01A12574
08-28-2002
Loretta Bad Heart Bull, Complainant, v. Tommy G. Thompson, Secretary, Department of Health and Human Services, Agency.
Loretta Bad Heart Bull v. Department of Health and Human Services
01A12574
August 28, 2002
.
Loretta Bad Heart Bull,
Complainant,
v.
Tommy G. Thompson,
Secretary,
Department of Health and Human Services,
Agency.
Appeal No. 01A12574
Agency No. IHS01398
DECISION
Loretta Bad Heart Bull (complainant) timely initiated an appeal from a
final agency decision (FAD) concerning her entitlement to compensatory
damages incurred as a result of the agency's 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 the Age
Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. �
621 et seq.<1> The appeal is accepted pursuant to 29 C.F.R. 1614.405.
For the following reasons, the agency's final decision is MODIFIED.
On August 1, 2000, the agency determined that it had discriminated against
complainant on the bases of sex (female) and age (52 at the relevant
time) when it downgraded her position of Community Health Director from
GS-1710-13 to GS-1710-12, Education Program Administrator and changed her
duty station from Rapid City, South Dakota to Fort Mead, South Dakota.
The agency awarded various remedial relief, including proven compensatory
damages and advised complainant to submit objective evidence in support
of her claim for compensatory damages.
Subsequently, on January 24, 2001, the agency issued a final decision in
regard to complainant's compensatory damages claim. Therein, the agency
awarded complainant $10,689.90 in past pecuniary damages based on her
claim that due to the discrimination, she was forced to drive 60 miles
a day to get to her new duty station. The agency denied complainant's
request for reimbursement for the purchase of two cars, noting that
she failed to provide objective evidence establishing her entitlement
to such damages. The agency also denied complainant's request for
medical and travel expenses for attending the Living Centered Program,
noting that there was no evidence that complainant's attendance at this
program was related to the agency's discriminatory actions. Finally,
the agency rejected complainant's claim for a new prosthesis, noting
that she failed to provide sufficient objective evidence that this
out-of-pocket loss was caused by the discrimination.
The agency then denied complainant's claim for future pecuniary losses,
noting that she requested such losses based on her non-selection for a
position at the Sioux San Hospital. The agency concluded that complainant
failed to establish a nexus between her non-selection and the agency's
discriminatory actions.
Finally, the agency determined that complainant should be awarded
$15,000.00 in non-pecuniary damages. In so finding, the agency concluded
that some of complainant's depression was caused by events other than
those found to be discriminatory. The agency also noted that some of
the requested damages were related to the filing of the EEO complaint
and that complainant could not recover compensatory damages for stress
associated with the processing of an EEO complaint.
On appeal, complainant contends that the agency failed to properly inform
her that she was required to submit copies of documents such as retail
installment contracts in order to be reimbursed for pecuniary damages.
She also argues that her statements are sufficient to support her
request for damages, noting that she told the agency in December 1999
that her car had "devalued" in the amount of $24,000.00. She argues that
the evidence she provided demonstrates an entitlement to reimbursement
for the purchase of two cars. Similarly, she argues that the record
as a whole establishes that she attended the Living Centered Program
due to the agency's discriminatory actions. She further contends that
the statement of one of her colleagues establishes that her need for a
new prosthesis was due to the weight she lost because of the agency's
discriminatory actions. Complainant reiterates arguments made during
the investigation that she is entitled to future pecuniary damages due
to her non-selection, and, at the very minimum, a non-pecuniary award
in the amount of $100,000.00.
In response, the agency essentially reiterates arguments made in its
FAD and asks that it be affirmed.
ANALYSIS AND FINDINGS
Pursuant to section 102(a) of the Civil Rights Act, a complainant who
establishes 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 Supreme Court has confirmed that the Commission possesses the legal
authority to require federal agencies to pay compensatory damages.
See West v. Gibson, 527 U.S. 212 (1999).
The particulars of what relief may be awarded, and the proof necessary to
obtain that relief, are set forth in detail in Compensatory and Punitive
Damages Available Under Section 102 of the Civil Rights Act of 1991,
EEOC Notice No. N-915.002 (July 14, 1992) (Compensatory Damages Notice).
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. See Damiano v. United States Postal
Service, EEOC Request No. 05980311 (February 26, 1999). The amount
awarded should reflect the extent to which the agency's discriminatory
action directly or proximately caused harm to complainant and the extent
to which other factors may have played a part. See Compensatory Damages
Notice, at 11-12. The amount of non-pecuniary damages should also
reflect the nature and severity of the harm to complainant, and the
duration or expected duration of the harm. Id. at 14. A complainant
is required to provide evidence that will allow an agency to assess the
merits of complainant's request for emotional distress damages. See Carle
v. Department of the Navy, EEOC Appeal No. 01922369 (January 5, 1993).
Evidence of Injury and Causation
Complainant established that she suffered pecuniary and non-pecuniary
damages as a result of the agency's discriminatory actions through
her own testimony, as well as the statements of colleagues. Moreover,
the agency, in finding that complainant is owed compensatory damages,
agreed that there is a causal connection between its discriminatory
actions and at least a portion of complainant's damages.
Calculation of Damages Payable
Past Pecuniary Damages
Mileage
The agency awarded complainant $10, 689.90 in past pecuniary damages
based on its calculation of how many days she was required to drive
to her new duty station in Fort Mead. Although complainant originally
requested $12,090.00 in mileage costs, she did not, on appeal, rebut the
agency's argument that the correct reimbursement per mile is 31 cents,
rather than the 32.5 cents she requested. We therefore find that the
agency awarded the appropriate amount for this cost.
Reimbursement for Purchase of Cars
Complainant argues that she did not submit the appropriate objective
evidence to establish that she purchased two cars due to the agency's
discriminatory action because the agency failed to inform her that she
needed to submit receipts or bills to support these claims. She also
argues that her statements concerning these damages is enough to establish
her entitlement.
Complainant's claim that her statement as to out-of-pocket expenses
is sufficient to establish her entitlement is erroneous. Commission
precedent establishes that in order to establish entitlement to
out-of-pocket expenses, a complainant must provide documentation of
those expenses. See Hogeland v. Department of Agriculture, EEOC Appeal
No. 01976440 (June 14, 1999). Moreover, in the agency's final decision
finding discrimination, the agency informed complainant that in order
to establish her entitlement to compensatory damages, she needed to
provide objective evidence of the damages she incurred. Although the
agency did not describe in detail what evidence should be provided, the
record establishes that complainant had an attorney when she submitted
her claim for compensatory damages and that he had received the agency's
request for objective evidence in support of the claim.
Accordingly, we agree with the agency's conclusion that complainant
failed to provide sufficient evidence to establish that she is
entitled to receive reimbursement for the two cars she purchased.
Although complainant provided, on appeal, a retail installment contract
establishing that she purchased a new car in March 2000 for $36,255.70,
this is new evidence which cannot be considered on appeal inasmuch as
complainant failed to provide persuasive evidence that she was not given
sufficient notice and/or opportunity to submit documentation in support of
her claim to the agency prior to its compensatory damages determination.
Prosthesis
Complainant provided sufficient evidence to establish that the agency's
discriminatory actions led to the necessity of purchasing a new prosthesis
in the amount of $24,369.00. Complainant stated that she was depressed
and nervous due to the agency's discriminatory actions and that she lost
a significant amount of weight. Complainant's colleague, the Acting
Field Health Officer at the Sioux San Hospital (CW), corroborated
this testimony, noting that in the two years following the agency's
discriminatory actions, complainant experienced significant weight loss.
Indeed, in its response to complainant's appeal, the agency acknowledged
that complainant provided sufficient evidence, through the statement
of CW, to show a nexus between the weight loss, the need for a new
prosthesis, and the discrimination. To justify its failure to reimburse
complainant for this expense, the agency argued that complainant failed to
provide a receipt for the prosthesis. A review of the record reveals,
however, that complainant provided an invoice from her Certified
Prosthetist which noted that complainant's significant weight loss as
of December 1999 required her to purchase a new prosthesis and that
the billed amount for this prosthesis was $24,369.00. Complainant is
therefore entitled to the amount of $24,369.00 for this expense.
Living Centered Program
The agency concluded that complainant failed to provide sufficient
evidence to establish that the expenses she incurred due to treatment
sought at the Living Centered Program was related to the agency's
discriminatory actions. While it is true that the letter from the Living
Centered Program does not indicate why complainant sought treatment there
in September 1999, in a statement provided to the agency, complainant
noted that she entered into this program because of mood swings,
withdrawal and other unhealthy emotional behavior she was experiencing.
She notes in this same statement that she suffered from depression,
lack of sleep, nervousness and emotional pain and anguish due to the fact
that the agency stripped her of her position as Community Health Director
and changed her duty station. Although there is also evidence that she
sought treatment due to the stress of dealing with the EEO process and
emotional distress caused by incidents not found to be discriminatory
by the agency or this Commission<2>, complainant has established that
the agency's discriminatory actions partially motivated her to seek
treatment at the Living Centered Program.
The record establishes that complainant paid $1,615.00 to attend the
program between September 3-10, 1999, which included group therapy
workshops, lodging and meals. Based on the evidence provided,
we find that complainant is entitled to reimbursement for half of
this amount--$807.50. Although complainant also submitted separate
receipts from a hotel, she offers no explanation for why she incurred
these expenses, as the documentation from the Living Centered Program
indicates that their fee included lodging and meals. Furthermore,
the record also includes what appears to be a receipt for an airline
ticket, but this receipt has neither a legible date nor a destination
and therefore cannot be used to substantiate complainant's claim for
reimbursement of travel expenses to the Living Centered Program.
Accordingly, we find that complainant is owed a total of $35,866.40 in
past pecuniary damages. In so finding, we note that we have considered
arguments and evidence raised by complainant but not discussed above,
such as her claim for reimbursement of hospital expenses incurred in
February 1999. As complainant provided no documentation of these
expenses, we cannot award her compensation. See Hogeland, supra.
Future Pecuniary Damages
Complainant argues that her non-selection for a position for which she
applied in April 1998 was directly caused by the fact that the agency
had discriminated against her when it downgraded her and changed her
duty station. She argues that the agency failed to provide her with a
job description or any documentation to verify the responsibilities of
the position she was in after her downgrade and change of station and
that she was therefore unable to provide the information necessary to be
considered for a different position. In so arguing, she notes that the
agency's failure to provide evidence of hours worked was a "continuation
of the discrimination" she faced and requests $75,000 in compensation.
We agree with the agency's determination that complainant failed to
establish that any loss she incurred due to her failure to be selected
for the April 1998 position was caused by the actions found to be
discriminatory. Neither the non-selection, nor the alleged failure to
provide complainant with evidence of the hours she worked was found to
be discriminatory. Complainant is only entitled to receive compensatory
damages for damages she incurred due to proven discrimination.
Non-pecuniary Damages
There are no definitive rules governing the amount of non-pecuniary
damages to be awarded. Non-pecuniary damages must be limited, however,
to the sums necessary to compensate the injured party for actual harm,
even where the harm is intangible. The existence, nature, and severity
of emotional harm must be proved. See Compensatory Damages Notice,
at 11. Emotional harm may manifest itself, for example, as anxiety,
stress, depression, marital strain, humiliation, emotional distress,
loss of self esteem, excessive fatigue, or a nervous breakdown. Id.
A proper award should take into account the severity of the harm and the
length of time that the injured party suffered the harm. See Carpenter
v. Department of Agriculture, EEOC Appeal No. 01945652 (July 17, 1995).
Finally, 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 Jackson v. United States Postal Service, EEOC Appeal No. 01972555
(April 15, 1999), citing Cygnar v City of Chicago, 865 F.2d 827, 848
(7th Cir. 1989).
In the case at hand, complainant provided a statement indicating that
the agency's discriminatory actions caused depression, sleeplessness,
loss of weight, nervousness, and emotional strain. She further noted
that it caused her to be unable to manage her home life and rendered her
uncommunicative, hostile and withdrawn, as well as frustrated and angry.
Complainant's statement is corroborated by that of CW, who stated in
December 1999 that in the two years since the agency's discriminatory
conduct, complainant was withdrawn and showed signs of depression, in
addition to suffering a significant weight loss. Another professional
colleague (CW2), a doctor at Sioux San Hospital, stated that he noticed in
the two years since the agency's discriminatory actions that complainant
was depressed and suffered a weight loss. The record establishes,
through the statements of complainant and her colleagues, that complainant
experienced these emotional difficulties for about 2 and � years.
In determining that complainant was entitled to $15,000.00 in
non-pecuniary damages, the agency noted that some of the depression
complainant experienced was due to incidents not found to be
discriminatory, such as lack of communication with her supervisor
subsequent to her change of duty station and stress caused by
participating in the EEO process. The agency also noted that none of
complainant's witnesses provided independent evidence that the emotional
harm complainant suffered was caused by the agency's discriminatory
actions. Finally, the agency noted that the record did not establish
that complainant sought medical treatment of counseling for any of
her emotional distress and therefore concluded that the emotional harm
suffered was not severe.
The agency's position that complainant failed to provide corroboration
of her claim that her emotional distress was caused by the agency's
discriminatory actions is not well-taken. As the agency itself notes
in its response to complainant's appeal, a complainant's own testimony
is sufficient to establish the existence of non-pecuniary losses, as
well as the severity and duration of those losses. See James v. United
States Postal Service, EEOC Appeal No. 01944466 (October 5, 1994).
Furthermore, complainant did provide corroboration of her statement
that her emotional harm was a result of the agency's discrimination.
CW stated that she observed that since the downgrade, complainant showed
signs of depression and had lost a significant amount of weight and
noted that she felt that complainant's poor health was directly related
to complainant's feelings of ineffectiveness in her current assignment.
The agency's reliance on its determination that, because complainant
did not seek medical treatment her emotional distress was not severe is
also misplaced. Complainant provided evidence in the form of her own
statement and the statements of CW and CW2 which establishes that for a
period of 2 � years she experienced a variety of emotional problems due to
the agency's discrimination. CW and CW2 both stated that complainant's
visible distress caused them to urge her to seek professional counseling
and/or medical help. Furthermore, complainant stated that she did seek
help in stabilizing her mental health from a traditional healer, from
whom she received treatment for a period of several months.
Several Commission decisions have awarded compensatory damages in cases
somewhat similar to complainant's. See, e.g., Terrell v. Department
of Housing and Urban Development, EEOC Appeal No. 01961030 (October 25,
1996) ($25,000.00 in non-pecuniary damages where complainant presented
evidence of numerous emotional problems caused to a some extent by the
agency's discrimination and lasting for approximately 18 months); Bernard
v. Department of Veterans Affairs, EEOC Appeal No. 01966961 (July 17,
1998) ($80,000.00 in non-pecuniary damages where complainant, through his
own testimony and the testimony of friends and family presented evidence
that over a five year period he experienced symptoms of depression, as
well as headaches, ringing in his ears, vomiting, raised blood pressure,
grinding of teeth and insomnia due to the agency's discrimination);
Hatton v. United States Postal Service, EEOC Appeal No. 01985377 (June 6,
2000) ($25,000 in non-pecuniary damages based on complainant's testimony
as to emotional injury suffered, manifested by prolonged feelings of
frustration, anger, loss of self-esteem, and betrayal); Holliday
v. Department of Agriculture, EEOC Appeal No. 01A03047 (June 12, 2002)
($50,000 in non-pecuniary damages based on testimony from complainant,
co-workers and family that she suffered emotional stress daily for
14 months).
In determining the amount of non-pecuniary damages to which complainant
in the case at hand is entitled, the Commission has considered that
complainant has suffered from the effects of the discrimination for
approximately 2 and � years. We have considered that these effects have
included depression, sleeplessness, nervousness, anger, and frustration,
among other things, and have interfered with complainant's relationship
with her family, her self-esteem and her physical well-being. We have
also considered that some portion of complainant's emotional distress
stems from incidents not found to be discriminatory or not otherwise
compensable, such as stress caused by the processing of complainant's
EEO complaint. Finally, we take into consideration amounts awarded
in similar cases and the goals of compensatory damages. Based on
these factors, the Commission finds that complainant is entitled to
non-pecuniary damages in the amount of $40,000.00.
ORDER
The agency is ORDERED to take the following remedial action:
Within thirty (30) calendar days of the date that this decision becomes
final, the agency shall issue a check to complainant in the amount of
$75,866.40 for compensatory damages, less any amount already paid.
The agency is further directed to submit a report of compliance,
as provided in the statement below entitled "Implementation of the
Commission's Decision." The report shall include evidence 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
August 28, 2002
Date
1 Compensatory damages and attorney's fees
are not available to a complainant alleging discrimination solely
under the ADEA. See Taylor v. Department of the Army, EEOC Request
No. 05930633 (January 14, 1994). As noted above, the agency determined
that complainant was subjected to age and sex discrimination and she
therefore is entitled to proven compensatory damages under Title VII.
See West v. Gibson, 527 U.S. 212 (1999).
2 Compensatory damages are not available for stress caused by
participating in the EEO
process. See Appleby v. Department of the Army, EEOC Appeal No. 01933897
(March 4, 1994).