01A14730
03-08-2002
Hazel H. M. Whitmire, Complainant, v. Dr. James G. Roche, Secretary, Department of the Air Force, Agency.
Hazel H. M. Whitmire v. Department of the Air Force
01A14730
March 8, 2002
.
Hazel H. M. Whitmire,
Complainant,
v.
Dr. James G. Roche,
Secretary,
Department of the Air Force,
Agency.
Appeal No. 01A14730
Agency No. AL999010657
DECISION
Complainant timely initiated an appeal from a final agency decision (FAD)
concerning her claim for compensatory damages. Complainant's claim for
compensatory damages arose out of her 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., and Section 501
of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended,
29 U.S.C. � 791 et seq., filed on December 10, 1998.
Initially, the agency found that complainant was not discriminated
against on any of her claimed bases.<1> The Commission, however,
issued a decision reversing that agency decision and finding that the
agency discriminated against complainant on the basis of reprisal when
she was transferred to a new position on October 1, 1998. See Whitmire v
Depatment of the Air Force, EEOC Appeal No. 01A00340 (September 25, 2000).
Subsequently, complainant was afforded the opportunity to submit a claim
for compensatory damages. After her submission, the agency issued a FAD
on July 20, 2001, finding that complainant failed to prove any economic
or emotional harm. Complainant herein appeals that decision. The appeal
is accepted pursuant to 29 C.F.R. � 1614.405. For the following reasons,
the Commission modifies the agency's final decision.
The facts and background are sufficiently presented in EEOC Appeal
No. 01A00340, and will not be repeated herein. The sole issue before
the Commission is whether the denial of compensatory damages by the
agency was appropriate.
ANALYSIS
When discrimination is found, the agency must provide complainant with
an equitable remedy that constitutes full, make-whole relief to restore
her as nearly as possible to the position she would have occupied absent
the discrimination. See, e.g., Franks v. Bowman Transportation Co., 424
U.S. 747, 764 (1976); Albemarle Paper Co. v. Moody, 422 U.S. 405, 418-19
(1975); and Wan v. United States Postal Service, EEOC Appeal No. 01995204
(July 11, 2001). The Commission recognizes that not all harms done are
amenable to precise quantification; the burden of limiting the remedy,
however, rests with the defendant employer. Smallwood v. United Airlines,
Inc., 728 F.2d 614, 616 n. 5 (4th Cir.), cert. denied, 469 U.S. 832
(1984).
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 1991 CRA), 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. 42 U.S.C. � 1981a(b)(3)(D).
If a complainant alleges that he 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 his
claim. To receive an award of compensatory damages, a complainant must
demonstrate that he or 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 (Guidance).
Further, to receive an award of compensatory damages, the complainant
must establish a nexus between the harm and the discrimination found.
See Jacobs v. Department of the Army, EEOC Appeal No. 01982989 (August
30, 2001).
Complainant demonstrated that she suffered emotional harm as a result
of the discriminatory treatment by the agency. The record indicates
complainant had feelings of indignation, an elevated level of stress,
embarrassment and anger because of the transfer. Complainant, thus,
established that she is entitled to non-pecuniary damages.
The record further indicates, however, that the traumatic feelings
were short-lived. Moreover, the record is devoid of any relevant
information to support a claim of pecuniary damages. Accordingly,
we will only consider what amount of, if any, non-pecuniary damages to
which complainant is entitled.
After a thorough review of the record, including the agency's argument
on appeal and arguments and evidence not specifically addressed in this
decision, and given the duration of distress experienced by complainant,
we find that an award of $1,500 is appropriate. Although complainant
did demonstrate that she experienced emotional harm as a result of
the transfer, the harm was minimal. We point out that non-pecuniary
compensatory damages are designed to remedy a harm and not to punish
the agency for its discriminatory actions. See Memphis Community School
Dist. v. Stachura, 477 U.S. 299, 311-12 (1986) (stating that compensatory
damages determination must be based on the actual harm sustained and
not the facts of the underlying case). The Commission further notes
that this award is not �monstrously excessive� standing alone, is not
be the product of passion or prejudice, and is consistent with the
amount awarded in similar cases. See Ward-Jenkins v. Department of
the Interior, EEOC Appeal No. 01961483 (March 4, 1999) (citing Cygnar
v. City of Chicago, 865 F. 2d 827, 848 (7th Cir. 1989)). Accordingly,
we modify the agency's final decision and order the agency to take
remedial actions in accordance with this decision and order below.
ORDER (C0900)
The agency is ordered to take the following remedial action:
Pay complainant $1,500 in non-pecuniary damages within sixty (60)
days of the date this decision becomes final.
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 supporting documentation verifying
that the corrective action has been implemented.
ATTORNEY'S FEES (H0900)
If complainant has been represented by an attorney (as defined by
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.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0501)
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 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)
(1994 & Supp. IV 1999). If the complainant files a civil action, the
administrative processing of the complaint, including any petition for
enforcement, will be terminated. See 29 C.F.R. � 1614.409.
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 (R0900)
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:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
March 8, 2002
__________________
Date
1 Complainant's original complaint alleged discrimination on the bases
of disability (right arm), and reprisal for prior EEO activity under
Title VII and the Rehabilitation Act.