GORDON T. CARPENTER, APPELLANT,
v.
DAN GLICKMAN, SECRETARY, DEPARTMENT OF AGRICULTURE, AGENCY.

Appeal No. 01945652
Agency No. 92-0615

Appellant filed an appeal with this Commission from a final decision of the agency concerning his complaint of unlawful employment discrimination in violation of the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. §621 etseq., and section 501 of the Rehabilitation Act of 1973, as amended, 29 U.S.C. §791 etseq. The appeal was filed September 14, 1994. The agency failed to submit a postal return receipt or other evidence that would show when appellant received the final agency decision. Accordingly, the appeal is accepted as timely (see29 C.F.R. §1614.402(a)), in accordance with EEOC Order No. 960, as amended.

ISSUE PRESENTED

The issue on appeal is whether the agency properly limited appellant's request for compensatory damages following settlement of his complaint.

BACKGROUND

The record in this case indicates that appellant filed a series of formal EEO complaints between June 15, 1992, and October 7, 1993, alleging that the agency discriminated against him on the bases of age, disability (acquired fungus mold allergy), and reprisal when, among other things, it harassed him, failed to provide him with a reasonable accommodation by requiring that he work in an environment adversely affecting his disability, subjected him to disparate terms and conditions of employment, and gave him unfair work assignments.

On November 12, 1993, appellant and the agency entered into a settlement agreement, which contained, interalia, the following provisions:

3. Upon the effective date of [complainant's] separation, [the agency will] process a lump sum payment in the amount of $40,000, less any taxes or other required deductions.
. . . .
5. Pay proven compensable damages not to exceed One Hundred Fifty Thousand ($150,000). The Agency further agrees to pay reasonable attorney's fees in the matter of proven compensable damages.

Appellant agreed to withdraw his complaints and waive his right to file any action concerning the issues raised in the complaints. He further agreed to submit his request for compensatory damages within sixty days of the effective date of the agreement. Both parties further stipulated that the "agreement is not admission or concession by either [appellant] or [the agency] that discrimination occurred or that the party's perceptions of the facts was correct or not."Both parties also agreed to protect the privacy rights of appellant and all other individuals involved in this matter. Finally, the agency agreed that it would "expeditiously make a decision on the amount of damages" to be paid to appellant upon receipt of his request for compensatory damages.

The record indicates that appellant timely filed his request for compensatory damages in an amount that exceeded $150,000.00, acknowledging that he was not entitled to more than the amount set forth in the agreement. Appellant's request included medical records, affidavits, statements from health care providers, and other documents supportive of his request. The agency, in its August 14, 1994 final decision, determined that appellant was entitled to $544.02 in compensatory damages for past pecuniary losses; it rejected his claim for future pecuniary damages and for nonpecuniary damages. On September 14, 1994, appellant filed this appeal with the Commission challenging the agency's decision limiting his recovery of compensatory damages.

The Analysis and Findings that follow addresses appellant's request for damages and the agency's response and sets forth the Commission's findings and conclusions.1

ANALYSIS AND FINDINGS

EEOC Regulation 29 C.F.R. §1614.504(a) provides that any settlement agreement knowingly and voluntarily agreed to by the parties shall be binding on both parties. It further provides that if the complainant believes that the agency failed to comply with the terms of a settlement agreement, the complainant shall notify the Director of Equal Employment Opportunity of the alleged noncompliance with the settlement agreement. Id. The complainant may request that the terms of the settlement agreement be specifically implemented or request that the complaint be reinstated for further processing from the point processing ceased under the terms of the settlement agreement. Id.

Settlement agreements are contracts between the appellant and the agency and it is the intent of the parties as expressed in the contract, and not some unexpressed intention, that controls the contract's construction. Eggleston v. Department of Veterans Affairs, EEOC Request No. 05900795 (August 23, 1990). In ascertaining the intent of the parties with regard to the terms of a settlement agreement, the Commission has generally relied on the plain meaning rule. See Hyon O v. U.S. Postal Service, EEOC Request No. 05910787 (December 2, 1991). This rule states that if the writing appears to be plain and unambiguous on its face, its meaning must be determined from the four corners of the instrument without resort to extrinsic evidence of any nature. See Montgomery Elevator v. Building Eng'g Servs., 730 F.2d 377 (5th Cir. 1984).

As a preliminary matter, the Commission notes that the parties' agreement expressly provides that it "is not admission or concession by either [appellant] or [the agency] that discrimination occurred or that the party's perceptions of the facts was correct or not."Notwithstanding the agreement's express denial of liability, the Commission notes that in order to settle the complaint, the agency agreed to pay up to $150,000 for proven compensable damages.

The Commission further notes, as a predicate to our analysis of appellant's request for compensatory damages, that the U.S. Supreme Court has held that Section 102, which authorizes, interalia, damages, may not be applied to cases arising prior to the November 21, 1991 effective date of the Civil Rights Act of 1991 (CRA 1991). Landgraf v. USI Film Products, 114 S. Ct. 1483 (1993). We note, however, that where there is a violation that begins before the effective date of the CRA 1991 and continues after November 21, 1991, damages may be sought for the post-Act conduct. A complainant is entitled to reimbursement for all pecuniary and nonpecuniary losses incurred as a result of the post-Act discrimination. Thus, if an agency is liable for post-Act conduct, it is responsible for the damages that result from that conduct, even if the complainant was already emotionally weakened by its pre-Act conduct and the post-Act injury is greater as a result. See Hatley v. Store Kraft Mfg. Co., 859 F. Supp. 1257, 1259-60 (D. Neb 1994). Evidence of pre-Act discrimination thus is relevant in assessing the extent of post-Act injury.

1. Agency's alleged Delay in Addressing Appellant's Request for Compensatory Damages

On appeal, appellant asserts that the agency breached its agreement to make a decision "expeditiously" concerning his request for damages. Appellant notes that he filed his request on January 7, 1994; that he contacted the agency in early February to ascertain the status of his request; that he provided additional information on February 8, 1994; that the agency requested additional information thereafter, which appellant provided in February and March; that in April appellant attempted to learn when the agency would issue its decision and that in an April 25, 1994 letter, the agency advised him that it would issue a decision within six weeks; and that appellant wrote the agency in July indicating that no decision yet had been issued and advising the agency that he would appeal to the Commission if it did not issue a decision by August 8, 1994. The record indicates that the agency issued its decision on appellant's request for compensatory damages on August 12, 1994.

In his appeal, appellant asserts that the agency's alleged failure to act "expeditiously" or "in good faith" constitutes a breach of the settlement agreement and that he should receive $150,000.00, which is the maximum that the agreement allows. In other words, appellant is seeking to impose a sanction on the agency for its purported breach, i.e., that he should be entitled to the full amount of monies designated as compensatory damages without having to prove his entitlement therefore. The Commission notes, however, that the entitlement to compensatory damages in the subject settlement agreement is not automatic; appellant must prove his entitlement to reimbursement for the damages, which he shows that he has incurred as a result of the post-Act discrimination, i.e., the harassment and the failure to provide reasonable accommodation. Consequently, even if appellant were to show that the agency breached the agreement by failing to act expeditiously or in good faith, he still would not be entitled to the compensatory damages specified in the agreement.

Furthermore, we find that the agency did not fail to act expeditiously or in good faith. Appellant contends that the parties "understood" that the agency would issue its decision in early 1994. The Commission disagrees with appellant that the record supports a finding of breach because of the agency's alleged delay in issuing a decision. The language of the agreement upon which appellant rests his argument is vague and nonspecific. Appellant's present contention, that the agency would issue a decision early in 1994, is not addressed in the agreement. The Commission has held that a written contract is deemed to embody the entire agreement between the parties. Kennedy v. National Aeronautics & Space Administration, EEOC Request No. 05920677 (November 27, 1992). To the extent appellant sought assurances that he would receive a decision early in 1994, his understanding should have been reduced to writing as part of the settlement agreement. See Jenkins-Nye v. General Services Administration, EEOC Appeal No. 01851903 (March 4, 1987).

Appellant also contends that the agency breached the agreement's privacy provisions when an agency employee sought his medical records without first having obtained his consent. Assuming for the purposes of this decision that the agency's initial attempt to obtain appellant's medical records constituted a breach of his privacy as well as the settlement agreement, we find that its subsequent request for consent to gain access to relevant medical records constituted a cure for its breach. We further note that appellant does not allege that the agency disclosed appellant's medical records to persons without a need to know the contents thereof. Finally, we note that appellant's request for compensatory damages related to emotional distress and medical expenses made his medical condition an issue subject to agency examination and review.2

2. Appellant's Entitlement to Compensatory Damages--Causal Connection to Agency Action

Compensatory damages may be awarded for all post-Act pecuniary losses and for nonpecuniary losses, such as, but not limited to, emotional pain, suffering, inconvenience, mental anguish, and loss of enjoyment of life. In Carle v. Department of the Navy, EEOC Appeal No. 01922369 (January 5, 1993), the Commission described the type of objective evidence that an agency may obtain when assessing the merits of a complainant's request for emotional distress damages:
[E]vidence should have taken the form of a statement by appellant describing her emotional distress, and statements from witnesses, both on and off the job, describing the distress. To properly explain the emotional distress, such statements should include detailed information on physical or behavioral manifestations of the distress, information on the duration of the distress, and examples of how the distress affected appellant day to day, both on and off the job. In addition, the agency should have asked appellant to provide objective and other evidence linking . . . the distress to the unlawful discrimination . . . .

Objective evidence may include statements from the complainant concerning his/her emotional pain or suffering, inconvenience, mental anguish, loss of enjoyment of life, injury to professional standing, injury to character or reputation, injury to credit standing, loss of health, and any other nonpecuniary losses that are incurred as a result of the discriminatory conduct. Statements from others, including family members, friends, and health care providers could address the outward manifestations or physical consequences of emotional distress, including sleeplessness, anxiety, stress, depression, marital strain, humiliation, emotional distress, loss of self-esteem, excessive fatigue, or a nervous breakdown. Objective evidence also may include documents indicating a complainant's actual out-of-pocket expenses related to medical treatment, counseling, and so forth, related to the injury allegedly caused by discrimination. In determining damages, the agency is only responsible for those damages that are clearly shown to be caused by the alleged discriminatory conduct, not for any and all damages in general.

a. Appellant's evidence in support of his request for nonpecuniary damages

In this matter, appellant, who worked for the agency over twenty-five years, submitted a fifty-page, unsworn statement in support of his claim for compensatory damages. He also provided a three-page sworn declaration, statements from his wife and health care providers, as well as other documents from his physicians in support of his request.

Appellant's complaints focused, in part, on the agency's requirement that he work, beginning in June 1988, in a log lodge that was marked by insect damage and infestation, rotted wood, fungus, and molds. Following his assignment to the log lodge, appellant experienced increased difficulty with breathing. Thereafter, appellant informed his supervisors of his difficulties caused by the lodge and they, according to appellant, failed to accommodate his disability, began to harass him, and took reprisal actions against him, including actions that he interpreted as threatening his continued employment with the agency. Appellant worked in and out of the log lodge until August 1990 and suffered Bronchial Asthma, "a permanent handicapping condition," caused by his assignment to the lodge, according to a workers' compensation claim that he filed. Between the late summer of 1990 and 1992, appellant apparently worked in a office with a window, but remained tasked with providing tours to agency visitors that started at the log lodge. Appellant's statement also notes that in September 1992, the agency reassigned him from his window office to a windowless inside office and that in March 1993, he was moved again to another inside, windowless office. According to appellant's statement, this latter office had inadequate air circulation and he had difficulty breathing when the door to the office was closed. Appellant states that his use of the office exacerbated his asthma and caused him to be absent from work for two months.

Statements from appellant's health care providers corroborate appellant's claim of respiratory problems. A September 15, 1993 statement from Dr. B, who holds a Diploma from the American Board of Allergy and Immunology, stated that appellant presented "extrinsic asthma in March 1990" and that its "onset was related to [appellant's] office space in a log cabin with high levels of dust, dust mites and molds - aspergillus."Dr. B noted that appellant responded well to treatment until March 1993, when he "presented with acute asthma precipitated by 'increased dust and molds due to his office renovations and inadequate air circulation."' Dr. B also noted that appellant's medical condition "should have little impact on life activities on or off the job if he follows prescribed plan," which requires his use of an Intal Inhaler four times a day, a Ventolin Inhaler every four to six hours if needed or fifteen minutes before anticipated exposure to known precipitants, and good environmental controls. Dr. B's statement added that appellant's "continuous exposure to high levels of molds, fungus, dust, and dust mites may severely exacerbate [his] asthma to such a degree that he would be unable to work to capacity."Finally, Dr. B's statement indicated that appellant could perform the essential functions of his job as long as the agency accommodated his medical condition by providing him with a well-ventilated, air-conditioned office and a parking space near his office to minimize walking.

A separate statement from a second health care provider, Dr. V, dated December 29, 1993, indicated that appellant "has sustained moderately severe medical, physical and emotional-psychological disorders," including chronic recurrent bronchial asthma and hypertension. Dr. V noted that there is an unpredictability associated with appellant's asthma, because of its relationship to environmental factors. Dr. V stated that appellant's current work place environment was not conducive to his well-being and that he likely would "suffer injury or harm if he will continue in his position of record."Dr. V's statement confirmed Dr. B's opinion that an accommodation of appellant's condition would require controlling his work place environment.

Appellant's statement further described the stress and distress caused by agency actions. He stated that the agency's actions caused:
irreparable harm to my emotional health and I, on a daily basis, have brought the work situation home to my family and friends. My family suffers by having to endure my heightened sensitivity and irritability. I no longer enjoy the same quality of life both on and off the job, both physically and emotionally.

In a separate, sworn statement, appellant stated that his "family, friend, and work relationships began to deteriorate" in the pre-Act period, beginning in June 1988, continuing into the post-Act period. He stated that he suffered "long periods of anger and self pity" and took out his pain and suffering "on the ones I love." He stated that as a result of his work-related stress, "I am non-responsive to my sexual desires," resulting "in little to no sexual activity with my wife," an inability to engage in sexual relations, and "feelings of helplessness and embarrassment." Appellant stated that prescribed medications caused intolerable side effects, that his digestive system shut down, and that he suffered from internal bleeding, hemorrhoids, and severe pain. Appellant also stated that he now suffers from Nerve Ending Dermatitis and develops hives when he becomes nervous.

Appellant's wife, Mrs. C, seconded his description of their relationship, noting that "prior to his discriminatory treatment on the job, [appellant] was an ardent lover."Mrs. C stated that subsequent to his work place treatment, she and appellant attempted to engage in sexual relations only three or four times per year but appellant was physically unable to do so. She also noted that appellant became preoccupied with what was occurring at work and would discuss work place matters with her and their children to the point where the children would ask him to stop. Mrs. C stated that prior to the improper agency action, appellant often played with his children, but became increasingly withdrawn from them and treated them abruptly. She stated that as a result, the children "began to exhibit symptoms of heightened nervousness . . . ." She further noted that over the four years that appellant was subjected to agency discrimination, harassment, and reprisal, he became "anxious, agitated, irritated, angry, and frustrated with his work environment."She noted that after he was transferred to the inside office in March 1993, which exacerbated his asthma and caused him to miss two months of work, he "cried in my arms and told me that he was having thoughts of suicide. (My daughter later told me that she was upset because she had heard daddy crying and asked if everything was alright.)"Mrs. C noted that she accompanied her husband to see Dr. V, who arranged for him to see a psychiatrist and prescribed anti-depressant medicine. Finally, Mrs. C noted that appellant suffered from "other stress-related conditions: rashes, . . . irregular bowel movements, digestive problems -- constant heartburn and gas, sleeplessness, headaches, neck aches."

In his statement, Dr. V also stated that appellant's "progressive medical condition poses a serious adverse effect to [his] life activities and interpersonal relationship both on and off job," including the development of hostile relationships with others. He stated that appellant's work situation "had created a high pressure and high tension office life initiating an emotional, behavioral and mood changes culminating in psychiatric disorder and numerous somatic complaints that make a miserable and agonizing life both on and off work."Dr. V noted that the frequent exacerbation of his asthma caused him "discouragement, loss of spirit, hopes and limited energies and opportunities."In a separate statement, dated May 14, 1993, Dr. V noted that appellant's assignment to a windowless office in March 1993 caused him to suffer a "sudden onset of symptom complex suggestive of bronchial asthma."Dr. V noted that appellant was suffering from severe respiratory distress. He further noted that appellant's condition was difficult to treat, requiring proper environmental controls at work.

A medical report from Dr. L-B confirms Mrs. C's statement that appellant met with a psychiatrist on March 18, 1993, following a referral from Dr. V. Dr. L-B noted that appellant reported experiencing severe panic attacks, insomnia, irregular eating habits, confusion, and difficulty concentrating. DR. L-B's clinical impression of appellant was "hypomania," and she prescribed lithium carbonate, which is indicated in the treatment of manic episodes of bi-polar disorder. She also noted that in a return visit, he exhibited marked improvement and stated that she would "see him regularly to monitor his medication and for psychotherapy."

b. The Agency's Final Decision

In its final decision, the agency awarded appellant "zero" in response to his claim for emotional distress damages. The agency stated that there was no evidence in the record indicating mental distress or psychological problems until March 1993, or over a year after he initiated the EEO process. It further discounts the statement from appellant and Mrs. C because they were not notarized and are "devoid of evidence tying the claimed incidents to [appellant's] medical visits or treatment . . . ." It further suggests that "the amount of suffering claimed could have been reduced through interventions of mental health professionals early in the five years of complaint activity. There is no evidence of treatment for alleged deterioration of marital relationship."The agency also suggests that assuming appellant suffered the losses claimed, "evidence in the record leaves room for a possibility that the claimed injuries were caused by something other than the complaint activity."The agency discounted the corroborative value of Mrs. C's statement, noting the absence of affidavits from "objective third party witnesses about how [appellant's] emotional distress manifested in his behavior at work and/or in other environments."The agency further asserted that appellant failed to discuss other potential causes of his medical problems, such as his and his wife's smoking habits, whether he was exposed to secondary smoke, or how long he suffered from asthma prior to his assignment to the log lodge. Finally, it noted that appellant failed to provide affidavits from his treating physicians establishing a causal relationship between his medical condition and the allegations set forth in his complaint.

c. The Commission's decision

The Commission finds that the record supports appellant's claim for compensatory damages, including his request for damages attendant to embarrassment, humiliation, inconvenience, mental anguish, loss of enjoyment of life, loss of health, loss of consortium, and for losses associated with other disruptions of his marital and family relationships.3 Although much of the agency's conduct, such as appellant's assignment to the log lodge, occurred prior to the effective date of the CRA 1991, we further find that the agency's actions continued well into the post-Act period. We also find that the agency's actions, including its decision to assign appellant to windowless offices, exacerbated his asthma in March 1993, adding to the stress and related medical, emotional, and psychological problems described in detail in his and Mrs. C's statements.

In this regard, we disagree with the agency that appellant failed to support his claim for compensatory damages. First, although signed affidavits might be the preferable form for statements in support of claims for nonpecuniary damages, they are not mandatory. In Carle, the Commission stated that a complainant should provide a statement in support of a claim for damages. We did not require that such statements be notarized or in affidavit form. Second, we disagree with the agency's contention that the statements from appellant's health care providers are inadequate. Such statements are not a mandatory prerequisite for recovery of compensatory damages. Courts have held that "expert testimony ordinarily is not required to ground money damages for mental anguish or emotional distress."Sanchez v. Puerto Rico Oil Co., 37 F.3d 712, 724 (1st Cir. 1994), citing Wulf v. City of Wichita, 883 F.2d 842, 875 (10th Cir. 1989); Busche v. Burkee, 649 F.2d 509, 512 n.12 (7th Cir.), cert.denied, 454 U.S. 897 (1981). Moreover, and contrary to the agency, we find sufficient information in appellant's two statements, the statement from Mrs. C, and the statements from several of appellant's health care providers to establish the causal connections between the agency's actions and the resulting deterioration of his medical and emotional condition.

Third, the agency offered no evidence that factors other than those that appellant set forth in his presentation may have caused his medical and emotional distress damages. The Commission disagrees with the agency that appellant had to prove the negative, that is, disprove the possibility of other causes of his damages.4 This was the agency's burden, which it failed to meet.

Finally, the Commission disagrees with the agency's suggestion that appellant should have provided statements from "objective third party witnesses" to support his claim for damages. Appellant's claims for damages for loss of consortium or loss of enjoyment of family relationships may be outside the realm of third party observation. Moreover, courts consistently have made or upheld compensatory damage awards based on statements or testimony from a plaintiff alone, or from a plaintiff and other witnesses, who may include family members or health care providers or both. See Sanchez, 37 F.3d at 724 and cases cited therein.

In other employment discrimination cases, federal courts have awarded compensatory damages in a wide range of amounts depending on the facts of the particular case. In Rowlett v. Anheuser-Busch, Inc., 832 F.2d 194 (1st Cir. 1987), the court held that a jury's decision to award the plaintiff $123,000.00 for emotional distress was not improper based on the testimony from the plaintiff, who noted the stress caused by his discriminatory termination from the defendant, and corroboration from a psychiatrist, who also noted that the plaintiff suffered from anxiety and some depression. The court noted that the amount awarded was not "'grossly excessive' compensation for the emotional distress that would accompany several years of discrimination at work and a significant period of unemployment." Id. at 205. In Walters v. City of Atlanta, 803 F.2d 1135 (11th Cir. 1986), the court affirmed an award of $150,000.00 where plaintiff testified to a lifelong desire to work for the defendant and the "wear and tear" caused by the discrimination, which thwarted his repeated attempts to achieve that goal. See also Cooley v. Carmike Cinemas, Inc., 25 F.3d 1325 (6th Cir. 1994) (award of $85,000.00 upheld in age discrimination/termination case involving thirty-five year employee, whose own testimony, plus that of wife and son, supported the jury's decision); Kientzy v. McDonnell Douglas Corp., 990 F.2d 1051 (8th Cir. 1993) (award of $150,000.00 in sex discrimination/termination case upheld based on testimony of plaintiff and psychiatrist); Moody v. Pepsi-Cola Bottling Co., 915 F.2d 201 (6th Cir. 1990) (wrongful discharge/age discrimination case in which court upheld $150,000.00 award based on testimony of plaintiff, who testified to shock, humiliation, and adverse effect on family, and of his wife, who testified that plaintiff was upset to the point of crying); Lussier v. Runyon, 3 A.D. Cas. (BNA) 223 (D. Me. 1993) (award of $75,000.00 upheld where the defendant's actions "have caused severe and substantial injury to [plaintiff's] mental health, self-esteem and status within his family and the community [which] impact . . . is likely to stay with him the rest of his life . . . ."); see also Turic v. Hospitality House, Inc., 849 F. Supp. 544 (W.D. Mich. 1994) ($50,000.00 in sex and religion discrimination/termination case); EEOC v. AIC Security Investigations, Ltd., 823 F. Supp. 571 (N.D. Ill. 1993) ($50,000.00 in disability/termination case); McAdams v. United Parcel Service, Inc., 2 A.D. Cas. (BNA) 1489 (D. Minn. 1993) ($35,000.00 in failure to accommodate case).

In this case, the Commission finds that appellant is entitled to an award of $75,000.00 in compensatory damages for emotional distress. In making this award, the Commission recognizes that damage awards for emotional harm are difficult to determine and that there are no definitive rules governing the amount to be awarded in given cases. In this regard, the Commission finds that a proper award must meet two goals: that it not be "monstrously excessive" standing alone and that it be consistent with similar awards made in similar cases. See Cygnar v. City of Chicago, 865 F.2d 827, 848 (7th Cir. 1989). Here, the Commission notes that the parties agreed that appellant could recover up to $150,000.00 in proven compensatory damages. Appellant claimed the full amount of $150,000 for damages that began occurring prior to the effective date of the CRA 1991 and we note that much of the damages about which appellant complains occurred in the pre-Act period. Nonetheless, we find that an award of half of that amount properly compensates appellant for his emotional distress damages, based on the long pattern of agency actions that resulted in causing appellant further harm, and that such an award is not excessive standing alone.

3. Appellant's Entitlement to Past Pecuniary Losses

Appellant requested compensation for visits to health care providers in 1992 and 1993.5 In 1992, appellant asserted that he made twenty-one separate visits to health care providers and sought reimbursement of $2,243.20 in medical expenses, $112.50 for travel expenses, and $4,817.92 in sick leave (199.5 hours). In 1993, appellant listed seventeen visits and sought reimbursement of $2,009.90 in medical expenses, $112.50 for travel, and $7,462.35 in injury (249 hours) and sick leave (60 hours).

The agency ruled that appellant received reimbursement for 1,238 hours of sick leave upon his retirement, that he received eighteen days of leave from OWCP, and that he was reimbursed for 900 hours of leave without pay prior to his departure. The agency also ruled that appellant was entitled to reimbursement for five "documented" visits to health care providers in 1992, but limited his reimbursement to $56.00, the "cost to patient," which it set at 20% of the total cost. It further awarded him $156.98 for drugs, and $45.00 in travel costs (30 miles x six trips x .25¢/mile), for a total of $257.98.6 The agency also ruled that appellant was entitled to reimbursement for six visits in 1993 ($179.90),7 plus $38.64 for drugs (reimbursed at 25% of documented charges), and $67.50 in travel costs (30 miles x nine trips x .25¢/mile), for a total of $286.04. In sum, appellant sought reimbursement of $16,758.37; the agency awarded him $544.02.

Appellant disputes the agency's assertion that it reimbursed him for the 900 hours of leave without pay. He further states that the lump sum credit for sick leave that he received upon retirement did not include credit for any of the sick leave that he claimed in his compensatory damages submission. The Commission cannot determine from the present record whose argument is correct and will remand this matter so that the agency may undertake a supplemental investigation of this matter and allow appellant an opportunity to provide proof that he did not receive all of the reimbursement for leave to which he was entitled. The agency also may supplement the record with evidence regarding its alleged prior reimbursement or payment of sick leave and leave without pay.

Second, the Commission finds that appellant is entitled to a greater level of reimbursement for past pecuniary damages than the agency allowed. The record in this case indicates that job-related environmental factors caused appellant to develop bronchial asthma and that other agency actions exacerbated his respiratory condition and caused him to suffer from other physical ailments. For this reason, the Commission finds that appellant should recover more for his past pecuniary damages.

In 1992, appellant listed twenty-one visits to medical providers and the agency reimbursed him for five visits. Appellant's submittal indicates that he met with Dr. B on February 24 and July 17, listing charges of $150.00 for both visits. The agency reimbursed him $30.00 (20%). Dr. V's notes indicate that he met with appellant on the following dates:

February 18
August 24
November 2
February 27
September 1
November 17
August 13
October 16
 
August 18
October 19
 

The agency reimbursed appellant only for his November 17 visit,8 paying him $12.00, or 20% of the $60.00 documented charge.9 The Commission finds no basis for the agency's decision to isolate this single visit for reimbursement. The record indicates that each visit involved the same condition, that is, each related to appellant's respiratory system. The record does not indicate, however, what each visit cost and how much of that cost appellant paid.

Appellant also listed three visits to Dr. T and one to Dr. F. The record includes documentation of his visits to Dr. T, and the agency provided compensation of $14.00, consisting of 20% of the $70.00 cost of the visits. The agency declined to compensate appellant the full $520.00 for the three visits, finding that he also met with Dr. T for a toe injury that was unrelated to the medical conditions associated with his complaint. The agency excluded appellant's visit with Dr. F. The record indicates that Dr. F conducted lab work.

The Commission finds that appellant is entitled to reimbursement of his out-of-pocket expenses for his treatment from Drs. B, T and V, excluding treatment for his toe injury unless appellant can demonstrate that it was related to an allegation set forth herein, plus his out-of-pocket expenses for medicine; he may not receive the full documented cost of a visit or for medicine if he received reimbursement from health insurance or if his insurer paid the provider directly. On remand and in its supplemental investigation, the agency should direct appellant to provide a full accounting of his medical expenses for the two visits with Dr. B; the ten visits with Dr. V; his visits with Dr. T concerning medical expenses for conditions related to the issues raised in this matter; and for the lab work performed by Dr. F. Appellant further is entitled to reimbursement for his travel to each of his providers using the formula set forth in the agency's final decision.

Our analysis concerning appellant's reimbursement claim for 1993 is the same. Appellant sought reimbursement for seventeen visits to health care providers and for medicine; the agency compensated him at 20% for three visits, at varying amounts for two visits and one drug purchase, and at 25% for two drug purchases.10 Appellant's compensatory damages claim identified the following dates of visits with Dr. V:

February 11
March 23
April 30
March 12
March 29
May 4
March 15
April 9
May 11
March 19
April 19
 

The agency compensated appellant for his visit on February 11. The Commission again finds no basis for the agency's decision to compensate appellant only for this single visit.

The agency also compensated appellant for each of his visits with Dr. B, except for an April 5 visit. The agency failed to provide a basis for its exclusion of this visit.11

The agency did not provide appellant with compensation for charges he incurred on May 25, 1993 at Greater Laurel Beltsville Hospital. Although we note that there is no information in the file concerning the nature of these charges, we find that on remand, the agency should conduct a supplemental investigation concerning these charges in order to determine whether they were related to the disputed agency actions set forth in appellant's complaints and resolved by the settlement agreement. Similarly, appellant is entitled to compensation for his visits with Drs. B and V, limited to his actual out-of-pocket expenses; for his actual out-of-pocket expenses for drugs; and for his travel expenses.

Finally, the Commission notes that appellant omitted and the agency thus did not provide reimbursement for appellant's visits to Dr. L-B. The Commission finds that appellant has waived any entitlement to recovery of expenses relative to his treatment from Dr. L-B.

4. Future Pecuniary Damages

In its final decision, the agency ruled that appellant was not entitled to future pecuniary damages, asserting that the settlement provided for the award of $40,000.00, which amounted to an award of front pay, and that no additional award for future pecuniary damages was provided for or justified. The agency noted that the loss of future earning capacity was directly caused by appellant's agreement to retire.

The Commission agrees. The Commission notes that loss of future earning capacity is not the same as front pay: an award for loss of future earning capacity concerns the effect that appellant's injury will have on his ability in the future to earn a salary comparable with what he earned before his injury. Front pay, which is an equitable remedy and thus not encompassed by the parties' agreement concerning compensatory damages, compensates an individual where s/he no longer would be able to work for the party found to be discriminating. Damages for loss of future earning capacity are generally awarded in personal injury cases, but also have been awarded in employment discrimination cases. McKnight v. General Motors Corp., 973 F.2d 1366, 1370 (7th Cir. 1992), cert.denied113 S. Ct. 1270 (1993), citing Morales v. Cadena, 825 F.2d 1095, 1100 (7th Cir. 1987). Proof of entitlement to loss of future earning capacity involves "evidence suggesting that [an individual's] injuries have narrowed the range of economic opportunities available to him." Gorniak v. Nat'l R.R. Passenger Corp., 889 F.2d 481, 484 (3d Cir. 1989). Such evidence need not prove that the injured party will, in the near future, earn less than s/he did previously, but that "his injury has caused a diminution in his ability to earn a living."Id. Courts require evidence that the impairment of earning capacity "be shown with reasonable certainty or reasonable probability and there must be evidence which will permit the [factfinder] to arrive at a pecuniary value for the loss."Annotation, Evidence of Impaired Earnings Capacity, 18 A.L.R.3d 88, 92 (1968).

In this case, the record indicates that appellant agreed to retire on disability when he entered into the settlement agreement. The Commission finds that his retirement precludes an award of future pecuniary damages; whatever diminution in earning capacity appellant may have suffered as a result of the agency's actions is eliminated by his disability retirement.

CONCLUSION

Accordingly, based on a thorough review of the record and for the reasons set forth herein, it is the decision of the Commission to REVERSE the agency's final decision that it complied with the terms of paragraph 5 of the settlement agreement and to award appellant compensatory damages as discussed in this opinion and as further set forth in the ORDER below. It further is the decision of the Commission to REMAND this matter to the agency for the purpose of making the payments noted herein, conducting a supplemental investigation, calculating appellant's entitlement to past pecuniary damages, and for further processing in accordance with this decision and the applicable regulations.


ORDER

In compliance with paragraph 5 of the parties' settlement agreement, the agency is ORDERED to pay appellant $75,000.00 in nonpecuniary compensatory damages within thirty (30) days of the date that this decision becomes final.

The agency is further ORDERED to conduct a supplemental investigation, which shall include the following actions:
1. Obtain from appellant documentation supporting his request for past pecuniary damages, including information pertaining to charges from appellant's health care providers relevant to the allegations and injuries noted in this decision and any insurance or other reimbursement that appellant received for these charges;
2. Determine whether appellant has been properly reimbursed for sick or annual leave or leave without pay and provide documentary support for its conclusion;
3. Obtain from appellant a statement concerning attorney's fees attendant to the preparation of documentation and other supporting materials relative to the supplemental investigation of this matter.

The supplemental investigation must be completed within sixty (60) days of the date this decision becomes final. The agency shall issue a new final decision, with appeal rights to the Commission, within thirty (30) days thereafter concerning additional amounts to which appellant is entitled on his claim for compensatory damages and on his request for attorney's fees.

A copy of the agency's letter to appellant enclosing a check for payment of the determined attorney's fees and compensatory damages, as well as the new final agency decision, must be sent to the Compliance Officer as referenced below.

ATTORNEY'S FEES (H1092)

If appellant 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 (K1092)

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 appellant.

RECONSIDERATION (M1092)

The Commission may, in its discretion, reconsider the decision in this case if appellant or the agency submits a written request containing arguments or evidence which tend to establish that:
1. New and material evidence is available that was not readily available when the previous decision was issued; or
2. The previous decision involved an erroneous interpretation of law, regulation or material fact, or misapplication of established policy; or
3. The decision is of such exceptional nature as to have substantial precedential implications.

Requests to reconsider, with supporting arguments or evidence, MUSTBEFILEDWITHINTHIRTY (30) CALENDARDAYS of the date you receive this decision, or WITHIN TWENTY (20) CALENDAR DAYS of the date you receive a timely request to reconsider filed by another party. Any argument in opposition to the request to reconsider or cross request to reconsider MUST be submitted to the Commission and to the requesting party WITHINTWENTY (20) CALENDARDAYS of the date you receive the request to reconsider. See29 C.F.R. §1614.407. All requests and arguments must bear proof of postmark and 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 filed on the date it is received by the Commission.

RIGHT TO FILE A CIVIL ACTION (R0993)

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. It is the position of the Commission that 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. You should be aware, however, that courts in some jurisdictions have interpreted the Civil Rights Act of 1991 in a manner suggesting that a civil action must be filed WITHIN THIRTY (30) CALENDAR DAYS from the date that you receive this decision. To ensure that your civil action is considered timely, you are advised to file it WITHIN THIRTY (30) CALENDAR DAYS from the date that you receive this decision or to consult an attorney concerning the applicable time period in the jurisdiction in which your action would be filed. 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 (Z1092)

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 etseq.; 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:

Frances M. Hart
Executive Officer
Executive Secretariat

July 17, 1995

1. Appellant also sought Commission review of his request for attorney's fees. By letter dated March 15, 1995, he withdrew his request for review, noting that the agency paid his attorney's fees in full through the dates set forth in his request for fees.

2. Appellant's request for compensatory damages related to mental anguish and other medically-related matters placed his medical and psychological condition into issue and permitted the agency to investigate whether any such harm or injury was related to his employment. See, e.g., Smith v. Logansport Community School Corp., 139 F.R.D. 637, 649 (N.D. Ind. 1991) ("by asserting a claim for emotional distress [plaintiff] has placed her mental and emotional condition in issue and . . . the defendants are entitled to records concerning any counseling she may have received"); Tramm v. Porter Memorial Hosp., 128 F.R.D. 666, 668 (N.D. Ind. 1989) (same); Lowe v. Philadelphia Newspapers, Inc., 101 F.R.D. 296, 298 (E.D. Pa. 1983) (same).

3. The Commission does not find, however, sufficient information in the record to support an award based on injury to professional standing or injury to relationships at work or with friends. We further note that Mrs. C is not a party to this action; the Commission has held that compensatory damages are available to federal sector complainants under the CRA 1991. See Jackson v. U.S. Postal Service., EEOC Appeal No. 01923399 (Nov. 12, 1992), aff'd, EEOC Request No. 05930306 (Feb. 1, 1993). The Commission thus cannot compensate her for injuries allegedly caused by the agency's actions against her husband.

4. The agency suggests--but offered no evidence in support--that appellant's and Mrs. C's smoking habits caused some of the damages at issue. Appellant states that he stopped smoking in 1988 and denies that Mrs. C ever smoked.

5. Appellant's request included documents submitted in support of his request for recovery of medical expenses incurred from 1989 to October 1991. The Supreme Court's Landgraf decision precludes appellant's recovery of pecuniary damages for pre-Act discrimination.

6. Two of the visits that the agency found "documented" were to a Dr. T, who also treated and operated on appellant for a toe injury. The agency ruled that costs associated with appellant's toe were unrelated to the claims in his complaints and did not include them in his recovery.

7. The record indicates that appellant's January 17, 1993 physician "visit" listed on the agency's final decision actually involved reimbursement for medicine.

8. Appellant listed five separate charges associated with the October 19 visit.

9. Appellant's submittal listed a November 12, 1992 visit with Dr. V, but Dr. V's notes do not refer to a visit on that date.

10. The Commission notes that the agency misread the statement from appellant's prescription drug insurer for prescriptions filled on January 17, 1993. The agency compensated appellant for $19.65 in "non-covered" charges. The form indicates, however, that the insurer only paid .92¢ and that the $19.65 represented an amount deemed by the insurer to be an excess charge for the medicines covered by the prescription. Appellant thus was responsible for $69.88.

11. We note that the agency provided appellant with compensation for a September 15, 1993 visit not listed on appellant's submittal but noted in a statement from appellant's insurer. We further note that the agency reimbursed appellant for 20% of the $260 documented cost of the visit even though the statement indicated that appellant would be responsible for the full amount.