This eeoc claim is about non-medical evidence, and how it decreases the value of your EEOC claim. Sally Feser says she submitted medical evidence, but it must have been lost in the mail.
You can learn from this EEOC appeal, how non-medical evidence affects and lowers any compensatory damages that are eventually awarded. This won’t mean much to most of you, because EEOC denies most claims or decides against the complainant. To the lucky few who’s claim is accepted, please get help from a knowledgeable federal employee attorney, submit everything on time, and continue to read civilrights-federal.com.
Sally Feser v. Department of Agriculture
01974440
June 29, 2000
Sally Feser, )
Complainant, )
)
v. ) Appeal No. 01974440
) Agency No. 940412
Daniel R. Glickman, )
Secretary, )
Department of Agriculture, )
Agency. )
______________________________________)
DECISION
INTRODUCTION
Complainant timely initiated an appeal to the Equal Employment Opportunity
Commission (EEOC) from the final agency decision concerning her equal
employment opportunity (EEO) complaint, which alleged discrimination
in violation of Title VII of the Civil Rights Act of 1964, as amended,
42 U.S.C. §2000e et seq. The appeal is accepted by the Commission in
accordance with the provisions of 64 Fed. Reg. 37,644, 37,659 (1999)
(to be codified at 29 C.F.R. § 1614.405).<1>
ISSUE PRESENTED
The issue presented is whether the agency properly determined
complainant’s entitlement to compensatory damages.
BACKGROUND
This is the second appeal in this case. In October 1993, complainant
and the agency entered into a settlement agreement (SA-1) whereby
complainant received a large lump-sum payment to settle an EEO complaint.
In January 1994, the agency issued complainant an IRS Form 1099 indicating
tax liability for the lump-sum payment. Subsequently, complainant
became aware that an agency official had suggested to other employees
that complainant might commit violent acts against agency personnel.
Complainant filed a second EEO complaint alleging that these two actions
were taken in reprisal for her earlier EEO complaint.
On April 12, 1994, complainant and the agency entered into a second
settlement agreement (SA-2) whereby the agency agreed, inter alia,
to pay complainant’s proven compensatory damages, up to $25,000, in
settlement of her second complaint. Complainant submitted evidence in
support of her claim. The agency awarded $1779.64 in pecuniary damages,
but awarded no non-pecuniary damages, noting that complainant had not
submitted medical evidence in support of her claim.
On appeal to the Commission, complainant argued that she had
submitted medical releases to the agency to be used in securing medical
evidence. No documentation was submitted in support of this argument.
The Commission nonetheless found, based on other evidence of record,
that complainant was entitled to an award of non-pecuniary damages in an
amount to be determined on remand. The Order of the Commission directed
the agency, in relevant part, to determine whether complainant had
provided medical releases, and if she had not, to proceed to determine
the amount of non-pecuniary damages to which she was entitled based on
evidence already of record. Sally Feser v. Department of Agriculture,
EEOC Appeal No. 01950533 (July 12, 1996).
The agency thereafter issued a final agency decision in which it noted
that it had been unable to locate any medical releases submitted by
complainant, or any evidence that such releases had been provided.
The agency therefore proceeded to determine complainant’s entitlement
to non-pecuniary damages, awarding complainant $1950. It is from this
decision that complainant now appeals.
ANALYSIS AND FINDINGS
As a preliminary matter, the Commission notes that on the instant appeal,
complainant has requested that the Commission remand the case with
instructions to the agency to obtain medical evidence from complainant
to be used in determining the amount of non-pecuniary damages to which
she is entitled. The Commission finds no basis to remand this matter.
Complainant, who has been represented by counsel throughout these
proceedings, has by now had ample opportunity to supplement the record
with medical evidence — at the time of her first appeal, during the
remand, and on the instant appeal; or, at the very least, to submit
evidence establishing that she had, in fact, provided the agency with
the medical releases necessary for the agency to have obtained medical
evidence on her behalf. Accordingly, the Commission will proceed to
determine the extent of complainant’s entitlement to non-pecuniary
damages based on the present record.
A. Legal Standards for an Award of Compensatory Damages
Pursuant to section 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.
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.
B. Complainant’s Evidence
The evidence bearing on non-pecuniary damages submitted by complainant
consists of statements by complainant and her husband. In her statement,
complainant explained that because the agency issued her an IRS Form
1099 for an award of damages that was not, in fact, taxable, she was
unable to file her income tax return on time. This circumstance caused
her to have to contact her ex-husband, whose tax return would also be
affected, and to have to disclose to him the existence of the first
settlement agreement. Complainant was also required to disclose the
first settlement agreement to an agent of the Internal Revenue Service in
order to obtain advice as to whether the proceeds of the settlement were
taxable. Complainant stated that these events caused her much distress
and inconvenience. She stated that the stress of the situation caused
the return of symptoms she had experienced previously on account of the
agency’s actions, namely depression, headaches, back and neck spasms,
anxiety, and insomnia. Complainant stated that she resumed taking
previously prescribed medication for stress. Complainant further stated
that her irritability and frustration with these matters interfered with
her communication and interaction with her husband and step-children.
With regard to an agency official having suggested that complainant might
engage in violent activity, complainant stated that learning of this
comment caused a recurrence of the “mental abuse, stress, and anguish”
she had suffered as a result of a criminal charge and investigation
which formed the factual basis of her first EEO complaint. Complainant
stated that the agency official’s comment caused her to “relive the
horror that [she] endured as a result of being charged and treated as
a criminal.” Complainant stated that she still had business to conduct
on the agency premises, but that she feared that she might be “set up.”
Complainant identified the on-set of her symptoms as late January 1994,
but did not make any statement regarding the duration of these symptoms.
Complainant’s statements regarding the effects of the agency’s actions
were corroborated by her husband.
C. Calculation of Damages
There are no “hard and fast” rules governing the amount to be awarded.
However, non-pecuniary damages must be limited to the sums necessary
to compensate the injured party for actual harm, even where the
harm is intangible, see Carter v. Duncan-Hogans, Ltd., 727 F.2d 1225
(D.C. Cir. 1994), and should take into account the severity of the harm
and the length of time that the injured party has suffered from the harm.
Carpenter v. Dept. of Agriculture, EEOC Appeal No. 01945652 (July 17,
1995); EEOC Notice No. N 915.002 at 14. In this regard, the Commission
notes that complainant has not provided any information regarding the
duration of the harm. The Commission disagrees with the agency’s position
that any harm of necessity would have ceased as soon as the subject of
the complaint was addressed, that is, as soon as the tax information was
corrected and the agency official in question apologized. Nonetheless,
in the absence of any evidence to the contrary, the Commission finds
that the harm experienced by complainant could reasonably be expected
to have abated shortly thereafter. The Commission further 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).
Several Commission decisions have awarded compensatory damages in cases
similar to complainant’s. Schral v. Dept. of Veterans Affairs, EEOC
Appeal No. 01961614 (December 15, 1999) ($1500 non-pecuniary damages
where complainant presented non-medical evidence that sexual harassment
caused her to become shocked and upset and to have nightmares); Mozell
v. Dept. of the Interior, EEOC Appeal No. 01981521 (August 12, 1999)
($1000 non-pecuniary damages where complainant’s supervisor took steps to
undermine her authority over her subordinates based on sex and reprisal,
and complainant presented non-medical testimony that she became much
more emotional than normal, including becoming irritable and paranoid;
Weatherspoon v. Dept. of Agriculture, EEOC Appeal No. 01966395 (March
4, 1999) ($1000 non-pecuniary damages where complainant was denied a
promotion based on race, and presented non-medical evidence that she
felt humiliated and degraded, and became distrustful and defensive);
Benson v. Dept. of Agriculture, EEOC Appeal No. 01952854 (June 27, 1996)
($5,000 non-pecuniary damages where complainant was denied promotional
opportunities on the bases of race and reprisal, and consequently
experienced stress, skin rashes, withdrawal, and isolation); Lawrence
v. U.S. Postal Service, EEOC Appeal No. 01952288 (April 18, 1996)
($3,000 non-pecuniary damages for sexual harassment where complainant
presented primarily non-medical evidence that she was irritable,
experienced anxiety attacks, and was shunned by her co-workers).
Taking into account the evidence of non-pecuniary damages submitted
by complainant, the Commission finds that complainant is entitled
to non-pecuniary damages in the amount of $2500. This amount takes
into account the severity and the likely duration of the harm done
to complainant by the agency’s actions. The Commission further notes
that this amount meets the goals of not being motivated by passion or
prejudice, not being “monstrously excessive” standing alone, and being
consistent with the amounts awarded in similar cases. See Cygnar,
865 F.2d at 848; AIC Security Investigations, 823 F.Supp. 573 at 574.
Accordingly, the Commission will order the agency to tender non-pecuniary
damages in this amount.
CONCLUSION
Based upon a thorough review of the record, and for the foregoing reasons,
it is the decision of the Equal Employment Opportunity Commission to
MODIFY the final agency decision to reflect that complainant is entitled
to $2500 in non-pecuniary damages.
ORDER
The agency is ORDERED to take the following action:
Within sixty (60) days of the date on which this decision becomes final,
the agency shall tender to complainant non-pecuniary compensatory damages
in the amount of $2500. The agency shall submit a report of compliance,
including proof that such damages have been paid, to the compliance
officer as referenced below.
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).
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)), 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.
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:
June 29, 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 of mailing. I certify that
the decision was mailed to complainant, complainant’s representative
(if applicable), and the agency on:
_________________ __________________________________
Date Equal Opportunity Specialist
1On 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.
