The person, whose appeal I am quoting from, mentioned medical complaints of pain and suffering, but made no mention that it would be permanent, nor did any of her medical opinions.
3. Non-Pecuniary Damages
Complainant has requested an award of non-pecuniary damages in the
range of $85,000 to $100,000. Complainant’s brief on appeal indicates,
however, that complainant arrived at this range by including injuries
allegedly sustained on account of actions of the agency preceding
the effective date of the CRA 1991, actions of the agency for which no
finding of discrimination was entered in the underlying case (for example,
complainant’s separation from the agency after the events at issue in the
underlying case), and a “presumption that these injuries are permanent
and will continue for the rest of [complainant’s] life,” with her life
expectancy estimated at an additional 29.5 years. As explained above,
however, compensatory damages are payable only with regard to conduct
of the agency which occurred after the effective date of the CRA 1991,
and only with regard to matters where there has been a finding of
discrimination in this case. Further, complainant bears the burden of
proof with regard to the expected duration of her injuries. E.g., Rivera,
EEOC Appeal No. 01934157. She has not submitted evidence to support
a finding that the effects of her injuries will continue indefinitely;
neither has she cited any authority to support her argument that she is
entitled to a presumption that her injuries will continue for the rest of
her life. In addition, complainant requested damages for harm incurred
during the processing of her EEO complaint. Compensatory damages are
not payable, however, for injury attributable to participation in the
EEO process. Wallis, EEOC Appeal No. 01950510.
B. Evidence of Causation
1. Complainant’s statement
Complainant stated that, as a result of the agency’s actions, she
experienced insomnia, memory loss, depression, damage to her sex life,
temporomandibular joint (TMJ) dysfunction, ulcerated colitis, and a
decrease in physical exercise and associated weight gain. Complainant
stated that she was “extremely damaged in [her] ability to earn income”
and experienced “social ostracism” in addition to the damages to her
health. Complainant also requested damages for the agency’s treatment
of her during the processing of her complaint and the damage it caused
to her husband and her marriage.
2. Statements of Other Witnesses
Complainant submitted an April 14, 1996, statement from her husband,
MS, who at the time of the events at issue was also employed by the
agency in the same work area as complainant. MS stated that since
complainant initiated her first EEO complaint in 1991 (WGS-92-001),
“she has suffered a variety of physical and mental problems that I feel
are a direct result of stress from the investigation process and agency
and personnel behavioral patterns that resulted in hostility toward
[complainant] by supervisors, managers, and co-workers.” MS stated that
complainant’s physical symptoms included severe gastrointestinal pains
diagnosed as ulcerative colitis<2> and severe headaches, both of which
curtail her ability to work and to travel.
MS also described changes in complainant’s personality which he had
noticed “since the EEO processes started.” MS stated that before,
complainant was a “generally cheerful, friendly, optimistic person,”
but that she had since experienced periods of severe irritability which
had placed a strain on their marriage; that complainant has problems
sleeping, grinding her teeth and tossing and turning most of the night,
which also disturbs his sleep; and memory loss. MS noted that complainant
experienced “overt hostility” from her coworkers, and felt isolated and
friendless in her work environment.
Complainant also submitted an April 18, 1996, statement from a former
co-worker, RM. RM stated that she has known complainant as a close
friend for more than 25 years, and worked with her from January 1991
until October 1995, when both were separated from the agency in a RIF.
RM noted that she experiences gastrointestinal problems similar to
those experienced by complainant, and that they often discussed their
symptoms. RM stated that in early 1991, complainant was not bothered
by any such problems, but by the end of the year frequently complained
of gastrointestinal pains and bouts of diarrhea, which interfered with
her (complainant’s work) and made it “almost impossible” to go far from
a restroom. RM also stated that she knew of and witnessed complainant
to experience severe headaches which also interfered with her work,
as well as severe allergy attacks which RM thought might have been
aggravated by stress. RM further stated that complainant was spending
long hours at night on the paperwork associated with her EEO complaints,
therefore not getting adequate sleep, which caused her to be over-tired
and further interfered with her work. RM also stated that, starting in
the later part of 1991, the atmosphere in the office changed, in that
colleagues stopped coming by the office she shared with complainant,
and would not acknowledge the two of them in the hallways, although they
would acknowledge RM if she were alone. RM also noted that office staff
members became uncooperative with both of them, and would not offer any
assistance beyond what was absolutely necessary.
3. Medical Evidence
In support of her request for damages, complainant submitted a June 21,
1996, report from Dr. CD, her gastroenterologist. Dr. CD stated that he
had treated complainant since 1988 for chronic symptoms of abdominal pain,
bloating, cramps, intermittent loose stools with mucous, and bleeding.
Dr. CD stated, “This has been diagnosed as irritable bowel syndrome which
bears a direct relationship to the amount of stress under which she has
and continues to labor.” Dr. CD noted that complainant had been treated
with a class of drugs called anticholinergics, but that the treatment
had been stopped on account of side-effects, which included sleepiness
and dry mouth and eyes. Dr. CD further stated:
The primary area of stress in her life has been directly related to her
work experience. This has been the primary aggravating factor over the
course of the last eight years.
… Over the last two years she has continued abdominal pain, bloating,
[and] intermittent diarrhea with mucous as she has had in the past.
Again, this has a direct relationship to her work environment over that
period of time.
Complainant also submitted a July 1, 1996, report from Dr. JG, her
psychotherapist. Dr. JG noted that complainant began treatment with him
in February 1988, at which time her chief concern was marital problems
which had led her and her husband to separate. Dr. JG stated that,
at that time, complainant reported her work situation as being “quite
positive and not a source of significant stress.” Dr. JG noted that over
time complainant’s relationship with her husband “was improved although
there was room for more improvement.” Dr. JG continued:
During and before the time that [complainant] filed her first EEO
complaint she complained of increasing stress at work, and she was
particularly concerned about her physical health in that she had been
diagnosed with ulcerative colitis,<3> a condition which is known to
be exacerbated by emotional stress. Her complaints about her colitis
were frequent. It seemed very likely to me that her stressful situation
at work was contributing to her ulcerative colitis symptoms. Time was
spent in therapy discussing these physical problems and [complainant’s]
frustration at work which put additional stress on the relationship.
In light of the fact that the marital situation was improving and that
[complainant’s] complaints about the stress and frustration at work
were increasing in frequency and intensity, it seems probable to me
that the work situation was a significant factor in [complainant’s]
physical problems.
Complainant further submitted a July 11, 1996, report from her dentist,
Dr. TT. Dr. TT stated that he had treated complainant since 1989,
at which time she already had a four-year history of cranio-mandibular
problems. Dr. TT diagnosed complainant as having Displacement of Disc,
Recurrent; Degenerative Arthritis; Myalgia; and Dislocation of Jaw,
Closed, right side. Dr. TT noted that by December 1994, complainant had
shown improvement with use of an orthotic device, although her condition
had not returned to normal. Dr. TT stated, in relevant part, “As per
patient history, throughout her treatment there were stress complication
factors related to her employment environment which aggravated her
dysfunction and impaired her return to normal function and range of
motion.” Dr. TT noted that complainant returned to him in April 1996
with a decrease in function and an increase in bruxism (clenching and
grinding teeth). He noted that minor clenching and grinding is normal,
but “a person under a lot of stress will clench and grind to a degree
that it can cause tooth wear, tooth loss, bone loss, [and] facial pain,
and exacerbate any condition related to temporomandibular joints.”
