01a13645
08-30-2002
Fouaimalo T. Tuala, Complainant, v. Gordon R. England, Secretary, Department of the Navy, Agency.
Fouaimalo T. Tuala v. Department of the Navy
01A13645
08-30-02
.
Fouaimalo T. Tuala,
Complainant,
v.
Gordon R. England,
Secretary,
Department of the Navy,
Agency.
Appeal No. 01A13645
Agency No. 95-60258-042
DECISION
Fouaimalo T. Tuala (hereinafter referred to as complainant) filed a timely
appeal from the April 12, 2001, final decision of the Department of the
Navy (hereinafter referred to as the agency) concerning her complaint of
unlawful employment 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
timely filed (see 29 C.F.R. � 1614.402(a)) and is accepted in accordance
with 29 C.F.R. � 1614.405.
The issue presented in this appeal is whether the agency properly
determined the amount of compensatory damages. In EEOC Appeal
No. 01976694 (July 24, 2000), the Commission found that the agency
discriminated against petitioner on the bases of race (Asian/Pacific
Islander) and national origin (Samoan) when she was not selected
for the position of EEO Specialist, GS-9 (target 11) in July 1995.
Further, the Commission found that complainant had stated a claim for
compensatory damages and directed the agency, inter alia, to conduct
a supplemental investigation to determine the amount of compensatory
damages due to complainant, if any, and issue a final agency decision.
On September 27, 2000, the agency addressed petitioner and requested
submission of her claim for compensatory damages. The agency's letter
explained the types of such damages and the evidence required in support.
After receipt of petitioner's request for compensatory damages, the
agency issued the final decision at issue herein.<1>
In its final agency decision (FAD), the agency awarded complainant $5,000,
plus interest from July 24, 2000, in nonpecuniary damages. Her claim
sought $300,000 in nonpecuniary damages; her claim did not seek any
actual, pecuniary damages. In her appeal statement, she also claimed
front pay.<2> Initially, we discuss the legal standards for awards of
nonpecuniary compensatory damages and then address complainant's claim
and the agency's award.
Legal Standards for Awards of Compensatory Damages
Section 102(a) of the Civil Rights Act of 1991 (CRA) authorizes awards
of compensatory damages as relief for intentional discrimination in
violation of Title VII and the Rehabilitation Act. 42 U.S.C. � 1981a.
See Enforcement Guidance: Compensatory and Punitive Damages Available
under � 102 of the Civil Rights Act of 1991, No. N 915-002 (July 14,
1992) (Guidance). The Guidance addresses topics of entitlement to
compensatory damages, types of relief available, and evidence or proof
required in support. Compensatory damages are awarded for losses and
suffering due to the discriminatory act of the agency and include past
pecuniary losses, future pecuniary losses, and nonpecuniary losses
that are shown to be directly or proximately caused by the agency's
discriminatory act. Id. at 8; see also Carle v. Department of the Navy,
EEOC Appeal No. 01922369 (January 5, 1993).
It is a complainant's burden to demonstrate, through appropriate
supporting evidence and documentation, the harm suffered as a result of
the agency's discriminatory act; the extent, nature, and severity of
the harm suffered; and the duration or expected duration of the harm.
Rivera v. Department of the Navy, EEOC Appeal No. 01934156 (July 22,
1994), req. to recon. den., EEOC Request No. 05940927 (December 11,
1995); Guidance at 11-12, 14; see also Carpenter v. Department of
Agriculture, EEOC Appeal No. 01945652 (July 17, 1995). Further,
the agency is only responsible for those damages that are shown to be
directly and proximately caused by the agency's discriminatory act.
Carle v. Department of the Navy, supra; Fazekas v. USPS, EEOC Appeal
No. 01954627 (April 7, 1997); see also Johnson v. Department of
Interior, EEOC Appeal No. 01961812 (June 18, 1998). To recover damages,
the complainant must prove that the agency's discriminatory act was the
cause of the loss. Guidance at 8. Objective evidence in support of a
claim for nonpecuniary claims, may include statements from the complainant
and others, including family members, co-workers, medical professionals,
and related medical documentation that give evidence with regard to the
losses and harm experienced.<3> Guidance at 9; Carle v. Department of
the Navy, supra.
Nonpecuniary compensatory damages are available for the intangible
injuries of emotional harm, such as emotional pain, suffering,
inconvenience, mental anguish, and loss of enjoyment of life. While there
are no rules governing amounts to be awarded for nonpecuniary compensatory
damages, the Commission has set forth certain principles. See Sinnott
v. Department of Defense, EEOC Appeal No. 01952872 (September 19, 1996).
An award must be predicated on the harm experienced as a result of
the agency's discriminatory act; the extent, nature, and severity of
the harm suffered; and the duration or expected duration of the harm.
Rivera v. Department of the Navy, supra; Carpenter v. Department of
Agriculture, supra. An award should not be "monstrously excessive"
standing alone, the product of passion or prejudice, or inconsistent
with awards in similar cases. See Cygnar v. City of Chicago, 865 F.2d
827, 848 (7th Cir. 1989); EEOC v. AIC Security Investigations, Ltd., 823
F. Supp. 571, 574 (N.D. Ill. 1993); Guidance at 13-14. The agency is
only responsible for those damages that are clearly shown to be caused
by its discriminatory act. Carle v. Department of the Navy, supra;
Fazekas v. USPS, supra.
Finally, the Commission has held that a complainant may not recover
nonpecuniary compensatory damages for pain or stress associated with
prosecution of an EEO complaint. Rountree v. Department of Agriculture,
EEOC Appeal No. 01941906 (July 7, 1995), aff'd, EEOC Request No. 05950919
(February 15, 1996). Therefore, an award of damages must reflect only
the harm experienced as a direct and proximate result of the agency's
discriminatory act and cannot include relief for harm related to the
EEO process. Olsen v. Department of Defense, EEOC Appeal No. 01956675
(July 29, 1998).
Complainant's Claim for Compensatory Damage<4>
In the matter before us, the Commission found that the agency
discriminated against complainant when she was not selected for the
subject position in July 1995. Complainant's submission of her claim
for nonpecuniary damages consists of her four-page statement dated
December 5, 2001, asserting that (1) she has experienced depression,
anxiety attacks, periods of withdrawal, humiliation, emotional pain
and suffering, injury to her reputation, and loss of health; (2) she
cannot attend group functions, which has affected her job performance;
(3) her husband increased his smoking in 1994 because of her depression
and withdrawal, and he developed lung and brain cancer in 1999 (he died
in October 2001); (4) she began smoking again in 1994, which will cause
future health problems; and (5) she experienced frustration because
of the slowness of the EEO process. In support, she included medical
documents regarding her husband's illness dated in November 2000, and
two documents regarding her nonselection for two EEO-related positions
dated in August 1998 and January 1999.
We find that complainant's submission does not demonstrate her entitlement
to nonpecuniary compensatory damages for more than a restricted amount,
and we affirm the agency's decision. Complainant's submission is much too
general to afford the basis for more than a very limited award. Guidance;
Harmon v. Department of Transportation, EEOC Appeal No. 01950755 (February
2, 1998), citing Erebia v. Chrysler, 772 F.2d 1250, 1259 (6th Cir. 1985).
Having carefully considered the facts of this case and based on the
evidence before us, the Commission finds that the agency's award of
$5,000.00, plus interest, in nonpecuniary compensatory damages is correct.
Complainant's submission does not include any documents or other
objective evidence in support of her claims of harm, other than her
general assertions; she does not identify specific events, nor are
there medical statements or documents from medical professionals or
statements from friends, family, or associates that demonstrate that she
was in any way affected by the agency's selection decision in July 1995.
Also, complainant does not link her alleged injuries to the agency's
discriminatory act, i.e., her nonselection in July 1995, and, instead,
refers to her frustration regarding conversion of her position well prior
to the July 1995 nonselection. Similarly, she cannot assert that the
agency's discriminatory action caused her and her husband to increase
smoking in 1994, since the posting for the subject position took place
in March 1995, and the selection occurred in July 1995. Further, the
Commission does not hold an agency responsible for the harm a complainant
may cause others. See Rountree v. Department of Agriculture, supra.
Finally, a complainant is not entitled to damages for that portion of
one's mental distress caused by participation in the EEO process. Ibid.
Our conclusion is not meant to diminish or dismiss complainant's
suffering; nevertheless, the Commission must limit the award of damages
to the harm caused by the discriminatory action of the agency that is
proven through objective evidence. Here, complainant has not carried
her burden to demonstrate that she experienced more than minimal harm
as a result of the June 1995 nonselection. Where a complainant fails
to establish that her mental and emotional distress were caused by the
agency's discriminatory action, she is not entitled to a significant
award of nonpecuniary compensatory damages for the alleged harm. Leperi
v. Department of Agriculture, EEOC Appeal No. 01964107 (April 2, 1998).
CONCLUSION
Accordingly, the agency's decision was proper and is AFFIRMED. If it
has not already done so, the agency shall issue complainant the amounts
awarded in their final decision.
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 (S0900)
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. 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
___08-30-02_______________
Date
1In EEOC Petition No. 04A00026 (April 11,
2002), we found that the agency had complied with Paragraph (C) of our
Order in EEOC Appeal No. 01976694 to conduct a supplemental investigation
regarding compensatory damages.
2In her appeal statement, complainant also raised matters of compliance
with our Order in EEOC Appeal No. 01976694; matters regarding compliance
were addressed in the Commission's decision in EEOC Petition No. 04A00026
(April 11, 2002).
3Evidence in support of a claim for pecuniary damages would include
documentation showing all actual, out-of-pocket expenses with an
explanation of each expenditure. Id.
4In her appeal, complainant claimed front pay. Front pay is appropriate
in certain limited circumstances. In the matter herein, complainant
is currently working and has not made a timely claim or set out a basis
for an award of front pay.