Sheila Woodard v. Department of Labor
01A11604
October 11, 2002
.



Sheila Woodard,
Complainant,

v.

Department of Labor
Agency.

Appeal No. 01A11604

Agency No. 411088



DECISION

Pursuant to 29 C.F.R. § 1614.405, the Commission accepts the complainant's
appeal from the agency's final decision in the above-entitled matter.

Complainant filed a complaint in which she alleged that the agency
discriminated against her on the bases of race, sex, and age when,
in 1994,  it failed to select her for two positions for which she
had applied. The agency's final decision found no discrimination.
Complainant appealed the agency's final decision to the Commission.
In EEOC Appeal No. 01970288, the Commission found that complainant had
been discriminated against on the basis of race with respect to one
of the non-selections and ordered, in pertinent part, that the agency
conduct a supplemental investigation into complainant's entitlement to
compensatory damages and issue a final agency decision awarding proven
compensatory damages.

The agency conducted a supplemental investigation.  In a letter addressed
to complainant and dated  November 30, 2000, the agency set forth its
final decision on compensatory damages.  The letter summarized the
investigation results as follows:

. . . you have provided sufficient testimony in support of emotional
distress, mental anguish, and loss of enjoyment of life.  You presented
evidence that you experienced mood swings, loss of sleep, weight loss,
and during the same time period took 6-months off from work.  You sought
professional treatment which included medication and therapy sessions.
Furthermore, you have documented ... Major Depression, and related
symptoms, with statements by your treating physician and clinical social
worker.  In sum, the evidence provided adequately documents emotional
distress, mental anguish, and loss of enjoyment of life as a result of
stress caused by the workplace.

The agency concluded that complainant was entitled to an award of
$40,000 in non-pecuniary compensatory damages.   From that decision,
complainant brings the instant appeal.

Section 102(a) of the Civil Rights Act of 1991 (the CRA 1991), Stat. 1071,
Pub. L. No. 102-166, codified as 42 U.S.C. § 1981a, authorizes an award of
compensatory damages as part of the "make whole" relief for intentional
discrimination in violation of Title VII of the Civil Rights Act of
1964, as amended.  Section 1981a(b)(2) indicates that compensatory
damages do not include back pay, interest on back pay, or any other
type of equitable relief authorized by Title VII.  Section 1981a(b)(3)
limits the total amount of compensatory damages that may be awarded
to each complaining party for future pecuniary losses, emotional pain,
suffering, inconvenience, mental anguish, loss of enjoyment of life, and
other nonpecuniary losses, according to the number of persons employed
by the respondent employer.  The limit for an employer with more than 500
employees, such as the agency, is $300,000.  42 U.S.C. § 1981a(b)(3)(D).

If a complainant alleges that he or she is entitled to compensatory
damages and the agency or Commission enters a finding of discrimination,
the complainant is given an opportunity to submit evidence establishing
his or her claim.  To receive an award of compensatory damages,
a complainant must demonstrate that he or she has been harmed as a
result of the agency's discriminatory action; the extent, nature, and
severity of the harm; and the duration or expected duration of the harm.
Rivera v. Department of the Navy, EEOC Appeal No. 01934157 (July 22,
1994) req. for recons. den. EEOC Request No. 05940927 (December 11, 1995);
Compensatory and Punitive Damages Available Under Section 102 of the Civil
Rights Act of 1991, EEOC Notice No. 915.002 (July 14, 1992), at 11-12, 14.

Compensatory damages may be awarded for the past pecuniary losses,
future pecuniary losses, and non-pecuniary losses which are directly or
proximately caused by the agency's discriminatory conduct.  Compensatory
and Punitive Damages Available Under Section 102 of the Civil Rights
Act of 1991, EEOC Notice No. 915.002 (July 14, 1992), at 8.   There are
no precise formulae for determining the amount of damages payable for
non-pecuniary losses.  Damage awards for non-pecuniary losses that
have been assessed by juries and courts have varied substantially from
one another.  Id. at 13.  However, an award of compensatory damages
for non-pecuniary losses, including emotional harm, should reflect
the extent to which the respondent's discriminatory action directly or
proximately caused the harm and the extent to which other factors also
caused the harm.  Id. at 11-12.  An award of compensatory damages for
non-pecuniary losses should also reflect the nature and severity of the
harm and the duration or expected duration of the harm.  Id. at 14.

Several Commission decisions have awarded compensatory damages in cases
somewhat similar to complainant's. See, e.g., Barrett v. United States
Postal Service, EEOC Appeal No. 01984091 (July 24, 2001) ($35,000.00
in non- pecuniary damages where the agency's discriminatory denial of
a transfer led to depression, sleeplessness and mental anguish over
a two year period); Mooney v. United States Department of Agriculture,
EEOC Appeal No. 01974494 (May 24, 2000) ($20,000 in non-pecuniary damages
where complainant suffered from depression and anxiety and a short period
of diagnosed Major Depression, due to the agency's discrimination);
Johnson v. Department of Interior, EEOC Appeal No. 01961812 (June 18,
1998) ($35,000 for frustration and anger which led to irritability, due
discriminatory work assignments, a fully successful performance rating,
and harassment).

After a review of the record and the cited authorities we conclude
that an award of $40,000 adequately compensates complainant for the
damages she suffered which have been shown to be causally related to
the discriminatory non-selection to which she was subjected.  We find
persuasive the agency's argument that the major depression complainant
suffered is not fully compensable because it was caused by complainant's
belief that, in 1994, she was twice the victim of discrimination at her
employer's hands.  Yet, only one of the 1994 non-selections was ultimately
proven to be discriminatory and the agency can be held liable only for
damages resulting from that non-selectioin.

ORDER (D0900)

The agency is ordered to take the following remedial action:

 1. Award the sum of forty thousand dollars ($40000.00) as compensatory
 damages;

The agency is further directed to submit a report of compliance, as
provided in the statement entitled "Implementation of the Commission's
Decision."  The report shall  include evidence that the corrective action
has been implemented.

IMPLEMENTATION OF THE COMMISSION'S DECISION (K0501)

Compliance with the Commission's corrective action is mandatory.
The agency shall submit its compliance report within thirty (30)
calendar days of the completion of all ordered corrective action. The
report shall be submitted to the Compliance Officer, Office of Federal
Operations, Equal Employment Opportunity Commission, P.O. Box 19848,
Washington, D.C.  20036.  The agency's report must contain supporting
documentation, and the agency must send a copy of all submissions to
the complainant.  If the agency does not comply with the Commission's
order, the complainant may petition the Commission for enforcement
of the order.  29 C.F.R. § 1614.503(a).  The complainant also has the
right to file a civil action to enforce compliance with the Commission's
order prior to or following an administrative petition for enforcement.
See 29 C.F.R. §§ 1614.407, 1614.408, and 29 C.F.R. § 1614.503(g).
Alternatively, the complainant has the right to file a civil action on
the underlying complaint in accordance with the paragraph below entitled
"Right to File A Civil Action."  29 C.F.R. §§ 1614.407 and 1614.408.
A civil action for enforcement or a civil action on the underlying
complaint is subject to the deadline stated in 42 U.S.C. 2000e-16(c)
(1994 & Supp. IV 1999).  If the complainant files a civil action, the
administrative processing of the complaint, including any petition for
enforcement, will be terminated.  See 29 C.F.R. § 1614.409.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M0701)

The Commission may, in its discretion, reconsider the decision in this
case if the complainant or the agency submits a written request containing
arguments or evidence which tend to establish that:

 1. The appellate decision involved a clearly erroneous interpretation
 of material fact or law; or

 2. The appellate decision will have a substantial impact on the policies,
 practices, or operations of the agency.

Requests to reconsider, with supporting statement or brief, must be filed
with the Office of Federal Operations (OFO) within thirty (30) calendar
days of receipt of this decision or within twenty (20) calendar days of
receipt of another party's timely request for reconsideration. See 29
C.F.R. § 1614.405; Equal Employment Opportunity Management Directive for
29 C.F.R. Part 1614 (EEO MD-110), 9-18 (November 9, 1999).  All requests
and arguments must be submitted to the Director, Office of Federal
Operations, Equal Employment Opportunity Commission, P.O. Box 19848,
Washington, D.C. 20036.  In the absence of a legible postmark, the
request to reconsider shall be deemed timely filed if it is received by
mail within five days of the expiration of the applicable filing period.
See 29 C.F.R. § 1614.604.  The request or opposition must also include
proof of service on the other party.

Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely, unless extenuating circumstances
prevented the timely filing of the request.  Any supporting documentation
must be submitted with your request for reconsideration.  The Commission
will consider requests for reconsideration filed after the deadline only
in very limited circumstances.  See 29 C.F.R. § 1614.604(c).

COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (S0900)

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.    If you file a civil action, you must name as
the defendant in the complaint the person who is the official agency head
or department head, identifying that person by his or her full name and
official title.  Failure to do so may result in the dismissal of your
case in court.  "Agency" or "department" means the national organization,
and not the local office, facility or department in which you work. If you
file a request to reconsider and also file a civil action, filing a civil
action will terminate the administrative processing of your complaint.

RIGHT TO REQUEST COUNSEL (Z1199)

If you decide to file a civil action, and if you do not have or cannot
afford the services of an attorney, you may request that the Court appoint
an attorney to represent you and that the Court permit you to file the
action without payment of fees, costs, or other security.  See Title VII
of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq.;
the Rehabilitation Act of 1973, as amended, 29 U.S.C. §§ 791, 794(c).
The grant or denial of the request is within the sole discretion of
the Court.  Filing a request for an attorney does not extend your time
in which to file a civil action.  Both the request and the civil action
must be filed within the time limits as stated in the paragraph above
("Right to File A Civil Action").

FOR THE COMMISSION:


______________________________
Carlton M. Hadden, Director
Office of Federal Operations

October 11, 2002
__________________
Date