01A12900
08-22-2002
Teresa Q. McClellan, Complainant, v. Donald H. Rumsfeld, Secretary, Department of Defense, (Defense Logistics Agency), Agency.
Teresa Q. McClellan v. Defense Logistics Agency
01A12900
August 22, 2002
.
Teresa Q. McClellan,
Complainant,
v.
Donald H. Rumsfeld,
Secretary,
Department of Defense,
(Defense Logistics Agency),
Agency.
Appeal No. 01A12900
Agency Nos. DT-96-001 & DT-96-026
DECISION
BACKGROUND
Complainant timely initiated an appeal from the agency's final decision
(FAD2) dated February 22, 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 sex (female) and reprisal for prior EEO activity. The agency
issued its original FAD (FAD1) on January 30, 1998, on the underlying
complaint, finding no discrimination as to issues one through four.
FAD1 additionally found reprisal discrimination as to issues five and
six.<1> Further, FAD1 found that management discriminated against
complainant on the basis of race (Hispanic) on the sole issue in
complaint number DT-96-026.<2> The agency ordered corrective action,
including compensatory damages. Complainant appealed that decision,
and in McClellan v. Defense Logistics Agency, EEOC Appeal No. 01983023
(March 2, 1999), the Commission affirmed FAD1 as to the issues in both
complaints, but ordered the agency to issue a new FAD limited to the
issue of complainant's entitlement to compensatory damages, and required
the processing of a claim for attorney's fees should complainant submit a
fee petition. Complainant submitted a request for compensatory damages,
dated June 26, 2000.
In FAD2, the agency awarded complainant $3,000.00 in non-pecuniary
damages. Complainant requested �$25,000.00, plus fair market interest,
for each incident of discrimination and or retaliation.� See
Complainant's Brief in Support of Appeal, dated April 20, 2001.
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
$3,000.00 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, through her attorney, argues that the agency's award of
non-pecuniary damages inadequately compensates her for the harm that
she suffered. Specifically, complainant argues that her �conditions
worsened with each new action taken by the agency.� See Complainant's
Brief in Support of Appeal, dated April 20, 2001. The agency, argues
that to the contrary, the record is void of evidence that complainant's
symptoms were exacerbated after the discrimination. See Agency Opposition
to Appeal, dated May 24, 2001.
Complainant submitted evidence, through her own statements, that the
agency's discriminatory actions exacerbated her pre-existing mental
condition and physical problems. Complainant's husband, co-workers
and acquaintances corroborated her statements about recent changes in
her physical health, mental health and overall demeanor. Complainant's
husband stated that beginning in May 1995, complainant became despondent,
frustrated, angry, tired, less eager to do things in the evenings,
had headaches, irregularity, diarrhea, sleep problems and a lack of
enthusiasm. See Record of Investigation (ROI), at 55. Complainant's
co-worker added that she noticed, since May 1995, complainant vomiting,
making errors at work and acting paranoid. Id. at 54. Another co-worker
asserted his belief that the �situation at work is the cause of
[complainant's] illness.� ROI, at 59. Complainant's friend commented
that lately complainant's attendance at their spa has decreased and
complainant's demeanor has changed in that she is less happy-go-lucky
and outgoing. Id., at 56-7.
We find that the testimony of complainant, and her witnesses, fails to
clearly indicate that any new symptoms arose following the agency's
discriminatory actions, or that any pre-existing conditions were
exacerbated. This fact weakens, but does not break, the causal connection
between complainant's emotional distress and physical problems, and the
discriminatory actions. In addition, we note that complainant presented
very little medical evidence that her physical and mental problems were
attributable to the agency actions at issue. Although such evidence
is not essential to the recovery of compensatory damages, its absence
may affect the amount of the award. Lawrence v. U.S. Postal Service,
EEOC Appeal No. 01952288 (April 18, 1996).
Based on the record, and taking into account the extent, nature, severity
and duration of the harm suffered, the Commission concludes that the
agency's $3,000.00 award is sufficient to remedy the harm that complainant
alleged. Similar cases with somewhat similar evidence support this award.
See, e.g., Jojola-Jemison v. U.S. Postal Service, EEOC Appeal No. 01970027
(October 8, 1998) ($500.00 award for non-pecuniary damages where the
agency subjected complainant to harassment, which resulted in marital
strain, injury to personal and professional reputation, depression,
sleeplessness, anxiety, loss of self- esteem, and damage to general
health); Hart v. U.S. Postal Service, EEOC Petition No. 04990023 (March
31, 2000) ($1,000.00 award for non-pecuniary damages where the agency
issued complainant a 14-day suspension, which resulted in mental anguish,
loss of enjoyment of life, injury to character, stress, depression,
and humiliation); Cole v. United States Postal Service, EEOC Appeal
No. 01A03115 (July 24, 2002) ($1,250.00 award where the agency issued
complainant a Notice of Removal which was later reduced to a ten-day
suspension for failure to follow safety regulations and instructions).
In so finding, we note that complainant cannot, based on the fact that
she was subjected to three discriminatory incidents, recover three times
for the same physical and mental problems that she experienced.
CONCLUSION
After due deliberation and consistent with the findings above, we conclude
that the $3,000.00 award is adequate to compensate complainant for the
harm that she suffered, and the agency's final decision of February 22,
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 $3,000.00 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 22, 2002
__________________
Date
1 Issue five: On September 5, 1995, because of sex and reprisal
discrimination, complainant was issued a Memorandum for the Record
from her Division Chief, Subject: Disruption and Morale of Workplace.
Issue six: On September 6, 1995, because of reprisal, complainant was
told by the former first-line supervisor to work in another area in
Building 11-C.
2 Issue: On October 24, 1995, because of reprisal, complainant was issued
a Notice of Decision-Reprimand.