01A12447
08-15-2002
Alethea G. Harris, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, (Southeast Area), Agency.
Alethea G. Harris v. United States Postal Service
01A12447
August 15, 2002
.
Alethea G. Harris,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
(Southeast Area),
Agency.
Appeal No. 01A12447
Agency No. 1H352000798
DECISION
BACKGROUND
Complainant timely initiated an appeal from the agency's final decision
(FAD2) dated January 29, 2001, concerning her claim for compensatory
damages, which stems from her original 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. This appeal is
accepted pursuant to 29 C.F.R. � 1614.405. In the underlying complaint,
complainant alleged she was discriminated against on the basis of her race
(African-American). The agency issued its original FAD (FAD1) on the
underlying complaint, finding no discrimination. Complainant appealed
that decision, and in Harris v. United States Postal Service, EEOC Appeal
No. 01A00284 (March 29, 2000), the Commission reversed FAD1, finding that
complainant had been subjected to discrimination on the basis of her
race when, on March 13, 1998, she was not selected for the Complaints
and Inquiry Clerk position, PS-06. The Commission relief ordered that
the agency consider complainant's claim for compensatory damages.
In FAD2, the agency awarded complainant $3,000 in non-pecuniary damages,
and denied complainant's claim for past or future pecuniary damages.
Complainant had requested $300,000 in compensatory damages for both
pecuniary and non-pecuniary losses.
ANALYSIS AND FINDINGS
In West v. Gibson, 119 S.Ct. 1906 (1999), the Supreme Court held that
Congress afforded the Commission the authority to award compensatory
damages in the administrative process. Section 102(a) of the Civil
Rights Act of 1991 (the CRA 1991), codified as 42 U.S.C. � 1981a,
authorizes an award of compensatory damages as part of the "make whole"
relief for intentional discrimination in violation of Title VII of the
Civil Rights Act of 1964, as amended. Section 1981a(b)(2) indicates
that compensatory damages do not include back pay, interest on back
pay, or any other type of equitable relief authorized by Title VII.
Section 1981a(b)(3) limits the total amount of compensatory damages
that may be awarded to 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 persons employed by the respondent employer. The limit for
an employer with more than 500 employees, such as the agency herein,
is $300,000.00. 42 U.S.C. � 1981a(b)(3)(D).
If a complainant alleges that she is entitled to compensatory damages
and the agency or Commission enters a finding of discrimination, the
complainant is given an opportunity to submit evidence establishing
her claim. To receive an award of compensatory damages, a complainant
must demonstrate that 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.
Compensatory damages may be awarded for the past pecuniary losses,
future pecuniary losses, and non-pecuniary losses which are directly or
proximately caused by the agency's discriminatory conduct. Compensatory
and Punitive Damages Available Under Section 102 of the Civil Rights Act
of 1991, EEOC Notice No. 915.002 (July 14, 1992), at 8. 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. Past pecuniary losses
are the pecuniary losses that are incurred prior to the resolution of
a complaint via a finding of discrimination, an offer of full relief,
or a voluntary settlement. Id. at 8-9.
A compensatory damages award should fully compensate a complainant for
the harm caused by the agency's discriminatory action even if the harm
is intangible. Id. at 13. Thus, a compensatory damages award should
reimburse a complainant for proven pecuniary losses, future pecuniary
losses, and non-pecuniary losses. A complainant has a duty to mitigate
his or her pecuniary damages. Id. at 9. If a respondent can prove that
a complainant failed to mitigate pecuniary damages, the award should
be reduced to reflect all losses that could have been avoided by the
exercise of reasonable diligence. Id. at 9-10.
Initially, we note that the agency has already awarded complainant
$3,000 in non-pecuniary damages. By doing so, the agency has
conceded that complainant established a nexus between the harm she
sustained and the discriminatory actions of the agency. See Leatherman
v. Department of the Navy, EEOC Appeal No. 01A12222 (December 14, 2001).
As we stated above, to receive an award of compensatory damages, a
complainant must demonstrate that she has been harmed as a result of
the agency's discriminatory action. 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. Further, and
also previously noted, compensatory damages may be awarded for the past
pecuniary losses, future pecuniary losses, and non-pecuniary losses which
are directly or proximately caused by the agency's discriminatory conduct.
Compensatory and Punitive Damages Available Under Section 102 of the
Civil Rights Act of 1991, EEOC Notice No. 915.002 (July 14, 1992),
at 8. Thus, once the issue of a nexus between the discriminatory
act and the harm sustained has been established, or conceded, as is
the case herein, the agency is responsible for all the harm suffered.
The harm suffered by the complainant herein must be justly compensated,
with consideration given to how much previous complainants have been
awarded by the Commission, where the severity and duration of the harm
suffered is similar to the facts of the instant action.
Complainant argues that the agency's award of compensatory damages
inadequately compensates her for the harm that she suffered, and
claims that a total award of $300,000 will better compensate her.
Specifically, complainant explains that she suffered in the position
she was left to hold.<1> Complainant also requests reimbursement for a
vacation which she cancelled, while in the position she was left to hold,
due to her fear that REC would close. Additionally, complainant states
that the nonselection caused her to put her house projects on hold.
We find that complainant has failed to show that the $3,000 award is
inadequate to compensate her for the harm that she suffered as a result
of the agency's discriminatory action. Complainant also contends that
the agency's award was inadequate because she missed a chance to buy
a vehicle or a house. Complainant explains that she would have been
in a better financial position if she had not been discriminatorily
denied this position. We concur, however, with the agency's finding
that this claim is speculative at best. See Rector v. General Services
Administration, EEOC Appeal No. 01983769 (August 30, 1999) (complainant's
claim that she would have stayed at the agency for three more years had
she not been discriminatorily denied a promotion was pure speculation).
Complainant also claims damages for the stress and frustration that
she experienced as a result of participating in a mediation session,
related to this complaint, on May 19, 1998. Complainant is not entitled
to compensatory damages, however, on account of any injury incurred by her
in the course of prosecuting the EEO complaint. See Pailin v. Department
of Defense (Defense Logistics Agency), EEOC Appeal No. 01954350 (January
26, 1998).<2>
CONCLUSION
After due deliberation and consistent with the findings above, we conclude
that the $3,000 award is adequate to compensate complainant for the harm
that she suffered, and the agency's final decision of January 29, 2001,
is hereby AFFIRMED.
ORDER
The agency is ordered, to the extent that it has not already done so,
to pay complainant a total of $3,000 for compensatory damages, within
twenty (20) calendar days of the date this decision becomes final.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
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 (T0900)
This decision affirms the agency's final decision/action in part, but it
also requires the agency to continue its administrative processing of a
portion of your complaint. You have the right to file a civil action in
an appropriate United States District Court within ninety (90) calendar
days from the date that you receive this decision on both that portion
of your complaint which the Commission has affirmed and that portion
of the complaint which has been remanded for continued administrative
processing. 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 your appeal with the Commission, until
such time as the agency issues its final decision on your complaint.
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. If you file
a request to reconsider and also file a civil action, 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
August 15, 2002
__________________
Date
1 Specifically, complainant contends that in the position she was left to
hold, she was ignored, pressured and unfairly accused by her supervisors,
she suffered from fear that the REC site would close, she had problems
with worsening acid reflux, and she incurred a back injury.
2 On appeal, complainant requests pay for hours worked outside of
the schedule she would have had if she had received her promotion.
Complainant additionally requests that certain annual leave be
restored. These claims for equitable relief have been addressed in Harris
v. United States Postal Service, EEOC Request No. 06A00868 (February
21, 2001). Complainant additionally asserts that the pay scale that was
effective in 1998 differs from the current pay scale, in that with the
old scale her pay would have be higher. Complainant contends that her
current pay should be reflective of the old pay schedule. Complainant
should contact her Compliance Officer in reference to this matter.