DEIRDRA BROWN-FLEMING, COMPLAINANT,
v.
ERIC H. HOLDER, JR., ATTORNEY GENERAL, DEPARTMENT OF JUSTICE, AGENCY.

Appeal No. 0120082667
Agency No. 1878145

On May 16, 2008, Complainant filed an appeal from the Agency's April 30, 2008, final decision concerning 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. The Commission accepts Complainant's appeal pursuant to 29 C.F.R. § 1614.405(a). For the following reasons, the Commission MODIFIES the Agency's final decision

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as an Assistant United States Attorney at the Agency's United States Attorney's Office for the Northern District of Alabama in Huntsville, Alabama. In Deirdra Brown v. Department of Justice, Appeal No. 0120045121 (December 20, 2006), the Commission found that the Agency discriminated against Complainant on the bases of her sex, race, and in reprisal for her prior protected EEO activity when: (1) on April 5, 2002, the Agency denied her request to attend a training conference in France; and (2) by letter dated May 10, 2002, the Agency terminated her employment.

By way of relief, the Commission ordered the Agency to reinstate Complainant to the position of Assistant United States Attorney, remove any references to Complainant's EEO activity and the unlawful termination from her records, pay all back pay and benefits, approve Complainant's training request, pay all proven compensatory damages, provide training to all staff at Complainant's facility, consider taking appropriate disciplinary action against all responsible management officials still employed with the Agency, and post a Notice. Further, the Commission ordered the Agency to provide Complainant with front pay in the event that she rejected the offer of reinstatement to her prior position.

The Agency conducted a supplemental investigation regarding compensatory damages. In its April 30, 2008, decision, the Agency awarded Complainant $40,000.00 in non-pecuniary compensatory damages for pain and suffering. The Agency also awarded Complainant $15.00 for medical expenses.1

On appeal, Complainant contends that the Agency erred in awarding only $40,000.00 in non-pecuniary compensatory damages and argues that she is entitled to the maximum statutory award of $300,000.00. Complainant also contends that she is entitled to pecuniary damages in the amount of $43,513.30 for out-of-pocket expenses, premature tax liability and loss of interest for having to liquidate her retirement account as the result of the Agency's discrimination.

ANALYSIS AND FINDINGS

Non-Pecuniary Damages

Compensatory damages do not include back pay, interest on back pay, or any other type of equitable relief authorized by Title VII. 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. See Rivera v. Department of the Navy, EEOC Appeal No. 01934157 (July 22, 1994), request for reconsideration denied, EEOC Request No. 05940927 (December 11, 1995); EEOC's Enforcement Guidance: Compensatory and Punitive Damages Available Under Section 102 of the Civil Rights Act of 1991. EEOC Notice No. 915.002 at 11-12, 14 (July 14, 1992). A complainant is required to provide objective evidence that will allow an Agency to assess the merits of her request for damages. See Carle v. Department of the Navy, EEOC Appeal No. 01922369 (January 5, 1993).

The Commission applies the principle that "a tortfeasor takes its victims as it finds them." See Wallis v. United States Postal Service, EEOC Appeal No. 01950510 (November 13, 1995) (quoting Williamson v. Handy Button Machine Co., 817 F.2d 1290, 1295 (7th Cir. 1987)). However, the Commission also applies two exceptions to this general rule. First, when a complainant has a pre-existing condition, the Agency is liable only for the additional harm or aggravation caused by the discrimination. Second, if the complainant's pre-existing condition inevitably would have worsened, the Agency is entitled to a reduction in damages reflecting the extent to which the condition would have worsened even absent the discrimination; the burden of proof is on the Agency to establish the extent of these offsets. Wallis, EEOC Appeal No. 01950530 (citing Maurer v. United States, 668 F.2d 98 (2d Cir. 1981)); Finlay v. United States Postal Service, EEOC Appeal No. 01942985 (April 29, 1997). The Commission notes, therefore, that Complainant is entitled to recover damages only for injury, or additional injury, caused by the discrimination. See Terrell v. Department of Housing and Urban Development, EEOC Appeal No. 01961030 (October 25, 1996); EEOC Notice No. N 915.002 at 12.

Pecuniary losses are out-of pocket losses that occurred prior to the date of resolution of the damage claim and those out-of-pocket losses that are likely to occur after resolution of the claim. Non-pecuniary losses are losses that are not subject to precise quantification, i.e., emotional pain, suffering, inconvenience, mental anguish, loss of enjoyment of life, injury to professional standing, injury to character and reputation, injury to credit standing, and loss of health. See EEOC Notice No. 915.002 at 10 (July 14, 1992).

After establishing entitlement to an award of compensatory damages, there is no precise formula for determining the amount of damages for non-pecuniary losses, except that the award should reflect the nature and severity of the harm and the duration or expected duration of the harm. See Loving v. Department of the Treasury, EEOC Appeal No. 01955789 (August 29, 1997). It should likewise be consistent with amounts awarded in similar cases. See Hogeland v. Department of Agriculture, EEOC Appeal No. 01976440 (June 14, 1999). Moreover, we point out that non-pecuniary compensatory damages are designed to remedy a harm and not to punish the Agency for its discriminatory actions. Furthermore, compensatory damages should not be motivated by passion or prejudice or be "monstrously excessive" standing alone but should be consistent with the amounts awarded in similar cases. See Ward-Jenkins v. Department of the Interior, EEOC Appeal No. 01961483 (March 4, 1999).

The Commission has held that evidence from a health care provider is not a prerequisite for recovery of compensatory damages. See Carpenter v. Department of Agriculture, EEOC Appeal No. 01945652 (July 17, 1995). Courts also have held that "expert testimony ordinarily is not required to ground money damages for mental anguish or emotional distress." See Wulf v. City of Wichita, 883 F.2d 842, 875 (10th Cir. 1989). A complainant's own testimony, along with the circumstances of a particular case, can suffice to sustain his/her burden in this regard. Nonetheless, the absence of supporting evidence may affect the amount of damages deemed appropriate in specific cases. See Lawrence v. USPS, EEOC Appeal No. 01952288 (April 18, 1996).

In this case, based on our review of the evidence in the record and based upon Commission precedent, we find that Complainant is entitled to $150,000.00 in non-pecuniary damages. This is a reasonable and appropriate award based on the evidence before us. The Commission finds that the Agency properly determined that Complainant established a causal nexus between the non-pecuniary harm and the discrimination. We further concur with the Agency's finding that the record establishes that despite Complainant's pre-existing conditions and additional stressors, the Agency's discriminatory termination was the proximate cause of her emotional and physical problems. Specifically, the record shows that Complainant suffered from depression, anxiety, stress, insomnia, difficulty concentrating, disassociation, crying spells, social isolation, damage to her professional reputation, withdrawal from relationships, short-term memory loss, nightmares, panic, worsening abdominal pain, worsening hypertension, dramatic weight-loss, and worsening psoriasis brought on by stress. Supplemental Investigation. Exhibit 4 at 86-91: Exhibit 5-B10: Exhibit C1, C2.

Consequently, we modify the Agency's determination of the amount because the higher amount is clearly supported by the evidence. The award is based on the actual harm experienced which was the result of the Agency's actions, and it takes into account both the nature of the Agency's discriminatory actions as well as the nature, duration and severity of the harm Complainant experienced as a result of those actions. See Utt v. United States Postal Service, EEOC Appeal No. 0720070001 (March 26, 2009) (Commission's compensatory damages award takes into account the nature of the Agency's discriminatory actions).

We further determine that the Commission's award is consistent with amounts awarded in similar cases. See, e.g., Franklin v. United States Postal Service, EEOC Appeal No. 07A00025 (January 19, 2001) ($150,000 in non-pecuniary damages awarded where as a result of the agency's actions, complainant experienced extensive symptoms of emotional distress, resulting in changes in complainant's personality, the ending of his marriage, severe strains in his relationships with those close to him, including his children, and diminished enjoyment of life); Booker v. Department of Defense, EEOC Appeal No. 07A00023 (August 10, 2000) ($150,000 in non-pecuniary damages awarded where as a result of the agency's actions, complainant experienced severe depression, resulting in three suicide attempts).

Pecuniary Damages

Finally, we turn to the issue of pecuniary damages. Pecuniary losses are out-of-pocket expenses that are incurred as a result of the employer's unlawful action. Typically, these damages include reimbursement for medical expenses, job-hunting expenses, moving expenses, and other quantifiable out-of-pocket expenses. Enforcement Guidance: Compensatory and Punitive Damages Available Under Section 102 of the Civil Rights Act of 1991, EEOC Notice No. 915.002 (July 14, 1992), at 14. Past pecuniary losses are losses incurred prior to the resolution of a complaint through a finding of discrimination, the issuance of a full-relief offer, or a voluntary settlement. Id. at 8-9. Future pecuniary losses are losses that are likely to occur after resolution of a complaint. Id. at 9. For claims seeking pecuniary damages, such objective evidence should include documentation of out-of-pocket expenses for all actual costs and an explanation of the expense, e.g., medical and psychological billings, other costs associated with the injury caused by the agency's actions, and an explanation for the expenditure. Id. at 9.

In the present case, Complainant submitted a claim for past pecuniary damages in the amount of $3,668.71 for copies, supplies, meals, hotel expenses, airfare, delivery costs, and depositions taking place in 2003. We find, however, that Complainant does not attach any receipts or other documentary evidence in support of this claim. Accordingly, we find insufficient evidence in support of this claim in the record before us.

The record reflects that Complainant liquidated her retirement account in order to pay off her car note after she was terminated by the Agency. Complainant submits documentation establishing the amount she withdrew, as well as the broker's fees, tax penalties, and lost interest. As previously found by the Commission, a complainant is not entitled to reimbursement of expenses that would have been incurred whether they were discriminated against or not. See Lee v. USPS, EEOC Appeal No. 01995204 (July 11, 2001). Complainant is, however, entitled to reimbursement for foregone interest or penalties on the withdrawals, as complainant would not have incurred these "but for" the agency's discrimination. Mature v. USPS, EEOC Appeal No. 07A20065 (March 17, 2003). Here, Complainant has submitted sufficient evidence of foregone interest and penalties incurred as a result of the withdrawal of her TSP account. The evidence reflects that the account value at the time of liquidation was $33,074.65 and that she incurred a brokerage fee of $2,727.00; a penalty of $3,004.00; and a premature tax liability of $5,731.00, for a total of $11,462.00. Complainant also provided sufficient evidence to support her claim that the foregone interest lost as a result of having to liquidate her account totals $27,659.59. Supplemental Investigation, Exhibit F. Accordingly, we find that Complainant is entitled to $39,121.59 in pecuniary damages.

CONCLUSION

After a review of the record in its entirety, including consideration of all statements submitted on appeal, we MODIFY the Agency's decision on compensatory damages. We order the agency to take corrective action in accordance with this decision and the Order below.

ORDER

The Agency is ordered to take the following remedial action:

1. Within sixty (60) calendar days of the date this decision becomes final, the Agency shall pay Complainant $150,000.00 in non-pecuniary compensatory damages.

2. Within sixty (60) calendar days of the date this decision becomes final, the Agency shall pay Complainant $39,121.59 in pecuniary compensatory damages.

3. Within sixty (60) calendar days of the date this decision becomes final, to the extent that the Agency has not already done so, the Agency shall pay Complainant $15.00 in medical expenses.

ATTORNEY'S FEES (H0900)

If complainant has been represented by an attorney (as defined by 29 C.F.R. § 1614.501(e)(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 (K0610)

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 77960, Washington, DC 20013. 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 (M0610)

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), at 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 77960, Washington, DC 20013. 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 (T0610)

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 (Z0610)

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 from the Court that the Court appoint an attorney to represent you and that the Court also 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 with the Court 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

October 28, 2010

1. Complainant does not raise the issue of medical expenses in her appeal and, as such, we affirm the Agency's award.