Stephanie Brinkley v. United States Postal Service 05980429 August 12. 1999 Stephanie Brinkley, ) Appellant, ) ) v. ) Request No. 05980429 ) Appeal No. 01953977 William J. Henderson, ) Agency No. 1-E-997-1326-93 Postmaster General, ) Hearing No. 380-94-8152X United States Postal Service,) Agency. ) ) DECISION ON REQUEST FOR RECONSIDERATION On March 4, 1998, Stephanie Brinkley (hereinafter referred to as appellant) timely initiated a request to the Equal Employment Opportunity Commission (Commission) to reconsider the decision in Brinkley v. United States Postal Service, EEOC Appeal No. 01953977 (January 23, 1998). EEOC regulations provide that the Commission may, in its discretion, reconsider any previous decision. 29 C.F.R. §1614.407(a). The party requesting reconsideration must submit written argument or evidence which tends to establish one or more of the following three criteria: new and material evidence is available that was not readily available when the previous decision was issued, 29 C.F.R. §1614.407(c)(1); the previous decision involved an erroneous interpretation of law, regulation, or material fact, or a misapplication of established policy, 29 C.F.R. §1614.407(c)(2); and the decision is of such exceptional nature as to have substantial precedential implications, 29 C.F.R. §1614.407(c)(3). For the reasons set forth below, appellant's request is DENIED. The Commission, however, exercises its discretion and reconsiders the previous decision on its own motion for the reasons discussed below. ISSUE PRESENTED The issue is whether appellant is entitled to an award of front pay. BACKGROUND The previous decision accurately described the relevant facts and procedural history of this case, and is incorporated by reference herein. The salient facts of the case are as follows: In November 1993, appellant filed an EEO complaint alleging race and sex discrimination when she was subjected to a hostile work environment. She further alleged reprisal discrimination when she was issued a letter of warning during a thirty-day detail. Upon completion of the agency's investigation, appellant requested a hearing before an EEOC Administrative Judge (AJ). Following the hearing, the AJ issued a recommended decision (RD) finding hostile environment sexual harassment and reprisal discrimination. As a remedy, the AJ awarded appellant back pay, front pay, and compensatory damages for past and future pecuniary losses and for non-pecuniary losses. In its final decision (FAD), the agency adopted the AJ's recommended findings regarding the merits of appellant's complaint, but modified the recommended remedy. The agency awarded appellant back pay but declined to award front pay. The agency also limited the amount of compensatory damages recommended by the AJ: the agency agreed to award past medical expenses as well as future medical expenses for one year, but denied appellant's request for various out-of-pocket expenses. On appeal, the previous decision affirmed the agency's findings of discrimination but modified the agency's remedy. Noting that the parties did not dispute the awards for back pay and past medical expenses, the previous decision focused on the equitable remedy of front pay as well as compensatory damages, i.e., past and future pecuniary damages (out-of-pocket expenses and future medical expenses) and non-pecuniary damages. The previous decision found that front pay was not an appropriate remedy because appellant was unable to return to work at the agency. With respect to appellant's compensatory damages claim, the previous decision found that appellant had established that she had an injury in fact, i.e., major depressive disorder, chronic; that there was a causal connection between her injury and the agency's discrimination; and that her injury arose solely from the unlawful discrimination. The previous decision awarded appellant $4,110.70 in past pecuniary damages for out-of-pocket expenses; ordered the agency to compensate appellant for documented medical expenses for past care and also for future care for a period of three years from March 22, 1995; and awarded appellant $110,000 in non-pecuniary damages. In her reconsideration request, appellant reiterates her claim for an award of front pay. In its response, the agency contends that the previous decision properly denied front pay as a remedy and asks that appellant's request for reconsideration be denied. ANALYSIS AND FINDINGS The Commission may, in its discretion, reconsider any previous decision when the party requesting reconsideration submits written argument or evidence which tends to establish that at least one of the criteria of 29 C.F.R. §1614.407(c) is met. For a decision to be reconsidered, the request must contain specific information that meets the criteria referenced above. Reinstatement into an appropriate position generally is preferred to an award of front pay. Romeo v. Dept. of the Air Force, EEOC Appeal No. 01921636 (July 13, 1992). If placement into an appropriate position is not possible, however, then the employer must make whole the victim of the discrimination until such placement is possible. See Tyler v. United States Postal Service, EEOC Request No. 05870340 (February 1, 1998). The Commission has stated that front pay may be awarded in lieu of reinstatement when: (1) no position is available; (2) a subsequent working relationship between the parties would be antagonistic; or (3) the employer has a record of long-term resistance to anti-discrimination efforts. See Cook v. United States Postal Service, EEOC Appeal No. 01950027 (July 17, 1998). The fact that front pay is awarded in lieu of reinstatement implies that the complainant is able to work but cannot do so because of circumstances external to the complainant. Id. The previous decision found that appellant had presented medical evidence establishing that she was unable to return to work at the GMF or any other postal facility. Because appellant was unavailable to work for the agency, the previous decision concluded that appellant was not entitled to an award of front pay. Having carefully reviewed the previous decision, the relevant case law, and the evidence of record in light of this issue, the Commission finds that the previous decision properly determined that appellant was not entitled to front pay. Because appellant failed to demonstrate any error in the previous decision and because she failed to meet any of the remaining criteria for reconsideration, her request for reconsideration is DENIED. The Commission nonetheless finds it appropriate to exercise its discretion to reconsider the matter on its own motion. As noted above, front pay is an equitable remedy that compensates an individual when reinstatement is not possible in certain limited circumstances. By contrast, lost earning capacity represents a loss in one's future earning power and is distinct from the issue of front pay. That is, an award for the loss of future earning capacity considers the effect that appellant's injury will have on her ability in the future to earn a salary comparable with what she earned before the injury. McKnight v. General Motors Corp., 973 F.2d 1366, 1370 (7th Cir. 1992); Williams v. Pharmacia Inc., 956 F. Supp. 1457, 1467 (N.D. Ind. 1996); Carpenter v. Dept. of Agriculture, EEOC Appeal No. 01945652 (July 17, 1995). An award of damages for lost earning capacity comports with Title VII's goal of providing make-whole relief to the victims of discrimination. Williams, 956 F. Supp. at 1466 (citing Albemarle Paper Co. v. Moody, 422 U.S. 405, 417-19 (1975)). In Carpenter, supra, the Commission stated: Damages for loss of future earning capacity are generally awarded in personal injury cases, but also have been awarded in employment discrimination cases. 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.' 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.' 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 [fact finder] to arrive at a pecuniary value for the loss.' (citations omitted) The Commission previously has awarded future pecuniary damages for the loss of future earning capacity. Finlay v. United States Postal Service, EEOC Appeal No. 01942985 (April 29, 1997). Such awards are subject to the statutory cap for compensatory damages-- in this case $300,000. 42 U.S.C. §1981a(b)(3)(D). Appellant presented medical evidence establishing that she is unable to return to work at the agency as a direct result of the unlawful discrimination. Appellant also submitted evidence to establish her economic loss. A Vocational Rehabilitation Specialist (VRS) evaluated the jobs outside of the agency that appellant could qualify for and do given her skills and experience at that time. The VRS identified three types of clerk positions and an Office Manager position, paying from $20,400 to $42,474 per year. Because appellant had begun working towards a Bachelor of Arts in Psychology, the VRS also indicated that appellant would be eligible for several other positions ranging from $24,000 to $45,600 per year if she completed her degree. The VRS' findings were forwarded to an Economist. Using life expectancy tables, the Economist assumed that appellant would continue working until the year 2018 when she reaches age 65. The Economist determined the following: (1) appellant's wages had she continued to work for the agency, less taxes and other deductions; (2) appellant's mitigating income from other work based on the VRS' data regarding other work for which she presently was qualified; and (3) losses with respect to the Thrift Savings Plan and Retirement Benefits. Using a net discount rate to adjust for inflation and present value, the Economist determined appellant's future loss to be $759,116. The findings of the VRS and the Economist differ markedly in premise. The VRS took into account the facts that appellant's prospects were not necessarily limited to hourly-wage jobs, and that appellant's continuing education would afford her other, better paying career options. For example, the VRS identified several hourly-wage jobs that appellant could fill immediately (such as General Office Clerk), but also identified several higher-salaried positions appellant could fill in the future (such as Social Worker or Personnel Manager). By contrast, the Economist depicted a "worst case" scenario in which appellant's prospects would be limited to the lower-paying hourly-wage jobs, without regard to appellant's pursuit of a college degree. Having reviewed the reports of the VRS and the Economist, the Commission finds that appellant is entitled to compensation for loss of earning capacity through the year 2000, a period of roughly six years from when appellant stopped work. All indications in the record are that by the year 2000, appellant will have completed her education and re-entered the work force. Beyond the year 2000, the substantial number of variables involved in assessing appellant's continuing loss of wage-earning capacity, if any, simply become too speculative. Ordering the agency to compensate appellant for her economic loss through the year 2000 therefore fully expresses the agency's responsibility in this regard. According to the Economist's report, the amount of appellant's economic losses through the year 2000 totals $152,034. This amount represents the difference between what appellant's wage-earning capacity prior to the injury inflicted by the discrimination and her wage-earning capacity subsequent to the injury (salary as an agency employee less expected salary in new employment). The agency will be ordered to pay appellant this amount as future pecuniary damages. CONCLUSION After a review of appellant's request for reconsideration, the previous decision, and the entire record, the Commission finds that appellant's request fails to meet the criteria of 29 C.F.R. §1614.407(c), and therefore is DENIED. The Commission having reconsidered the matter on its own motion, the decision in EEOC Appeal No. 01953977 is MODIFIED as set forth in the decision above and in the Order of the Commission, below. There is no further right of administrative appeal from a decision of the Commission on this request for reconsideration. ORDER The agency is ORDERED to take the following remedial actions: Within sixty (60) days of the date on which this decision becomes final, the agency shall tender to appellant $4,117.40 in past pecuniary damages; $152,034 in future pecuniary damages; and $110,000 in non-pecuniary damages; a total of $266,151.40. If it has not already done so, the agency shall also take the following actions: (1) The agency shall determine the appropriate amount of back pay with interest and other benefits due appellant for the period between April 14, 1994 and March 22, 1995, pursuant to 29 C.F.R. §1614.501, no later than sixty (60) calendar days after the date this decision becomes final. Appellant shall cooperate in the agency's efforts to compute the amount of back pay and benefits due, and shall provide all relevant information requested by the agency. If there is a dispute regarding the exact amount of back pay and/or benefits, the agency shall issue a check to the appellant for the undisputed amount within sixty (60) calendar days of the date the agency determines the amount it believes to be due. The appellant may petition for enforcement or clarification of the amount in dispute. The petition for clarification or enforcement must be filed with the Compliance Officer, at the address referenced in the statement entitled "Implementation of the Commission's Decision." (2) The agency shall compensate appellant for reasonable and documented medical expenses for past care as well as expenses for future care for a period of three years from March 22, 1995. (3) The agency shall conduct training for Employee A (the subordinate employee who harassed appellant) as well as all supervisory and managerial personnel at the General Mail Facility in Anchorage, Alaska, which addresses these employees' responsibilities' equal employment opportunity law. The training shall place special emphasis on the prevention and elimination of sexual harassment, including the agency's duty to immediately investigate all complaints of sexual harassment. (4) The agency shall post a notice of the finding of discrimination, as set forth in the below-entitled paragraph, "Posting Order." 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 supporting documentation of the agency's calculation of back pay and other benefits due appellant, including evidence that the corrective action has been implemented. POSTING ORDER (G1092) The agency is ORDERED to post at its General Mail Facility in Anchorage, Alaska, copies of the attached notice. Copies of the notice, after being signed by the agency's duly authorized representative, shall be posted by the agency within thirty (30) calendar days of the date this decision becomes final, and shall remain posted for sixty (60) consecutive days, in conspicuous places, including all places where notices to employees are customarily posted. The agency shall take reasonable steps to ensure that said notices are not altered, defaced, or covered by any other material. The original signed notice is to be submitted to the Compliance Officer at the address cited in the paragraph entitled "Implementation of the Commission's Decision," within ten (10) calendar days of the expiration of the posting period. 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 (K0595) 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. If the agency does not comply with the Commission's order, appellant may petition the Commission for enforcement of the order. 29 C.F.R. §1614.503(a). Appellant 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. §§ 1614.408, 1614.409, and 1614.503(g). Alternatively, appellant 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. §§ 1614.408 and 1614.409. 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)(Supp. V 1993). If appellant files a civil action, the administrative processing of the complaint, including any petition for enforcement, will be terminated. See 29 C.F.R. §1614.410. 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 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: August 12. 1999 Date Frances M. Hart Executive Officer Executive Secretariat This Notice is posted pursuant to an Order by the United States Equal Employment Opportunity Commission dated ________________________ which found that a violation of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. §2000e et seq., has occurred at this facility. Federal law requires that there be no discrimination against any employee or applicant for employment because of the person's RACE, COLOR, RELIGION, SEX, NATIONAL ORIGIN, AGE, or PHYSICAL or MENTAL DISABILITY with respect to hiring, firing, promotion, compensation, or other terms, conditions or privileges of employment. The United States Postal Service, Anchorage, Alaska, General Mail Facility supports and will comply with such Federal law and will not take action against individuals because they have exercised their rights under law. The United States Postal Service, Anchorage, Alaska, General Mail Facility was found to have discriminated against the individual affected by the Commission's finding on the basis of her sex when she was sexually harassed by a male employee. The United States Postal Service, Anchorage, Alaska, General Mail Facility was ordered to determine the amount of back pay, with interest, and other benefits due the affected individual; pay the affected individual compensatory damages in the amount of $266,151.40; provide training to the harasser and management officials; and pay the affected individual's reasonable attorney fees and costs. The United States Postal Service, Anchorage, Alaska, General Mail Facility will not in any manner restrain, interfere, coerce, or retaliate against any individual who exercises his or her right to oppose practices made unlawful by, or who participates in proceedings pursuant to, Federal equal employment opportunity law. _______________________________ Date Posted: ___________________ Posting Expires: ________________ 29 C.F.R. Part 1614