, however, that the complainant has not established
a connection between the agency’s discrimination and his headaches,
stomach aches, and nausea. Specifically, although the complainant
sought medical treatment for these conditions, no physician who treated
him attributed them to the agency’s actions. The Commission will now
address the complainant’s entitlement to the damages he has requested.
Pecuniary Damages
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, medical expenses, psychiatric expenses, physical
therapy expenses, and other quantifiable out-of-pocket expenses. Id.
As discussed, the complainant requests past pecuniary damages for back
pay and lost benefits, and future pecuniary damages to compensate him
for the fact that the agency’s actions “stalled” his career. Regarding
the former request, the Commission notes that back pay and associated
benefits are not encompassed by an award of compensatory damages,
but, rather, constitute equitable relief under § 706(g) of Title VII.
See Mullins v. U.S. Postal Service, EEOC Appeal No. 01954362 (May 22,
1997).<0> Therefore, we find that the complainant is not entitled to
damages for these amounts.
The complainant’s argument that he is entitled to $1,000,000 in future
pecuniary damages is similarly misplaced. Specifically, this assertion
relates to the complainant’s argument that the agency’s discrimination
kept him out of a PCES position and deprived him of future earnings
at a higher salary. The Commission finds that the loss of future
earnings is not encompassed in an award of compensatory damages, and,
to the extent it is tantamount to a claim for front pay, falls under
the equitable relief provision of § 706(g). See Wilson v. Department
of the Air Force, EEOC Appeal No. 01955269 (July 29, 1997), affirmed,
Wilson v. Department of the Air Force, EEOC Request No. 05970991 (March
18, 1999). Furthermore, the Commission has previously held that an
allegation that an individual would have received a promotion subsequent
to a discriminatory act is speculative, particularly when the promotion
is competitive, and has declined to presume that the individual would
have received the promotion. See Ramirez v. U.S. Postal Service, EEOC
Petition No. 04950024 (February 8, 1996). Accordingly, the Commission
finds that the complainant has not established an entitlement to future
pecuniary damages.
Non-Pecuniary Damages
In Carle v. Department of the Navy, EEOC Appeal No. 01922369 (January 5,
1993), the Commission explained that “objective evidence” of non-pecuniary
damages could include a statement by the complainant explaining how
he or she was affected by the discrimination. Statements from others,
including family members, friends, and health care providers could address
the outward manifestations of the impact of the discrimination on the
complainant. Id. The complainant could also submit documentation
of medical or psychiatric treatment related to the effects of the
discrimination. Id. Non-pecuniary damages must be limited to the sums
necessary to compensate the injured party for the actual harm and should
take into account the severity of the harm and the length of time the
injured party has suffered from the harm. Carpenter v. Department of
Agriculture, EEOC Appeal No. 01945652. The Commission notes that for a
proper award of non-pecuniary damages, the amount of the award should not
be “monstrously excessive” standing alone, should not be the product of
passion or prejudice, and should be consistent with the amount awarded
in similar cases. See Cygnar v. City of Chicago, 865 F.2d 827, 848 (7th
Cir. 1989); US EEOC v. AIC Security Investigations, Ltd., 823 F.Supp. 573,
574 (N.D. Ill. 1993).
As discussed, the complainant argues that his situation is similar
to those experienced by the complainants in Carpenter and Wallis.
In those cases, however, both individuals were diagnosed with mental
and/or physical impairments found to be related to the agency’s
actions.<0> Conversely, the complainant has adduced no medical evidence
that establishes that his various physical and/or mental problems were
related to the agency’s discrimination. Therefore, the Commission finds
that this situation is clearly distinguishable from the ones in Wallis
and Carpenter. At the same time, the Commission notes that medical
evidence is not mandatory to establishing an entitlement to damages,
and the Commission has done so in a number of cases. See Damiano
v. U.S. Postal Service, EEOC Request No. 05980311 (February 28, 1999)
($5,000 in damages based on statements from complainant and co-workers
that the agency’s action left him hurt, angry, and depressed); Miller
v. U.S. Postal Service, EEOC Appeal No. 01956109 (January 23, 1998)
($7,500 in damages based on complainant’s testimony that he experienced
severe stress and anxiety); Benson v. Department of Agriculture,
EEOC Appeal No. 01952854 (June 27, 1996) ($5,000 in damages based on
testimony from complainant, family members, and co-workers regarding
the embarrassment and humiliation he experienced).
Like the complainants in Damiano, Miller, and Benson, the complainant’s
claim for damages is based exclusively on lay evidence attesting to
various problems, including embarrassment, humiliation, stress, marital
strain, and loss of self-esteem. Therefore, we find that the award in
this case should be in the range of the awards in those cases rather than
the awards in Wallis and Carpenter. Furthermore, we note that, although
the discrimination in this case lasted several years, more than half of
the discriminatory events pre-date the passage of the Civil Rights Act
of 1991, and, therefore, are not compensable. Based on the foregoing,
the Commission finds that the agency’s award of $9,000 is appropriate
to compensate the complainant for his losses.
CONCLUSION
For the foregoing reasons and after a careful review of the record,
it is the decision of the Commission to AFFIRM the agency’s award of
$9,000 in compensatory damages.
ORDER
The agency is ORDERED to take the following remedial action to the extent
it has not already done so:
Within sixty (60) days of the date on which this decision becomes final,
the agency shall tender to the complainant non-pecuniary compensatory
damages in the amount of $9,000.
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 evidence that the corrective action
has been implemented.
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 (R0400)
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:
06-21-00
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 Equal Opportunity Assistant
01 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.
02 Although the decision did not delineate which actions the
complainant had established were discriminatory, it indicated that the
finding of discrimination pertained to all the issues raised by the
complainant except for Issue 2.
03 Although the complainant acknowledges that our decision in
Appeal No. 01952039 ordered the agency to award these damages, he argues
that the agency did not comply fully with that order. In the event the
complainant believes that the agency is not in full compliance with
our prior decision, we note he has the right to file a petition for
enforcement with this office. See 29 C.F.R. § 1614.503(a).
03 In Carpenter, the complainant was diagnosed with, among other
things, hypomania and respiratory problems, while the complainant in
Wallis was found to have experienced a relapse of his depressive disorder.
