Deborah A. Davis v. Department of Veterans Affairs 01A01256 03-05-03 . Deborah A. Davis, Complainant, v. Anthony J. Principi, Secretary, Department of Veterans Affairs, Agency. Appeal No. 01A01256 Agency No. 95-0726 DECISION INTRODUCTION Deborah A. Davis (complainant) initiated a timely appeal to the Equal Employment Opportunity Commission (EEOC or Commission) from the final agency decision (FAD) of the Department of the Veterans Affairs (agency), concerning her complaint of 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 hereby accepts the appeal in accordance with 29 C.F.R. § 1614.405. ISSUE PRESENTED The issue on appeal is whether the agency properly determined that complainant was entitled to payment of $5,000.00 in non-pecuniary damages and $694.97 in administrative costs. BACKGROUND Complainant filed a formal complaint on December 21, 1994, alleging that she had been discriminated against based on race (African American), color (Black), sex and in reprisal for prior EEO activity when the Acting Chief of the Social Work Service decided not to upgrade her position to Social Work Associate after she completed her college degree. The agency complied with all procedural and regulatory prerequisites, and on October 6, 1997, an EEOC Administrative Judge (AJ) issued a Recommended Decision (RD) finding discrimination based on reprisal when the agency failed to upgrade complainant's Social Work Aid position to the Associate level. In its FAD, the agency determined that the AJ erred when she found that complainant's former supervisor (S1) was the de facto decision maker in the denial of complainant's upgrade and that S1's feelings concerning complainant's complaints against her colored her recommendations. The agency asserted that no guarantee existed that complainant's position would have been upgraded even if the responsible management official had recommended the upgrade. Complainant filed an appeal with the Commission, challenging the agency's finding of no discrimination. In EEOC Appeal No. 01992251 (February 26, 1999), the Commission reversed the agency's final decision. The Commission further ordered the agency to conduct a supplemental investigation into the question of whether complainant should be awarded compensatory damages. During the supplemental investigation, complainant asserted that she was entitled to future pecuniary losses of $6,192.00 in counseling and medication expenses, non pecuniary losses of $40,728.63, and costs of $1,067.78. Complainant provided a statement from a Licensed Professional Counselor (LPC) (the Counselor), AMC Center for Wellness, stating that complainant presented with symptoms of Post Traumatic Stress Disorder (PTSD), moderate to marked depression, and abnormal anxiety. The Counselor also explained that complainant had difficulty sleeping, short-term memory loss, fatigue, irritability, lack of concentration, sadness, and feelings of worthlessness and hopelessness. The Counselor further stated that she attributed complainant's condition to the trauma she experienced at the agency, and maintained that complainant would not be able to hold employment for two years. Complainant also presented evidence that she divorced her husband during this period and sent her youngest daughter to live with her older children. The agency issued a second FAD on October 26, 1999, finding that complainant was entitled to $5,000.00 in non-pecuniary damages and $694.97 in administrative costs. The agency observed that complainant did not seek counseling until more than four years after the discriminatory event. It noted that, since the event, complainant had resigned from her position, attended graduate school, obtained a master degree in social work, applied for many positions at the agency, and worked as a substitute teacher. The agency found that many intervening factors, particularly complainant's lack of employment, affected complainant prior to her attending counseling. The agency determined that it was highly unlikely that complainant's failure to receive an upgrade of her position caused her PTSD. The agency also noted that the Counselor attributed complainant's depression to both her employment at the agency and her financial situation following her unemployment. The agency found that the duration of complainant's condition appeared to be approximately six years. This appeal followed. On appeal, complainant claims that she is entitled to past pecuniary losses of $632.85 to include moving expenses, future pecuniary losses of $39,028 to include counseling, medication, and living expenses for two years, and non-pecuniary losses of $40,000. She also claims $1,067.78 in administrative costs. The complainant argues that the agency incorrectly assigned fifty percent of the expenses to the discriminatory event. She provides three statements from her Counselor which explain PTSD in persons denied appropriate compensation and promotion, as well as other evidence supporting her expenses. Complainant again states that her severe emotional distress, caused by the agency's discrimination, has had a catastrophic effect on her life. She notes that the agency admits in its FAD that complainant's condition appeared to be approximately six years in duration. In its response, the agency argues that the Commission should not consider complainant's newly submitted evidence. It states that, with only thirty days to respond, a mechanism does not exist for the agency to investigate and verify the evidence submitted for the first time on appeal. The agency notes that it conducted a supplemental investigation, and complainant, through her counsel, had ample opportunity to present relevant evidence. The agency requests that the Commission decline to consider the evidence offered by complainant for the first time on appeal and affirm its FAD. ANALYSIS AND FINDINGS Compensatory Damages A. Legal Standards for an Award of Compensatory Damages Pursuant to section 102(a) of the Civil Rights Act of 1991, a complainant who establishes his or her claim of unlawful discrimination may receive, in addition to equitable remedies, compensatory damages for past and future pecuniary losses (i.e., out of pocket expenses) and non-pecuniary losses (e.g., pain and suffering, mental anguish). 42 U.S.C. § 1981a(b)(3). The particulars of what relief may be awarded, and what proof is necessary to obtain that relief, are set forth in detail in EEOC Notice No. N 915.002, Compensatory and Punitive Damages Available Under Section 102 of the Civil Rights Act of 1991 (July 14, 1992). Briefly stated, the complainant must submit evidence to show that the agency's discriminatory conduct directly or proximately caused the losses for which damages are sought. Id. at 11-12, 14; Rivera v. Department of the Navy, EEOC Appeal No. 01934157 (July 22, 1994). The amount awarded should reflect the extent to which the agency's discriminatory action directly or proximately caused harm to the complainant and the extent to which other factors may have played a part. EEOC Notice No. N 915.002 at 11-12. The amount of non-pecuniary damages should also reflect the nature and severity of the harm to the complainant, and the duration or expected duration of the harm. Id. at 14. In Carle v. Department of the Navy, the Commission explained that "objective evidence" of non-pecuniary damages could include a statement by the complainant explaining how he or she was affected by the discrimination. EEOC Appeal No. 01922369 (January 5, 1993). Statements from others, including family members, friends, and health care providers could address the outward manifestations of the impact of the discrimination on the complainant. Id. The complainant could also submit documentation of medical or psychiatric treatment related to the effects of the discrimination. Id. The Commission applies the principle that "a tortfeasor takes its victims as it finds them." 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 this entitlement. Wallis, EEOC Appeal No. 01950510 (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. Terrell v. Department of Housing and Urban Development, EEOC Appeal No. 01961030 (October 25, 1996); EEOC Notice No. N 915.002 at 12. B. Nexus Between Alleged Harm and Discrimination Complainant testified that she “suffered mental anguish and disappointment in the system itself.” She also stated that she had to send her youngest daughter to live with her older children due to her inability to support her daughter financially. She explained that she divorced her husband, who was also a government employee, and stated that she believed that the discrimination had an impact on her marriage, as both she and her husband feared retaliation. Complainant asserted that she applied to numerous positions with the agency, but she had not been rehired. She further testified that she had been diagnosed with PTSD. The record reflects that complainant worked as a substitute teacher after she left agency employment. Complainant's ex-husband averred that, after they divorced, he maintained contact with complainant and witnessed the undue stress the discrimination in this matter caused complainant. He stated that she expressed her feeling that the agency “had let her down and had no concerns about her twenty plus years of employment” with the government. He further stated that, during the period she was still employed by the agency, she told him that she felt trapped, used, and rejected by the agency. He explained that, during their marriage, complainant became withdrawn and their relationship began to waiver because complainant would rarely communicate with him. He averred that complainant appeared depressed and changed dramatically from the person he had married nearly two decades earlier. Complainant also provided affidavits from her eldest son and her youngest daughter. Both described complainant's depression and financial strain after complainant's resignation. Each one also explained the hardships their family endured because of the “ordeal that [complainant was] facing” with the agency and the discrimination case. The record reflects that complainant sought counseling four years after the discriminatory event.<1> The Counselor diagnosed complainant with PTSD and Major Depression Recurrent. In evaluations, dated May 31, 1999 and June 24, 1999, the Counselor stated that, after seeing complainant for several sessions, she determined that complainant “suffered severe emotional distress as a result of the apparent discrimination she suffered during the time she was employed with the [agency].” She further reported that, due to the denial of a promotion, complainant became depressed, her short term memory was impaired, and she had difficulty making decisions. The Counselor noted that, following her resignation, complainant experienced financial hardship and had not obtained a position where she could use her skills, and she opined that complainant could not be employed due to her severe symptoms of depression. She asserted that, in order for complainant to become a productive citizen, complainant would need continuous psychotherapy and medication management for two years, as well as financial assistance because the stress of bill payments and living expenses were part of complainant's overall mental anguish. She further reported that, depending on complainant's quality of care, use of medication, and ability to learn to manage stress, complainant's prognosis is fair to good. On appeal, complainant includes three followup letters from the Counselor, two dated January 5, 2000 and one dated January 14, 2000, and a record of her visits and payment history. In her first January 5, 2000 letter, the Counselor stated that complainant was deteriorating because she had not found employment. She further reported that complainant's medications were increased due to the recurrence and increase of the depression and PTSD. The second January 5, 2000 letter reiterated the information provided in the Counselor's June 24, 1999 letter. Finally, in her January 14, 2000 letter, the Counselor explained the symptoms of PTSD and the reasons complainant may have developed PTSD in employment. She cited to Leopold Bellack, M.D., Crises and Special Problems (1994), to explain that job loss is a frequent threat and traumatic occurrence in the lives of many people. She stated that, although complainant could not afford to take the medication and feared discrimination if it became known that she was on psychotropic medication, complainant still was in need of the medication. She reported that complainant began suffering from several physical illnesses, including sinus and lung problems, gastrointestinal problems, high cholesterol, and nervous stomach, and that complainant had colon resection surgery, followed by pneumonia, and additional surgery.<2> The agency asserts that complainant's additional evidence in support of her contention that she is entitled to a higher award of compensatory damages and costs should not be considered. As a general rule, no new evidence will be considered on appeal unless there is an affirmative showing that the evidence was not reasonably available prior to or during the investigation. EEO Management Directive for 29 C.F.R. Part 1614 (as revised, November 9, 1999) (MD-110), at 9-15. See 29 C.F.R. § 1614.404(b). The Commission will address whether complainant has made an affirmative showing that the evidence was not reasonably available during the investigation in this and the Calculations of Damages sections. The Commission finds that complainant has documented, through the Counselor's May 31, 1999 and June 24, 1999 evaluations and various affidavits, the mental effects of the agency's discrimination. The record reflects that, prior to her resignation, complainant became withdrawn from her family and depressed. The affidavit submitted by complainant's ex-husband further indicated that a severe strain was placed on complainant's relationship with him and her children, and that complainant's enjoyment of life has been diminished. The Counselor's evaluations reflect that the agency's conduct resulted in complainant requiring counseling for her major depression, difficulty sleeping, short-term memory loss, fatigue, irritability, lack of concentration, sadness, and feelings of worthlessness and hopelessness. We note that complainant has failed to provide evidence from a medical doctor regarding her physical illnesses. Based on the objective evidence reviewed above, we find that complainant proved that she experienced significant emotional distress which was caused, in part, by the agency's failure to upgrade her position to Social Work Associate after she completed her college degree. We note that the evidence reflects that complainant's resignation from her position at the agency and the financial strain caused by her unemployment also affected her psychological health. In this respect, the evaluation from the Counselor reveals that job loss is a frequent threat and traumatic occurrence in the lives of many people and can result in PTSD. Since complainant is entitled to recover damages only for injury caused by the proven discrimination, complainant cannot recover damages for the PTSD because she failed to prove that the PTSD resulted from the agency's failure to upgrade her position. C. Calculation of Damages Payable 1. Past Pecuniary Damages In Wallis, the Commission held that a complainant is entitled to recover the full amount of the fees charged for any medical services she received in connection with the injury caused by the agency's discriminatory action. EEOC Appeal No. 01950510. Here, complainant provides a copy of her billing sheet for the counseling she received prior to the agency's supplemental investigation and requests $632.85 for costs she incurred moving her household goods from Texas to Alabama. After a careful review of the record, we find that the billing sheet submitted by complainant on appeal was reasonably available to her prior to the supplemental investigation. With respect to complainant's request for costs incurred moving her household goods from Texas to Alabama, we find that complainant has failed to prove a nexus between the agency's failure to promote her and her decision to move. Accordingly, complainant's request for past pecuniary damages is denied. 2. Future Pecuniary Damages The Counselor stated in her evaluations that complainant will continue to need counseling. Specifically, the Counselor reported that, due to the length and severity of complainant's symptoms, she will require two years of counseling and psychotropic medication. She further recommends that complainant not be employed full time for at least two years. She reports that, in cases of severe depression and PTSD, patients require adequate time, normally two years, to heal both physically and emotionally. We note again that the Counselor described complainant's prognosis as fair to good. Complainant asserted during the agency's supplemental investigation and has provided proof on appeal that the fee charged for each counseling session is $79.00. Complainant also presented evidence that she will need therapy twice a month in the first year of treatment and once a month in the second year of treatment. We note that, while complainant submitted additional evidence from the Counselor, the record reflects that the Counselor's initial evaluation, dated May 31, 1999, contained sufficient information for the agency to determine future pecuniary losses. Furthermore, the additional evidence regarding complainant's ongoing medical status would not have been available during the investigation. Therefore, based on the record before us, we find that it is reasonable for complainant to require a total of 36 sessions of therapy, totaling $2,844.00. During the agency's supplemental investigation, complainant estimated the cost of her medication to be $100.00 per month, and on appeal, she provides a pharmacist's estimate of $158.19 per month for the medication. We find, however, that complainant has failed to provide sufficient evidence to prove that she was taking the medications or intended to take the medications, as she has not provided receipts for medication she has taken or a prescription from a medical doctor. For this reason, complainant's request that the agency pay for her medication is denied. Complainant requests living expenses in the amount of $32,836.00 because the Counselor recommended that complainant not be employed for a period of two years. The Commission is not persuaded, however, that the agency's failure to upgrade complainant's position is the cause for complainant's inability to find additional employment. We note that complainant resigned from her position with the agency, and there has been no finding of a constructive discharge. Accordingly, the agency is directed to pay complainant the amount of $2,844.00 for complainant's future medical expenses. 3. Non-Pecuniary Damages We now turn to the issue of whether the agency's award of $5,000 in non-pecuniary compensatory damages was adequate. 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. Loving v. Department of the Treasury, EEOC Appeal No. 01955789 (August 29, 1997). It should likewise be consistent with amounts awarded in similar cases. Hogeland v. Department of Agriculture, EEOC Appeal No. 01976440 (June 14, 1999). Complainant requests $40,000 in non-pecuniary damages. She has provided evidence, through the Counselor's evaluations and various affidavits, of the effects of the agency's discrimination. Complainant has not made an affirmative showing that the evidence provided in the Counselor's January 5, 2000 and January 14, 2000 evaluations was not reasonably available to her during the investigation. We note that the Counselor's evaluations, dated May 31, 1999 and June 24, 1999, provide sufficient information upon which the Commission can render a decision as to complainant's non-pecuniary damages. Based on the objective evidence reviewed above, we find that complainant proved that she experienced severe emotional distress which was caused, in part, by the agency's failure to upgrade her position to Social Work Associate after she completed her college degree. The Commission notes that the agency conceded in its FAD that complainant's condition appeared to be approximately six years in duration. Taking into account the evidence of non-pecuniary damages submitted by the complainant, the Commission finds that complainant is entitled to non-pecuniary damages in the amount of $20,000.00. See 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); Colwell v. United States Postal Service, EEOC Appeal No. 01985789 (June 13, 2001) (Commission awarded $20,000.00 in non-pecuniary damages for complainant's depression and emotional distress, which manifested themselves in crying spells, insomnia, headaches, anxiety attacks, constant mood swings, and low self esteem, and for which complainant received psychological treatment; loss of credit standing and loss of professional standing); Yue Lee Wan v. United States Postal Service, EEOC Appeal No. 01995204 (July 11, 2001) ($15,000 awarded where there was loss of marital harmony, emotional distress, depression, and inability to sleep). Our determination considers the emotional symptoms described by complainant, her ex-husband, her children, and the Counselor in her May 31, 1999 and June 24, 1999 evaluations. Costs Although the only recoverable costs cited in the regulations are for reporting fees, expert witnesses, and copying, the Commission has held that recoverable costs may include reasonable out-of-pocket expenses incurred during the normal course of representation. See EEO MD-110, at 7-5. Recoverable expenditures include costs associated with clerical work, postage, and telephone calls, as well as travel expenses, including air fare, hotel accommodations, meals, and car rental. To be reimbursed for incurred costs, the fee applicant must submit adequate documentation in support of the expenses incurred, e.g., copies of telephone bills or receipts. The AJ awarded complainant administrative costs for attending the hearing. Complainant requests $1,067.78 in costs to include $14.29 for food, $610.40 for travel, $237.72 for lodging, and $205.37 for postage and phone calls. The agency awarded complainant $694.97 for food, travel, postage and phone calls. The agency denied the following costs: one day of a car rental, one night at a Days Inn, room and board for four days, gasoline for which complainant provided no receipts, and two days of parking. The agency denied costs which were attributable to complainant's extended stay of one day in Texas and which were not proven with receipts. Complainant contends that the costs disallowed by the agency were ordinary and necessary. She asserts that she should be reimbursed $43.98 for one day of the car rental, $57.72 for one night at a Days Inn, and $10.00 for parking. She explains that, by extending her stay in Texas by one day, she saved $280.00 by taking a less expensive flight. We find that complainant has shown that her decision to remain in Texas one more day resulted in an overall savings, and accordingly she should be compensated $110.70 for these expenses. In addition, complainant provides new evidence regarding her four day room and board with a friend. We find, however, that this new evidence was reasonably available to complainant prior to the supplemental investigation, and therefore deny this cost. Finally, complainant contends she is entitled to $48.00 for gasoline, even though she did not provide receipts for this expense. The Commission finds that this cost was properly denied by the agency because complainant failed to provide sufficient supporting documentation. Accordingly, the agency shall pay complainant an additional $110.70 for costs incurred during the hearing. CONCLUSION Accordingly, the agency's decision is MODIFIED and REMANDED for further processing in accordance with this decision and the ORDER below. ORDER The agency is ordered to take the following remedial actions: 1. Within sixty (60) days from the date this decision becomes final, the agency shall pay complainant: $2,844.00 for future pecuniary damages; $20,000 for non-pecuniary compensatory damages; and $805.67 for administrative costs incurred during the hearing. 2. 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 and other benefits due complainant, including evidence that the corrective action has been implemented. ATTORNEY'S FEES (H0900) If complainant 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. 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 (R0900) 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 within ninety (90) calendar days from the date that you receive this decision. 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 (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 __03-05-03________________ Date 1 Complainant asserted that she did not seek counseling earlier because she could not afford to do so. 2 The Counselor appears to have reviewed complainant's medical evidence in preparing her evaluation. �