The DIGEST Of Equal Employment Opportunity Law

Volume XVI, No. 1

Office of Federal Operations

Winter Quarter 2005

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Inside

Selected EEOC Decisions on:

Article

Compensatory Damages in the Federal Sector: An Overview

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SELECTED EEOC DECISIONS

Abandonment of Claim

Failure to Pursue Claim Three Years After EEO Contact Held to Be Abandonment of Claim. Complainant initially contacted the EEO Office in December 2000. She did not again initiate contact with an EEO Counselor until October 2003. In the interim, complainant failed to complete and return pre-complaint documents the agency had sent to her. The agency also attempted to inform complainant, via certified return receipt mail, that her request for EEO counseling would be closed if she did not contact the agency within 15 days. The mailing went unclaimed. Invoking the doctrine of laches, the Commission found that complainant's failure to act with due diligence or justify her delay in pursuing her claim was tantamount to abandonment of the claim. Brown v. United States Postal Service, EEOC Appeal No. 01A42435 (June 15, 2004).

Attorney's Fees

Across-the-Board Percentage Reduction in Attorney's Fees Not Warranted. The Commission noted that, while complainant prevailed on only one claim, the issues in the underlying complaint concerned a pattern of harassment and were not easily separated. In addition, the witnesses who testified were relevant to all claims and the same management officials were involved in each claim. Thus, the work performed by the attorney on the successful claim was not so distinct as to be easily separable from work performed on the unsuccessful claims. Paquette v. Department of Veterans Affairs, EEOC Appeal No. 01A43243 (August 18, 2004).

Reduction in Attorney's Fees Warranted. EEOC found that the number of hours claimed by complainant's attorney was properly reduced by half. The Commission noted that the attorney had submitted only a one-page fee petition, which did not contain dates for the claimed items and provided only scant detail about the services performed. Further, there were no sufficiently detailed contemporaneous time records submitted. Offley v. United States Postal Service, EEOC Appeal No. 01A43018 (August 25, 2004).

Back Pay

Interest on Back Pay Available for Employee of AAFES. The Commission found that employees of the Army and Air Force Exchange Service (AAFES) are entitled to receive interest on back pay awards. Petitioner had been awarded back pay with interest in a prior Commission decision. In addressing a petition for enforcement, EEOC rejected the agency's argument that it was exempt from paying interest on an award of back pay because of sovereign immunity. The Commission noted that the Civil Rights Act of 1991 expressly waived the Federal government's sovereign immunity regarding the payment of interest for delay on monetary awards to victims of employment discrimination. Carmon-Coleman v. Department of Defense, EEOC Petition No. 04A30030 (October 20, 2004).

Agency Ordered to Recalculate Back Pay. After finding discrimination, an EEOC Administrative Judge (AJ) ordered the agency to provide complainant with back pay. The agency determined that no back pay was due. On appeal, the Commission noted that the appropriate statutory language provides that, in computing back pay, the agency must make certain offsets in a specified order that must first include outside earnings such as workers' compensation payments. EEOC stated that the record reflected that the agency simply made all of the deductions and offsets in toto and did not follow the proper order of deductions and offsets. The Commission instructed the agency to recalculate complainant's back pay as described in 5 U.S.C. § 550.805(e). Cox v. United States Postal Service, EEOC Appeal No. 01A42102 (September 21, 2004).

Class Complaints

Class Certification Denied. The complaint raised various issues concerning the failure to provide interpreters for the hearing impaired at an agency facility. The Commission found that the complainant failed to meet the numerosity requirement because there were only 14 individuals who could be considered for class membership. EEOC also noted that there was no evidence that complainant had retained counsel to meet the requirement of adequate representation. Yost v. United States Postal Service, EEOC Appeal No. 07A30017 (October 14, 2004).

Class Certification Granted. The Commission found that the class complaint alleging that Hispanic employees were not retained in or promoted to management positions, during a 1994 reorganization, met the requirements for certification. EEOC noted that the class agent cited a pattern and practice of failure to promote class members and denial of promotional opportunities to management positions, which involved common questions of fact and was typical of the 489 putative class members. The Commission rejected the argument that the complaint should be dismissed pursuant to the Supreme Court's decision in National Railroad Passenger Corp. v. Morgan. The Commission stated that Morgan, while not addressing the timely-filing question with regard to pattern and practice cases, noted that such claims are like hostile work environment claims in that they involved repeated conduct. Tarrats and Rivera, et al. v. Federal Deposit Insurance Corp., EEOC Appeal No. 01A41422 (November 15, 2004).

Compensatory Damages

Harassment Results in $200,000.00 Award of Non- Pecuniary Compensatory Damages. Following a hearing, the agency adopted an EEOC AJ finding of discrimination on the bases of religion (Jewish), race (Caucasian) and reprisal. Complainant, a Clinical Pharmacist, had been removed from her speciality clinic and isolated from doctors and co- workers who did not want to associate with her due to negative comments made by her supervisors. Complainant was treated like a pariah and felt isolated, humiliated, and depressed due to the loss of professional relationships and career opportunities. Complainant experienced an increase in frequency and duration of her migraine headaches, which her physician attributed to work- related stress. The Commission noted that there was no evidence that complainant's migraines would have worsened absent the discrimination. In addition, complainant was diagnosed with intestinal distress consistent with Irritable Bowel Syndrome (IBS). She also suffered an irritational fibroma, which had to be surgically removed, and which had been caused by complainant's biting her cheek due to stress. Complainant's symptoms persisted for five years. In addition to medical evidence, complainant submitted statements from co-workers describing the effects of the discrimination. There was no evidence that any outside factors contributed to complainant's distress. Glockner v. Department of Veterans Affairs, EEOC Appeal No. 07A30105 (September 23, 2004).

Disparate Impact

Disparate Impact Discrimination Not Shown in Agency's Relocation Decision. The complainant in this case established a prima facie case of disparate impact on her protected class (African- American) when an agency relocation resulted in a reduction of African-American employees from more than 50% to 6%. The agency then had the burden of proving that its relocation was based on a legitimate business purpose. The agency showed that Congress, through the Dire Emergency Appropriations Act, made funding available to fully automate the agency's identification division at a new facility in an area where employee turnover would not constitute a significant problem. Noting this reason, and observing that the agency followed established procedures in choosing the location, the Commission found that the agency had met its burden of proof. Complainant failed to submit any evidence that an alternative method would have served the agency's purpose of automating the division without the undesirable racial effect. Mells v. Department of Justice, EEOC Request No. 05A20763 (September 14, 2004).

Failure to Cooperate

Complainant's Failure to Respond Results in Dismissal of Complaint. The Commission found proper the agency's dismissal for failure to cooperate with regard to complainant's claim that he was denied the opportunity to take advantage of an Education Fund. By letter, the agency requested detailed information to clarify complainant's claim and informed him that failure to respond within 15 days would lead to dismissal of his complaint. Complainant failed to respond. The agency then issued a Notice of Proposed Dismissal, allowing him an additional 15 days to respond. Complainant again failed to respond to the agency's Notice. The agency then dismissed the complaint for failure to prosecute. Wilson v. United States Postal Service, EEOC Appeal No. 01A45259 (November 1, 2004).

Findings of Discrimination

Under the Rehabilitation Act

Diabetic Improperly Denied Overseas Duty. The Commission found that complainant was subjected to disability discrimination when he was denied an overseas temporary duty assignment. Complainant, who had insulin dependent diabetes, had volunteered for a 60-day assignment overseas. Complainant had no job restrictions or limitations due to his condition. Nevertheless, an agency physician found that complainant was medically disqualified for overseas assignments. EEOC initially found that complainant, who was required to eat small meals throughout the day in accordance with insulin therapy, was substantially limited in the major life activity of eating. Further, complainant, who did not have any physical restrictions, was qualified for the position. The Commission noted that, while the agency considered complainant to be a direct threat to himself, that determination was speculative and not based upon specific information regarding the individual's work and medical histories. The agency did not present any evidence that would show why complainant would be prevented from continuing his treatment while working overseas. In addition, complainant's medical and work history rebutted the assumption of a significant risk of harm to complainant. The Commission concluded that the agency's use of generalized statistics was not necessarily applicable to complainant, and the conjecture regarding the possibility of illness was too remote to be considered a direct threat. As part of the remedies awarded, the Commission ordered the agency to offer complainant the next available TDY assignment and investigate complainant's entitlement to compensatory damages. Lewis v. Department of Defense, EEOC Appeal No. 01A24984 (August 10, 2004).

Improper Denial of Reasonable Accommodation. Complainant, who was hearing impaired, was unlawfully denied an interpreter during a service talk about anthrax and when he was questioned by local police and agency Inspectors. While the agency asserted that the events occurred during "unusual" and "emergency" circumstances, the Commission nevertheless found that the failure to provide an interpreter violated the Rehabilitation Act. EEOC noted that the agency cannot avoid its obligation to provide accommodation simply because of scheduling difficulties and that it was important for complainant to have access to the information, given the extraordinary circumstances involving the safety of complainant and his co- workers. The agency was ordered to provide complainant and all hearing-impaired employees with a qualified interpreter at work-related activities and meetings and to conduct appropriate training for management officials. Kelly v. United States Postal Service, EEOC Appeal No. 01A42499 (August 30, 2004), request for reconsideration denied, EEOC Request No. 05A50118 (November 18, 2004). And see Leos v. United States Postal Service, EEOC Appeal No. 07A40017 (September 27, 2004) (deaf complainant prevailed on four claims of disability discrimination, including the agency's failure to provide him with an interpreter during training and safety meetings, and was awarded $50,000.00 in non-pecuniary compensatory damages for, inter alia, management's condonation of public humiliation of complainant in the form of disparaging jokes and remarks about his intelligence and deafness). See also, Barthle v. United States Postal Service, EEOC Appeal No. 07A40080 (September 29, 2004) (failure to provide hearing-impaired complainant with interpreter while investigating an altercation between complainant and another co- worker).

Long-Time Denial of Parking Space for Disabled Employee Violated Rehabilitation Act. The Commission found that complainant was discriminated against when she was denied a parking space for approximately five years. Complainant, who had been diagnosed with pulmonary emboli and hypertension, required the use of oxygen during the day. The Commission noted that, even with an oxygen tank, complainant's ability to breathe was significantly restricted. Complainant requested accommodation from the Division Chief when she noticed a vacant disabled-parking space. The Commission noted that the Division Chief's failure to take any action on her accommodation request caused an undue delay in providing complainant with a reasonable accommodation. The agency was ordered to consider complainant's claim for damages, and conduct training for the Division Chief. Wheeler v. Department of the Army, EEOC Appeal No. 01A30318 (September 30, 2004).

Under Title VII

Racial Harassment. The Commission found that complainant was subject to racial harassment when a co-worker made racially-charged comments. Although made on one day, the nature of the comments was sufficiently severe to render complainant's work environment hostile. Nevertheless, the agency was able to avoid liability for the employee's actions. The Commission found that the agency took prompt and appropriate remedial action to end the harassment once it was reported. Specifically, management immediately moved the individual away from complainant's work area and counseled him about his conduct. In addition, the agency subsequently issued two letters to the employee barring him from any contact with complainant. The agency also disciplined the employee by issuing a letter of warning after an agency investigation of the matter. Finally, there as no evidence that the conduct recurred after management took the actions cited. Nicholas v. Department of Agriculture, EEOC Appeal No. 01A43603 (November 4, 2004).

Racial Harassment. The Commission found that the agency was aware of the hostile work environment created by complainants' co-workers with regard to racially-offensive memoranda posted on the bulletin board and in mailboxes, referring to each of the complainants and two other African-American employees. EEOC found that the agency failed to take prompt, effective remedial action to end the harassment. As part of the relief awarded, the Commission ordered the agency to pay the complainants a total of $35,000.00 in non-pecuniary compensatory damages and consider taking discipline against the responsible management officials. Bryant and Kelly v. Department of Justice (Bureau of Prisons), EEOC Appeal Nos. 07A40098 and 07A40108 (October 5, 2004).

Sex-Based Harassment. Complainant, an Air Traffic Control Specialist, claimed that she was harassed when a fellow controller attempted to disrupt her aircraft by intentionally directing a large jet to descend directly behind her private aircraft; tampons were scattered in her locker; she was reassigned from New Jersey to New York; and she received a threatening letter at work containing obscene and sexist language. The Commission found that the complainant was subjected to sex- based harassment and that the incidents were sufficiently severe or pervasive to create a hostile work environment. EEOC found that the agency failed to prove that it took appropriate corrective action, beyond conducting an inconclusive investigation and reassigning complainant, given the severity of the harassment. The Commission stated that, generally, sufficient corrective action includes imposing discipline, posting notices, providing relevant training, taking proactive measures to prevent future incidents of harassment, and reminding employees of their obligations under the laws regarding discrimination. The Commission ordered the agency to give complainant a notice of her right to submit evidence in support of her claim for compensatory damages and attorney's fees and costs. The agency was also ordered to conduct training for all management officials involved in this case with regard to their obligations under Title VII, with special emphasis on harassment. Boyer v. Department of Transportation (Federal Aviation Administration), EEOC Appeal No. 01A24440 (August 24, 2004).

Sexual Harassment. The Commission found that complainant was subjected to sexual harassment by his supervisor, creating a hostile work environment. Complainant's supervisor exposed herself to him on two occasions and brandished a sex toy in a bag on a third occasion. The Commission rejected the agency's argument that the three incidents described by complainant were isolated events. Corroborating statements from co- workers and an internal agency report showed that the atmosphere at the facility was permeated with talk about sex and other inappropriate matters such that the three incidents, which occurred over a period of seven months, rose to the level of illegal harassment. Further, the Commission found the agency liable when it did not take action for at least four months after learning of the harassment and left the supervisor in place for a full year. By way of remedies, the Commission remanded the issue of compensatory damages and consideration of appropriate disciplinary action against the supervisor. Pohlel v. United States Postal Service, EEOC Appeal No. 01A40343 (September 21, 2004), request for reconsideration denied, EEOC Request No. 05A50136 (November 18, 2004).

Sexual Harassment. Complainant alleged that her supervisor made unwelcome advances on several occasions. She informed the Supervisor of Distribution Operations (SDO) of her supervisor's conduct on a Friday. SDO did not act until Monday because he did not think that complainant and her supervisor would have contact due to their work schedules. The supervisor, however, came to work on Sunday, his day off. On that day, complainant reported to SDO that her supervisor grabbed and kissed her again. An EEOC AJ determined that the agency should not have delayed in separating the supervisor from complainant. The Commission affirmed the AJ and ordered the agency to ensure that complainant and her supervisor not have any further contact, consider disciplining the supervisor and the SDO, and ordered the agency to pay complainant approximately $23,000.00 in attorney's fees, $10,000.00 in non-pecuniary compensatory damages, approximately $1,300.00 in past pecuniary damages, and $550.00 in future pecuniary damages. Bui v. United States Postal Service, EEOC Appeal No. 07A40002 (September 29, 2004).

Retaliation

Direct Evidence of Retaliation. Complainant contacted an EEO Counselor, alleging discrimination with regard to the agency's failure to promote him. At that time, complainant's supervisor informed him, orally and in his performance appraisal, that complainant's dissatisfaction with his pay and promotion was affecting his performance and that the supervisor would have to disclose to prospective employers the fact that complainant almost filed a grievance with the agency. The Commission found that the supervisor's statement was meant to punish complainant for contacting the EEO Counselor and constituted direct evidence of retaliation. The Commission noted that the supervisor's statements were reasonably likely to deter complainant or others from engaging in protected activity. As part of the remedies awarded, EEOC ordered the agency to pay complainant $5,000.00 in non- pecuniary damages and a total of approximately $27,000.00 in attorney's fees. Jackson v. Department of the Interior, EEOC Appeal No. 07A30126 (September 28, 2004).

Retaliation in Reassignment. The Commission found that complainant was subject to retaliation when he was involuntarily reassigned to another facility. The Commission concluded that the agency's explanation for the action, that it was attempting to find a position within complainant's physical restrictions, was a pretext for prohibited discrimination. Specifically, the record showed that complainant had been working within his restrictions at the prior facility for months when the agency decided to reassign him a mere three weeks after learning that he had filed an EEO complaint. EEOC noted that the reassignment was likely to deter complainant from engaging in protected activity. The Commission directed the agency to investigate complainant's entitlement to compensatory damages and return him to his prior facility within his medical restrictions. Greenridge v. United States Postal Service, EEOC Appeal No. 01A42155 (August 30, 2004), request for reconsideration denied, EEOC Request No. 05A50037 (October 28, 2004).

Retaliation: Hostile Environment. EEOC found that complainant was subjected to a hostile work environment due to his prior EEO activity. The Commission noted that, after complainant filed an EEO complaint, the responsible management official (RMO), asked him if he was "starting trouble again," and that complainant had been warned that the official had a problem with employees who filed complaints. Evidence also showed that the RMO stated that he wanted complainant suspended when he returned from sick leave. The Commission concluded that there was sufficient evidence to demonstrate that complainant's treatment by the official and other individuals was related at least in part to his prior EEO activity. The Commission ordered the agency to investigate complainant's claim to compensatory damages and to consider disciplining the RMO involved. Waring v. United States Postal Service, EEOC Appeal No. 01A31209 (August 18, 2004).

Retaliation in Termination. The Commission found that complainant was terminated from his position as Case Manager, GS-11, in retaliation for his prior EEO activity. EEOC rejected the agency's contentions that complainant was terminated for legitimate, nondiscriminatory reasons, and ordered him reinstated with back pay without the requirement to serve an additional probationary period for the position at issue. EEOC also ordered expungement of any reference in complainant's personnel records to his termination and directed the agency to consider disciplining those involved in the discrimination. Drennon-Gala v. Department of Justice (Bureau of Prisons), EEOC Request No. 05A40941 (September 23, 2004).

Grievances

Union's Right to File Grievance Does Not Extinguish Employee's Right. The Commission found that the underlying EEO complaint, regarding complainant's detail to another division, was not subject to dismissal on the grounds that complainant had filed a grievance. The union had filed a grievance, following complainant's reassignment, due to concerns that the action violated the collective bargaining agreement (CBA). The grievance was presented by the union based on its concerns related to the treatment of all employees. EEOC noted that an agency cannot deny a complainant the right to file an EEO complaint because the union has exercised its right to file its own grievance pursuant to the terms of the CBA. There was no evidence that complainant was involved in the filing of the grievance. Therefore, he did not elect to pursue his claim in that forum. Battu v. Department of Veterans Affairs, EEOC Appeal No. 01A44033 (September 28, 2004).

Jurisdiction

Failure to Raise Claim of Discrimination in Grievance Deprives Commission of Jurisdiction. Pursuant to 29 C.F.R. Section 1614.401(d), a grievant may appeal a decision of the agency, the arbitrator, or the Federal Labor Relations Authority (FLRA) on a grievance when an issue of employment discrimination was raised in the negotiated grievance process where the procedure permits such issues to be raised. In this case, involving an allegedly invalid annual appraisal, the Commission lacked jurisdiction because complainant did not raise a claim of prohibited discrimination in her grievance. Accordingly, EEOC dismissed her appeal. Smith v. Department of the Treasury, EEOC Appeal No. 02A30018 (November 1, 2004).

Religious Accommodation

Good Faith Effort Made to Accommodate Complainant. Complainant was a member of the Religious Society of Friends and celebrated his Sabbath on Sundays. The Commission found that the agency made a good faith effort to accommodate complainant's religion when it allowed him to use annual leave, sick leave, leave without pay, or compensatory time when staffing permitted. Nevertheless, there were times when complainant was required to work on Sunday mornings, such as when other employees had requested annual leave prior to complainant and there was insufficient coverage. EEOC noted that, for the agency to accommodate complainant in those circumstances, it would have been required to remove an individual who was already on annual leave or violate the collective bargaining agreement (CBA) by granting complainant a permanent preference for Sunday leave requests, which it was not required to do. Further, the agency was unable to switch complainant to a schedule with Sunday as his permanent day off, because the CBA specified that days off were rotated according to seniority. Cosgrove v. Department of the Interior, EEOC Appeal No. 01A34768 (August 25, 2004).

Remedies

Reinstatement Not Appropriate Where Complainant Retired for Personal Reasons. Complainant, who was employed at the agency's Tupelo, Mississippi, facility as a Hearing Office Director, alleged discrimination on the bases of age and sex when he was denied reassignment to a position in Florida to be closer to his critically-ill mother who lived in Florida. An AJ found that complainant was discriminated against with regard to three vacancies in Tampa and Orlando. Specifically, the selectees were all substantially younger than complainant and complainant was well qualified for the positions. Further, the AJ found that agency failed to articulate any legitimate nondiscriminatory reason for the nonselections. As relief, the AJ noted that complainant was not entitled to compensatory damages or attorney's fees under the Age Discrimination in Employment Act (ADEA). The AJ also determined that complainant was not entitled to any financial losses related to his resignation, but was entitled to be reinstated to his Hearing Officer Director's position. On appeal, the Commission upheld the AJ's decision with the exception of the reinstatement order. EEOC stated that it is well settled that an agency is not required to reinstate an employee as part of make-whole relief where the employee has retired in the interim, and there has been no finding of constructive discharge. The Commission found that complainant retired for personal reasons to be near his mother. Although complainant may not have chosen to retire had he been reassigned, the Commission found that it could not be said that he retired from the agency due to intolerable working conditions. Amos v. Social Security Administration, EEOC Appeal No. 07A40085 (September 23, 2004).

Settlement Agreements

No Meeting of the Minds. The parties entered into a settlement agreement which included several provisions concerning how the parties would handle time cards. In addition, the agreement provided that: "If an agreement cannot be reached after the review of the time cards [complainant] will or may proceed with any other EEOC procedure he desires." The Commission found that such a provision meant there was no meeting of the minds and was thus an illusory agreement. Thus, it was proper for the agency to reinstate the underlying complaint rather than order specific performance. Faesser v. United States Postal Service, EEOC Appeal No. 01A41256 (October 22, 2004).

Oral Agreement Entered Into and Transcribed at Hearing Valid. The parties entered into a settlement agreement during a hearing before an AJ. Two days later, the agency drafted a written agreement, which complainant refused to sign due to a provision concerning the withdrawal of a pending action under the Federal Tort Claims Act. The Commission found that the parties had entered into a valid settlement agreement, the terms of which were set forth in the hearing transcript, and that the agency's subsequent draft was not executed and had no legal force or effect in the case. Further, the agreement set forth in the transcript referred only to complainant's EEO complaints and claims and did not obligate her to withdraw other claims outside the purview of the EEO process. Clark v. Department of Veterans Affairs, EEOC Appeal No. 01A44177 (November 10, 2004).

Provision Void, But Not Agreement, For Lack of Consideration. The Commission found that a provision of the settlement agreement, requiring the agency "to do its best" to accommodate complainant on an as-needed basis, failed to confer on her anything more than that to which she was already entitled and was thus void for lack of consideration. EEOC noted, however, that the remainder of the agreement was valid, since consideration was given through another provision. Thus, the agreement was reformed so as to no longer include the invalid provision. Baek v. United States Postal Service, EEOC Appeal No. 01A43468 (September 8, 2004), request for reconsideration denied, EEOC Request No. 05A50129 (November 17, 2004).

Breach Found Despite Lack of Time Frame. The complainant raised an allegation of breach six months after executing a settlement agreement, whereby the agency would allow complainant to perform eight hours of make-up work in a specific area. The Commission found that the agency breached the agreement, noting that simply because the settlement agreement did not specify a compliance deadline did not mean that the agency had an indefinite length of time in which to satisfy its obligation. The Commission stated that, when there is no time period set forth in the agreement, the agency is required to act within a reasonable amount of time and the record did not support the agency's rationale for failing to provide complainant with the make-up opportunity. Baskin v. United States Postal Service, EEOC Appeal No. 01A44170 (October 26, 2004).

Stating a Claim

(In the following decisions, the Commission found the complaints stated a claim.)

Jones v. Department of Labor, EEOC Appeal No. 01A41672 (October 22, 2004) (failure of management to address a tense situation between complainant and a co-worker, for a period of 10 months, caused complainant to suffer an injury or harm to a term, condition, or privilege of employment based on complainant's gender).

Bhariana v. Department of the Army, EEOC Appeal No. 01A41541 (August 10, 2004) (complainant's complaint of retaliation viable where complainant was a primary witness in a management investigation of alleged sexual harassment, provided a written statement complaining of a hostile work environment, and was terminated 7 months later).

Garcia v. Department of the Air Force, EEOC Appeal No. 01A43399 (August 30, 2004) (claim of sex discrimination stated a claim where an employee under complainant's supervision was transferred and certain of complainant's responsibilities were transferred to another employee).

Albano v. United States Postal Service, EEOC Appeal No. 01A44775 (October 20, 2004) (no evidence that complainant was collaterally attacking a provision of a collective bargaining agreement or attempting to circumvent the grievance process regarding his complaint of age discrimination regarding younger, less- experienced mail handlers allegedly being promoted to higher level assignments while he was not so promoted).

(In the following decisions, the Commission found the complaints failed to state a claim.)

Duran v. United States Postal Service, EEOC Appeal No. 01A44852 (November 1, 2004) (Official discussions without more, e.g., memorialized or used as a predicate for subsequent discipline, do not render an employee aggrieved).

Morris v. United States Postal Service, EEOC Appeal No. 01A44761 (November 1, 2004) (Complaint that constitutes a collateral attack on a settlement agreement, which was not generated through the EEO administrative process, fails to state a claim).

Lindsey v. United States Postal Service, EEOC Appeal No. 01A44942 (November 9, 2004) (gambling addiction is not a covered disability for discrimination purposes).

Dupor v. United States Postal Service, EEOC Appeal No. 01A35372 (October 19, 2004), request for reconsideration denied, EEOC Request No. 05A50234 (December 6, 2004) (claim that management official refused to agree to reinstate complainant during mediation was not viable: settlement negotiations are confidential and not the proper subject of an EEO complaint).

Dehrer v. Department of Homeland Security, EEOC Appeal No. 01A44680 (September 7, 2004) (claim that complainant was not hired for an Air Marshal's position due to his age not cognizable under an exception to the ADEA allowing maximum age limits for original appointments to law enforcement positions).

Przybyla v. United States Postal Service, EEOC Appeal No. 01A43559 (August 16, 2004) (former employee's complaint concerning allegations of post-employment harassment by agency employee failed to state a claim).

Spencer v. Department of State, EEOC Appeal No. 01A44548 (October 20, 2004) (complainant, a Foreign Service Officer, could not compel the agency to process her driver's license application in the Kingdom of Saudi Arabia where the Kingdom prohibited women from driving. The Commission found that the claim did not affect a term, condition or privilege of employment, and that the agency did not have the ability to provide the remedy which she sought - the right to drive in the Kingdom of Saudi Arabia).

Timeliness

Oral Notice Does Not Affect Complaint's Timeliness. Complainant participated in a final interview with an EEO Counselor and subsequently received a notice of the right to file a formal complainant one month later. Complainant submitted his formal complaint within the 15-day limitation period. The Commission found the complaint to be timely filed, noting that complainant timely filed his complaint after receiving notice in writing of the requirement to do so. It was immaterial whether complainant received oral notice prior to that time. Brown v. Department of the Army, EEOC Appeal No. 01A43465 (October 22, 2004).

Contacting Person Logically Connected to the EEO Process Made Complaint Timely. Complainant attempted to contact the agency with regard to his claim of age discrimination. Complainant resubmitted the letter after it was returned by the Postal Service and ultimately contacted the Manager of the agency's Regional Civil Rights Office, explaining his attempts to file a complaint and his attempt to receive EEO counseling. The Commission noted that an individual must contact an official logically connected to the EEO process, which complainant did when he wrote to the Manager who was the individual the agency stated was responsible for assigning a Counselor. Accordingly, the Commission found that the agency improperly dismissed the complaint for failure to timely contact an EEO Counselor. Grauff v. Department of Transportation, EEOC Appeal No. 01A42718 (September 8, 2004).

Notice Defective - Complaint Timely Filed. The Commission found credible complainant's assertions that he did not receive the copy of the Notice of Final Interview, which had been mailed to his home, and that he timely filed a complaint after inquiring of the EEO office. While the agency claimed that the notice was mailed twice to complainant's home, the agency acknowledged that the street address was misspelled and that the notice was returned both times as unclaimed. The Commission rejected the agency's argument that the complaint should be dismissed because complainant, a previous participant in the EEO process, was aware of the filing deadlines, stating that waiting approximately four months before inquiring with the EEO Office was not unreasonable. Swanigan v. United States Postal Service, EEOC Appeal No. 01A43460 (September 8, 2004).

Complaint Untimely Filed. Complainant authorized an employee of the Postal Service to sign the delivery receipt on her behalf as her agent. Thus, complainant received the Notice of Final Interview on the date which the agent signed the delivery receipt, and her complaint, which was filed more than 15 days later, was untimely. Guidry v. United States Postal Service, EEOC Appeal No. 01A43435 (September 8, 2004).

Compensatory Damages in the Federal Sector: An Overview

By: Nicole M. Thompson

A Brief History

Title VII of the Civil Rights Act of 1964 ¹ is a powerful tool used to eliminate discrimination in the workplace. Under the Act, courts have the power to issue an injunction against an employer once the employer is found to have engaged in unlawful employment practices. In addition, the statute provides that a court may order "such affirmative action as may be appropriate, which may include, but is not limited to, reinstatement or hiring of employees, with or without back pay, or any other equitable relief as the court deems appropriate."² The protections of Title VII were extended to employees of the federal government in 1972, and the Commission was granted the authority to enforce the prohibition against discrimination in the government through "appropriate remedies." ³

In 1991, Congress found that additional legislation was required to prevent unlawful harassment and intentional discrimination in the workplace. The Civil Rights Act of 1991 added a new section to the Civil Rights statutes that dramatically changed the damages available in cases of intentional discrimination. Under § 1981A(a)(1), a complaining party pursuing a claim under Title VII, the Americans with Disabilities Act or the Rehabilitation Act could now recover compensatory damages against a respondent that engaged in intentional discrimination.⁴ Since damages were made available in addition to any relief authorized under § 706(g) of Title VII, the remedies of back pay, front pay and other previously available remedies were not affected. Subsequently, in West v. Gibson,⁵ the Supreme that the Commission had the legal authority to require federal agencies to pay compensatory damages when they are in found in violation of Title VII.

Types of Damages

Compensatory damages, which are intended to remunerate an individual for harm or injury, consist of two types: pecuniary and non-pecuniary. Pecuniary damages are awarded to compensate a complainant for out-of-pocket expenses resulting from an employer's unlawful conduct. Examples of pecuniary losses include moving expenses, employment search expenses, medical expenses, psychiatric expenses, physical therapy expenses, and other quantifiable out-of-pocket expenses. Pecuniary losses may include past expenses, which are out-of-pocket expenses that occurred prior to the date of the resolution of the damage claim, or future expenses, which are out-of-pocket expenses likely to occur in the future after resolution of the complaint. Receipts, records, bills, cancelled checks and confirmation by other individuals can be used to ascertain the amount to be awarded for past pecuniary losses. Without documentation, however, damages for past pecuniary losses typically will not be awarded to the complainant.⁶

Nonpecuniary damages are available for emotional harm, including emotional pain, suffering, inconvenience, mental anguish, loss of enjoyment of life, loss of health, and other nonpecuniary losses that are incurred as a result of the discriminatory conduct. Due to their intangible quality, nonpecuniary losses are more difficult to prove than their pecuniary counterparts. A finding of discrimination does not carry a presumption of emotional harm. There must be proof of the existence, nature and severity of the emotional harm. Examples of how the emotional harm may manifest include sleeplessness, anxiety, stress, depression, marital strain, humiliation, and emotional distress. The harm may also manifest itself physically, for example the development of ulcers, hair loss and headaches.⁷ Nonpecuniary damages may also be awarded if an individual experiences considerable inconvenience, damage to professional reputation and loss of future earning capacity. The statute specifically limits awards of future pecuniary damages and non-pecuniary damages to $300,000 for employers of 501 or more employees, and provides that punitive damages are not available against the federal government or a government agency.

Proof of Damages

The necessary elements of proof for a claim of compensatory damages are proof of actual harm or injury and proof that the unlawful conduct caused the harm or injury.⁸ The complainant must prove that there has been a compensable harm or loss and that the cause of such harm or loss is attributable to the unlawful conduct of the agency. The complainant bears the burden of proof and must sufficiently establish a causal connection between the respondent's illegal conduct and the complainant's injury.⁹

While pecuniary damages can be proven with such evidence as bills and receipts, evidence required to prove non-pecuniary damages (e.g., emotional harm) can be less tangible in nature. In Carle v. Dept. of Navy,¹⁰ the Commission described the types of evidence that would support a claim of emotional harm, including a statement from the complainant describing her emotional distress, and statements from witnesses, on and off the job, describing the stress. To properly explain the emotional distress, the Commission reasoned that the statement should include specific information regarding the physical or behavioral manifestations of the distress, duration of the stress and examples of the impact of the distress while at work and while not at work. The Commission also concluded that other evidence linking the distress to the unlawful discrimination was necessary. The Commission has concluded, however, that evidence from a health care provider is a not a mandatory prerequisite for recovery of compensatory damages for emotional distress.¹¹

Complainants with a pre-existing condition are not foreclosed from pursuing a claim for emotional harm. If the complainant had a pre-existing emotional condition and his or her mental health deteriorates as a result of the discriminatory conduct, the additional harm may be attributed to the employer.¹² On the other hand, where the complainant's emotional harm is due in part to personal difficulties that were not caused or exacerbated by the discriminatory conduct, the employer is liable only for the harm caused by the discrimination.¹³

The Commission's Enforcement Guidance acknowledges that damage awards for emotional harm differ greatly, and there are no clear rules governing the amounts to be awarded. When determining these types of awards, however, it is necessary to limit the amount to the sums necessary to compensate the individual for actual harm. Though different methods of computing damage awards may be appropriate in certain cases, generally, the method for computing nonpecuniary damages should be based on consideration of the duration of the harm and the nature and severity of the harm. When deciding a case that involves compensatory damages, the Commission looks to other cases that involve similar harm.¹⁴ The Commission also strives to ensure that awards are not monstrously excessive standing alone, nor are they the result of passion or prejudice.¹⁵

Overview of Nonpecuniary Damage Awards of $100,000 or More

In one of the Commission's highest nonpecuniary awards, Estate of Nason v. United States Postal Service,¹⁶ the complainant committed suicide, leaving a suicide note that blamed the agency for her stress. The Administrative Judge found that the agency had discriminated against the complainant on the basis of disability and in reprisal for prior EEO activity, and awarded $150,000 in nonpecuniary compensatory damages. The evidence in the record included testimony from the complainant's husband that her work situation caused a loss in her ability to interact with him and their children, and caused feelings of hopelessness and extreme depression. The complainant's mother testified that the complainant was "extremely depressed and upset on a constant basis." The Commission recognized that the complainant's estate did not offer any medical evidence beyond a report issued by the physician who conducted the complainant's fitness for duty exam. Nevertheless, the Commission concluded that the record disclosed that the agency's conduct produced far-reaching symptoms of emotional distress, which strained relationships and contributed to the complainant's decision to end her life.

When the complainant in Franklin v. United States Postal Service¹⁷ was denied a request for light duty due to his degenerative knee condition and also denied reassignment several months later, he filed an EEO complaint. The Administrative Judge found that the agency had discriminated against complainant on the basis of disability, and awarded $150,000 in non-pecuniary compensatory damages. The Commission noted that although the complainant offered no medical evidence of his depression, the record did disclose a causal link between the agency's conduct and the complainant's emotional distress, which affected his relationships and his personality, and decreased his enjoyment of life. The complainant suffered humiliation at not being able to find a comparable job and experienced such shame and despair that interaction with his family became strained.

In Ellis v. Department of Defense,¹⁸ the complainant alleged that she was subjected to a hostile work environment created by her supervisor. The complainant retired approximately one year after her supervisor left the facility. The agency found discrimination on the basis of gender and disability, citing numerous incidents of harassment, including criticism of her work, ridicule of her physical and emotional condition, statements to the complainant that she should kill herself and ostracism in the workplace. The complainant indicated that her existing medical condition (fibromyalgia) was exacerbated by the supervisor's conduct. The complainant submitted a statement that detailed the changes in her life as a result of the discrimination, which included sleeping problems, destruction of her self-image, financial problems, mental anguish and loss of health. The complainant also revealed that a doctor had diagnosed her with Post Traumatic Stress Disorder (PTSD). Another physician also stated that the complainant's movement was noticeably restricted, she had grief issues surrounding loss of her health, she had difficulty concentrating and she had feelings of helplessness. The Commission awarded $125,000 in non-pecuniary damages. The Commission took note of complainant's pre-existing medical condition, but found that the nature, severity, and duration of complainant's suffering justified the award.

In Hendley v. Department of Justice,¹⁹ the complainant alleged discrimination on the basis of sex and retaliation when the agency disciplined her for inappropriate behavior after she raised claims of harassment. The agency argued that it was only responsible for aggravation of the pre-existing condition and that an award for non-pecuniary harm related to complainant's emotional distress should be reduced by 25 percent due to the presence of the pre-existing condition. The Commission rejected this argument, and concluded that the complainant's treatment was due in large part to the agency's discrimination. When the complainant became aware of the agency's decision to discipline her for the incidents of sexual harassment that she had reported, complainant recounted having an initially severe reaction. Prior to the agency's decision to discipline, the complainant was receiving treatment for the sexual assault, but had improved to the point that she was ready to resume work. Complainant stated that she became distraught, anxious, depressed and filled with despair. In addition, the complainant became fearful, paranoid, anti-social and suffered from sleep problems. The complainant's treating psychiatrist confirmed that several of these symptoms were related to inappropriate sexual advances made towards her at work, but the symptoms reoccurred as a result of the agency's actions. The psychiatrist opined that complainant would require treatment for the rest of her life. The complainant also submitted a statement from a psychotherapist who stated that complainant's need for continued therapy was due partly to the agency's actions. In granting a non-pecuniary damages award of $125,000, the Commission took into account that seven years after the agency's actions, the complainant continued to receive therapy and take medication and was expected to need an additional two years of treatment. The Commission also considered the fact that the complainant's career pursuits had been reduced.

The complainant in Hughes v. Department of Veteran Affairs,²⁰ alleged that his supervisor sexually harassed him for a period of 15 years, including inappropriately touching and fondling complainant, and threatening and intimidating him in order to prevent him from reporting the harassing behavior.²¹ The Commission awarded complainant $125,000 in compensatory damages. Evidence in the record consisted of medical documentation that supported the conclusion that there had been emotional harm. The complainant suffered from PTSD, extreme stress, nightmares and depression. The complainant's doctor listed numerous medications that were prescribed for the physical effects of the harassment. The Commission also found credible the complainant's assertion that he would require treatment for the rest of his life. In granting this award, the Commission considered the observations of the complainant's doctors, the evidence of harm sustained, the elapsed and expected period of the harm, the complainant's diagnosis of PTSD, the sexual dysfunction that the complainant experienced, the failure of his marriage and the continuing social phobias.

In Holland v. Social Security Administration,²² the complainant alleged discrimination on the basis of mental disability (Depression and Obsessive Compulsive Disorder) and reprisal for prior EEO activity. Nearly ten years prior to working for the agency, complainant began receiving treatment for his psychiatric disorders. The complainant, who answered telephones and inputted data into the computers, requested time to perform non-telephone duties for several hours each day as a reasonable accommodation. The agency rejected the complainant's request as well as the complainant's subsequent request for use of three hours of leave without pay per day. Upon denial of both requests, the complainant applied for and was granted disability retirement. Relying on medical evidence submitted by the complainant, the Administrative Judge concluded that the complainant experienced a "severe emotional injury" due to his constructive discharge. The evidence consisted of the complainant's statement and the statements of the complainant's treating psychiatrist, who confirmed that the complainant experienced feelings of worthlessness and low self-image in the five years following the discrimination. In addition, the Administrative Judge concluded that the granting of $100,000 in nonpecuniary damages was justified by the severity of the harm, which included exacerbation of the complainant's pre-existing mental disorder, and feelings of rejection, shame and anger, and the duration of the harm, that is on-going for at least five years. The Commission noted that the extent of the agency's liability was restricted to the additional harm caused by the agency's illegal conduct. Nevertheless, the emotional symptoms described by the complainant and confirmed by both of the complainant's treating doctors justified the award.

The complainant alleged discrimination on the basis of reprisal for prior Title VII EEO activity in Leatherman v. Department of Navy.²³ Incidents of harassment included a letter of reprimand, humiliation during a staff meeting and criticism concerning a job task. In its decision, the Commission noted that in cases where the Commission has awarded non-pecuniary damages that exceed $40,000, the evidence demonstrated that the "emotional or psychological injuries that resulted from the agency's conduct either had permanent or substantially long term effects, or were so catastrophic that no inquiry into long-term effects was necessary." The complainant was hospitalized on two occasions, and took various anti-depressants and psycho-tropic medications for over one year. She stated that she was unable to sleep, experienced suicidal thoughts and was anxious. In addition, the complainant's psychiatrist diagnosed the complainant's condition as severe major depression. Noting the serious nature and the duration of the complainant's suffering, the Commission awarded $100,000 in nonpecuniary damages.

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Footnotes

¹42 U.S.C.§ 2000e.

²Id. § 2000e-5(g)9(1)(1991).

³Id. § 2000 e-16(b)(1).

⁴Section 102 of the Civil Rights Act of 1991 was codified as 42 U.S.C. 1981 and hereinafter will be referred to as § 1981A.

⁵527 U.S. 212 (1999).

⁶EEOC Enforcement Guidance: Compensatory and Punitive Damages Available Under Section 102 of the Civil Rights Act of 1991, EEOC Notice No. N. 915.002 (July 14, 1992) (hereinafter referred to as Enforcement Guidance).

⁷Id.

⁸Id.

⁹Id.

¹⁰EEOC Appeal No. 01922369 (January 5, 1993).

¹¹Economou v. Department of Army, EEOC Appeal No. 01983435 (August 5, 1999).

¹²Enforcement Guidance, supra n.6.

¹³Id.

¹⁴Id.

¹⁵Cygnar v. City of Chicago, 865 F.2d 827, 848 (7th Cir.).

¹⁶EEOC Appeal No. 01A01563 (June 21, 2001).

¹⁷EEOC Appeal Nos. 07A00025 and 01A03882 (January 19, 2001).

¹⁸EEOC Appeal No. 01A13314 (April 29, 2003).

¹⁹EEOC Appeal No. 01A20977 (May 15, 2003), request for reconsideration denied, EEOC Request No. 05A30962.

²⁰EEOC Appeal No. 07A10095 (August 30, 2002).

²¹Though the harassment spanned a period of 15 years, the Commission assessment was based on the period of November 21, 1991 to 1995 since compensatory damages only became available to complainants after the effective date of the CRA of 1991, November 21, 1991.

²²EEOC Appeal No. 01A0372 (October 2, 2003).

²³EEOC Appeal No. 01A12222 (December 14, 2001).