U.S. Department of Defense, Camp Lejeune Dependents Schools (Agency) and Lejeune Education Association (Union)

[ v57 p12 ]

57 FLRA No. 6

U.S. DEPARTMENT OF DEFENSE
CAMP LEJEUNE DEPENDENTS SCHOOLS
(Agency)

and

LEJEUNE EDUCATION ASSOCIATION
(Union)

0-AR-3343

_____

DECISION

March 20, 2001

_____

Before the Authority: Dale Cabaniss, Chairman; Donald S. Wasserman and Carol Waller Pope, Members. [n1] 

I.      Statement of the Case

      This matter is before the Authority on exceptions to an award of Arbitrator Fred Blackwell filed by the Agency under section 7122(a) of the Federal Service Labor-Management Relations Statute (the Statute) and part 2425 of the Authority's Regulations. The Union filed an opposition to the Agency's exceptions.

      The Arbitrator found that the Agency discriminated against the grievant on the basis of race, in violation of Title VII of the Civil Rights Act of 1964 (hereinafter "Title VII"), 42 U.S.C. § 2000e et. seq. For the reasons that follow, we deny the Agency's exceptions to the award of compensatory damages.

II.     Background and Arbitration

      The nature of the Agency's exceptions requires a detailed summation of the facts and findings of the Arbitrator, as set forth below.

      The grievant is a schoolteacher who had fourteen years of classroom experience when she was hired by the Agency for the 1990-91 school year. On March 24, 1993, she filed a grievance against the Agency, alleging that the Principal of the school had subjected her to a pattern of discriminatory treatment during the prior year. On May 15, 1993, the Principal awarded the grievant a Summative Evaluation of "Above Standard" for the year 1992-1993. On May 25, 1993, a second grievance was filed, alleging in part that the Summative Evaluation was not accurate and was part of a pattern of discrimination against the grievant. On June 30, 1993, the Agency agreed to raise the grievant's Summative Evaluation to "Well Above Standard," but the grievances were not settled. A final, consolidated grievance was filed on July 29, 1993, which alleged that the grievant's immediate supervisors at the Agency had subjected her to a pattern of harassment and persecution, because of her race (African-American), in violation of Title VII. Effective August 30, 1993, the Agency transferred the grievant to teach at a different school.

      The Arbitrator resolved the grievant's claims by issuing two awards: the first award, dated August 15, 1998 (hereinafter "merits award"), addressed the merits of the grievant's claims and found that the Agency had violated Title VII; the second award, dated June 26, 2000 (hereinafter "remedy award"), addressed the appropriate remedy. The Agency filed exceptions after the Arbitrator issued the remedy award.

A.     Merits Award

      On May 24-25, 1995, the Arbitrator held hearings

      on the case. The Arbitrator set forth the issue as follows:

The question raised by the grievance and the evidentiary record thereon is whether the record evidence establishes that [the grievant], while serving as a third grade teacher at [the Agency], was treated unfairly and subjected to a pattern of harassment and persecution, because of her race (Afro American), by [the Principal] and other administrators at [the school], in violation of Title VII of the Civil Rights Act of 1964. If so, what shall the remedy be?

Merits award at 2.

      The Arbitrator then noted that the Union had filed three grievances in this case, the third being a refiling and consolidation of the other two grievances. In a prehearing motion, the Agency had requested that the grievance dated March 24, 1993 be dismissed for lack of arbitrability. [n2]  In this issue, the Arbitrator noted his decision to dismiss the March grievance on procedural grounds. See id. at 6 n.1. At the arbitration, the Agency also argued that the Union's second and third grievances, dated May 25, 1993, and July 29, 1993, should be dismissed for lack of arbitrability. In response, the Arbitrator held as follows: [ v57 p13 ]

The hearing established that the parties have complied with the preliminary steps of the arbitration procedure of their Agreement and that the grievances filed on March 24 and May 25, 1993, and filed on July 29, 1993, as consolidated grievances, are properly before the undersigned Arbitrator for resolution under that Agreement.

Id. at 5.

      Next, the Arbitrator listed the allegations in support of the racial discrimination claim, as summarized below:

(1)     On September 26, 1992, the Principal scheduled a conference for the grievant with a concerned parent without notifying the grievant.
(2)     On October 7, 1992, the grievant requested permission to continue with the second session of mentor training but her request was denied.
(3)     On October 21, 1992, in the presence of others, the grievant was questioned about the accuracy of her timecard in a manner that caused her embarrassment; the card was found to be accurate, but no apology was made to the grievant.
(4)     On November 2, 1992, the grievant was presented with a summative prepared from a classroom observation of the Assistant Principal; the summative addressed topics which had nothing to do with the classroom observation and seemed to insinuate that the grievant had difficulty in communicating with teachers, staff members, and parents.
(5)     On January 22, 1993, the Principal conducted a counseling session with the grievant in which the Principal told her that she was teaching too much black history, that parents were complaining about her (but did not say who), and that faculty members were complaining that the grievant was "zapping them with one liners." In connection with those statements, the Principal could not name any person or incident.
(6)     On February 19, 1993, following a three day absence by the grievant due to sickness, the Principal met the grievant in the school hallway, where the Principal suggested that (a) the grievant had a rough time with sickness that year, (b) the grievant had been out once or twice every pay period, (c) the grievant's son had been sick frequently, and (d) there was a pattern to the grievant's absences.
(7)     On March 11, 1993, the Principal told the grievant, who had been dismissing her students at 2:45, not to dismiss them until 2:50 or 2:55 (the elementary school hours are from 8:00 until 2:45). On March 16, 1993, the Principal sent approximately half of the grievant's class back to their room because it was not 2:55.
(8)     In March of 1993, the teachers were instructed to keep their students in class until called to assembly to attend a motivational speech by a National Football League player. The grievant was not summoned when all of the other classes were called, and when she arrived at the assembly after the program had started, she was told by the Assistant Principal that the Principal had forgotten the grievant's class.
(9)     On May 15, 1993, the Principal issued the Summative Evaluation of the grievant's performance for the year 1992-93 and ranked her as "Above Standard." On May 25, 1993, the evaluation was grieved on the basis that the grievant should have been given a rank of "Well Above Standard."

See id. at 13-14. The Arbitrator noted that the allegations listed by the grievant and the Union "were the subject of extensive evidence submitted by [the Union] and extensive rebuttal evidence submitted by [the Agency]." Id. at 13. The evidence submitted in the grievant's favor included the testimony of coworkers and parents.

      On the merits of the case, the Arbitrator concluded that, "by a clear and convincing preponderance of the evidence in the record as a whole, the case in chief submitted [o]n behalf of [the grievant] establishes a prima facie case that in each of the incidents enumerated in items (1) through (3), (5), (7), and (9)," listed above, the Principal "created a hostile work environment and subjected [the grievant] to discrimination, harassment and persecution, because of her race, Afro American, that violated [Title VII]." Id. at 14-15. In this regard, the [ v57 p14 ] Arbitrator noted that the principles of law applicable to resolution of claims of racial discrimination under Title VII are set forth in, among other cases, McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973) and Texas Dep't of Comty. Affairs v. Burdine, 450 U.S. 250 (1981). In coming to his conclusion, the Arbitrator found that the grievant's prima facie case was not rebutted by the evidence submitted by the Agency.

      The Arbitrator ruled that he would, in a second arbitration proceeding, decide the proper remedy for the Agency's violation of Title VII, and directed the parties to submit further arguments on that subject. In doing so, the Arbitrator noted that the grievant had "experienced the onset of symptoms of adverse health consequences" that resulted from the Agency's actions, and therefore ruled that compensatory damages would be "an open question in the further proceedings to be conducted in this matter." Merits award at 32.

B.     Remedy Award

      On November 3-4, 1999, the Arbitrator held evidentiary hearings on the remedy issue. The parties submitted their briefs in January and February 2000. The Union requested compensatory damages for pecuniary and nonpecuniary losses resulting from the grievant's depression, and other tangible and intangible injuries which the Union claimed were caused by the Agency's actions. The Union also requested that the Agency restore eighty hours of sick leave to the grievant. The Agency argued that it had not caused any of the injuries or medical problems that had been alleged by the Union. The Agency also argued that the grievant may not be compensated for "any emotional, physical, or psychological stress" that occurred after her filing of EEO grievances because "EEO case law has stated time and time again that emotional stress involved in pursuing the EEO process is non-compensable." Remedy award at 8.

      The Arbitrator outlined the legal requirements for an award of compensatory damages as a remedy for racial discrimination under 42 U.S.C. § 1981a, as set forth in Daphne E. Lawrence, E.E.O.C. No. 01952288 (April 18, 1996) (Lawrence). The Arbitrator found that, "[a]s required by the [Lawrence] criteria that compensatory damage awards must be limited to the sums necessary to compensate a complainant for actual harm," no evidence supported the grievant's claim that she suffered hair loss attributable to the Agency's discriminatory actions, or that the Agency's actions caused her to develop a tumor in her right foot and be sensitive to sunlight. Remedy award at 14. However, the Arbitrator also found as follows:

on the record as a whole[,] . . . the body of evidence submitted [o]n behalf of [the grievant], comprised of the documentary evidence of her therapists and the testimony of [the grievant] and her sisters . . . forcibly established a prima facie case in support of the claimed compensation and that such body of evidence, in the main, has not been rebutted by the Agency; some of the points urged by the Agency are well taken and have been taken into account in arriving at the amount of the compensatory award.

Id. at 12. In addition, the Arbitrator rejected the Agency's claim that "the operative cause of [the grievant's] depression and anxiety was the fact that she contracted the Hepatitis C antigen. " Id. at 14.

      The Arbitrator set forth the following evidence as support for an award of damages: one of the grievant's therapists stated that the grievant had said that "she was worried about her job and that she had requested therapy to work through the issues in the environment in which she was employed in order to retain her job" (id. at 15); the grievant's medical doctor stated that in 1992 the grievant's blood pressure was "difficult to manage[,]" and that "[t]here was quite a bit of stress related to this management, because of her employment environment . . . [h]owever, she did show some improvement after having filed a complaint against her supervisors" (id. at 17); the grievant's therapist further stated that the grievant had received treatment from August, 1991 to January, 1992, and that she had reinitiated treatment on May 20, 1993; during that time, the grievant displayed symptoms of severe emotional stress which included difficulty sleeping, panic attacks, poor self-esteem, tearfulness and anxiety, and, on May 20, 1993, the grievant was diagnosed with a case of severe depression, for which "it was determined that her job situation [at the school] was a causal factor" (id. at 18); the testimony of the grievant's sisters "portrayed in credible detail about their observations of the impact on [the grievant] [of] the hostile conditions at her work, including specifics such as depression [felt by] [the grievant] on a consistent basis and a lot of crying" (id. at 18 n.7) and "[the grievant's] demeanor manifested that she was deeply troubled and stressed and embarrassed by the Agency's discriminatory actions that created a hostile work environment and that impaired her efforts to perform her teaching duties satisfactorily," while "[the Principal's] testimony was found not credible and pretextual." Id. at 19.

      As a remedy, the Arbitrator awarded the grievant a total of $77,920.00 (pecuniary $2,920.00, non-pecuniary $75,000.00) in compensatory damages. In arriving [ v57 p15 ] at that conclusion, the Arbitrator made the "threshold finding" that the grievant's emotional stress "involved in pursuing the EEO process is not compensable." Id. at 20. However, the Arbitrator recognized that the Agency's actions had resulted in harm to the grievant since the year 1992, and that "[t]he discriminatory incidents that occurred in January, March, and May 1993 caused additional harm to [the grievant], so it is readily apparent that the harm's duration continued into 1993 and beyond." Id. Moreover, the Arbitrator found that:

[T]he nature of the harm is such that its impact upon [the grievant] can logically be said to have existed so long as she had to work under the cloud of not knowing whether she was justified in opposing [the Principal] in the work place about her performance and competence as a teacher. The impact from this cloud cannot be said to have ended until [the grievant's] position was vindicated by the findings in [the merits award]; even after this award[,] [the grievant's] compensation claim, including her out-of-pocket expenses, remained unresolved . . . [c]onsequently, the duration of the harm was such as to fully justify the compensation [awarded by the Arbitrator]"

Id. at 20-21.

      The Arbitrator directed the Agency to restore eighty hours of sick leave to the grievant, and retained jurisdiction to determine attorney fees if not resolved by the parties. Id. at 22.

III.     Positions of the Parties

A.     Agency's Exceptions

      The Agency contends that the Arbitrator "erred as a matter of law when he reinstated the allegations contained in the March 24, 1993 grievance after first dismissing them on procedural grounds." Exceptions at 14. According to the Agency, the grievant had two options for pursuing a claim of racial discrimination, as set forth in Article 15, Section 4 of the parties' agreement: (1) follow the negotiated grievance procedure, which required contacting an EEO counselor within 30 days after the event causing the allegation, or (2) follow the EEO process, which required contacting an EEO counselor within 45 days of the event causing the allegation. See id. at 21. Pointing out that the grievant did not see an EEO counselor within 30 or 45 days of the benchmark date of March 11, 1993 contained in the grievant's March 24, 1993 grievance, the Agency asserts that the grievant "chose . . . neither" option. Id. The Agency "assumes" that the Arbitrator must have allowed the grievant to resubmit her claims based upon a "continuing violation" theory of discrimination (id. at 15 n.12) but that the Arbitrator failed to demonstrate that a continuing violation existed. As a result, the Agency argues that the portion of the award based on the claims contained in the March 24, 1993 grievance should be vacated. Id. at 20. As related to that argument, the Agency asserts that the grievant should not be compensated for any high blood pressure experienced by her in 1992 because, even assuming that her doctor correctly reported that she had high blood pressure at that time, it was "outside the discriminatory period alleged in the July 29, 1993 grievance, which complained about the May 15, 1993 summative evaluation." Id. at 28.

      Next, the Agency contends that the Arbitrator "erred as a matter of law" when he awarded compensatory damages for harm that resulted from "participation in the EEO process." Id. at 22. In support, the Agency quotes from Reginald J. Rountree, E.E.O.C. No. 01941906 (July 07, 1995) (Rountree), for the proposition that "`compensatory damages are not available for emotional distress and depression caused by the stress of participating in the EEO process.'" Exceptions at 25 (emphasis omitted). The Agency bases its argument upon the assertion that the Arbitrator "made conclusions on non-facts to compensate [the grievant] for participation in the EEO process"(id. at 23; see also id. at 28), and cites the following evidence: "[t]he medical evidence presented developed [sic] this matter proves [the grievant] underwent treatment for her hepatitis in late 1994 and early 1995" (id. at 22); and, according to the Agency's medical witness, "all of [the grievant's] blood pressure problems also occurred during her participation in the EEO process." Id. at 23; see also, id. at 28). The Agency concludes that "[i]t is clear from the objective evidence of record that Arbitrator Blackwell, contrary to law, compensated [the grievant] for her participation in the EEO process." Id. at 26. As related to that argument, the Agency claims that it should not be responsible for compensating the grievant for any injuries that occurred during the time that the Arbitrator "delay[ed]" by 39 months in deciding the case. See id. at 24, 30.

      Finally, the Agency contends that the Arbitrator "erred as a matter of law" by awarding "excessive compensatory damages not based on the evidence of record." Id. at 27. In this regard, the Agency argues that the Authority should reduce the damages because there were "other medical problems and issues in [the grievant's] life that seemed to contribute to her depression" (id. at 29), such as: the grievant's therapist "did not quantify the severity of [the grievant's] depression" (id. at 29); the grievant's diagnosis of being infected [ v57 p16 ] with the Hepatitis C antigen and her hair loss could have contributed to her depression; and that the grievant "only visited [her] social worker on nine occasions" between May of 1993 through March of 1994 "is hardly indicative of [a need for] aggressive psychotherapy." Id. at 29-30.

      In sum, the Agency requests that the Authority vacate the portion of the award that grants compensation for claims set forth in the March 24, 1993 grievance, and, because the Arbitrator "incorrectly compensates [the grievant] for her participation in the EEO process, including his 39 month delay in deciding the interim award[,]" the Agency requests that the Authority "vacate the damages portion of the [a]ward and provide compensatory damages in an amount not to exceed $10,000, which is similar to those amounts in cases similar to [the grievant's], such as [the] Rountree [decision]." Id. at 30-31.

B.     Union's Opposition

      In response to the Agency's contention that the award should not grant compensation for any claim set forth in the March 24, 1993 grievance, the Union contends that "it is uncontested that the grievance was timely re-filed on July 29, 1993." Opposition at 10. Further, relying on Fielder v. UAL Corp., 218 F.3d 973, 985 (9th Cir. 2000), the Union contends that, "so long as there was one timely allegation, all related allegations are also actionable." Id. at 11. Specifically, the Union claims that the July 29, 1993 consolidated grievance was timely filed in accordance with Article 15, Section 4 of the parties' agreement because: (1) the grievant received her annual performance evaluation on May 14, 1993; (2) she initiated counseling on June 9, 1993, which was within the thirty day limit for the inception of counseling; (3) the counseling was completed on July 21, 1993; and (4) the consolidated grievance was filed on July 29, 1993, which was within the fifteen day limit for filing grievances. See id. at 8, 12. As related to that argument, the Union contends that because the consolidated grievance alleged a "`continuing condition[,]'" it was timely filed under Article 15, Section 10 of the parties' agreement. Id. at 10. [n3] 

      The Union contends that the Agency's exceptions constitute mere disagreement with the Arbitrator's findings of fact and evaluation of the evidence. In this regard, the Union asserts that the Agency does not demonstrate that the Arbitrator "compensated [the grievant] for her participation in the EEO process[,]" (id. at 11) or that any factor other than the Agency's actions "actually operated to cause [the grievant] harm." Id. at 17. The Union concludes that the Agency's exceptions should be denied because the Agency has not demonstrated that the Arbitrator awarded excessive damages.

IV.     Analysis and Conclusions

A.     The Union's Consolidated Grievance Was Arbitrable

      The Agency's argument that the Arbitrator was barred by the parties' agreement from considering the claims set forth in the Union's March 24, 1993 grievance is an exception to the Arbitrator's determination of the procedural arbitrability of the grievance. An arbitrator's determination as to procedural arbitrability may be found deficient only on grounds that do not challenge the determination of procedural arbitrability itself. See AFGE, Local 2921, 50 FLRA 184, 185-86 (1995). Such grounds include arbitrator bias or the fact that the arbitrator exceeded her or his authority. See id at 186.

      Specifically, the Agency asserts that the portion of the award that is based on the claims set forth in the Union's March 24, 1993 grievance should be vacated because the Union did not file that grievance in accordance with various procedural requirements contained in Article 15, Section 4 of the parties' agreement. The Agency's contention directly challenges the Arbitrator's determination of procedural arbitrability and, therefore, does not provide a basis for finding the award deficient. See, e.g., United States Dep't of the Army, Corps of Engineers, Memphis District, Memphis, Tenn., 52 FLRA 920, 923 (1997). Accordingly, we deny the exception. [n4]  In this connection, there is also no basis for the Agency's claim that the grievance was filed too late to allow the grievant to be compensated for costs related to high blood pressure. [ v57 p17 ]

      To the extent that the Agency argues that the Arbitrator exceeded his authority in finding that the Union's claims were arbitrable, that exception is denied. In order to prove that an arbitrator exceeded his authority in issuing an award, a party must demonstrate that the arbitrator failed to resolve an issue submitted to arbitration, resolved an issue not submitted to arbitration, disregarded a specific limitation on his or her authority, or awarded relief to persons who are not encompassed within the grievance. See United States Dep't of Defense, Education Activity, Arlington, Va., 56 FLRA 887, 891 (2000). The award is directly responsive to the issues as the Arbitrator framed them, and the Agency has not established that the Arbitrator disregarded a specific limit on his authority. Accordingly, the award is not deficient on grounds that the Arbitrator exceeded his authority.

B.     The Award is Not Contrary to Law

      If the Arbitrator's decision is challenged on the ground that it is contrary to any law, rule or regulation, then the Authority reviews the legal question de novo. See NTEU, Chapter 24, 50 FLRA 330, 332 (1995). In applying a standard of de novo review, we assess whether the arbitrator's legal conclusions are consistent with the applicable standard of law. See NFFE, Local 1437, 53 FLRA 1703, 1710 (1998). In making that assessment, we defer to the arbitrator's underlying factual findings. See id.

1.     The award is not deficient on the ground that the arbitrator awarded damages for injuries caused by the EEO process

      The Agency contends that the Arbitrator erred as a matter of law by concluding that the damages awarded by him were not compensation for injuries "caused by the stress of participating in the EEO process." Exceptions at 25. As relevant here, the U.S. Equal Employment Opportunity Commission has held that "compensatory damages are not available for emotional distress and depression caused by the stress of participating in the EEO process." See, e.g., Rountree, E.E.O.C. No. 01941906, slip. op. at 7; see also Raymond Appleby, E.E.O.C. No. 01933897 (March 4, 1994) (compensatory damages were added to the statutes to address how an agency treats an employee or applicant in an employment-related context, not how an agency litigates an EEO complaint during the administrative process). In this connection, the Arbitrator recognized that the grievant's emotional stress "involved in pursuing the EEO process is not compensable." Remedy award at 20.

      We construe the Agency's exception as an allegation that the award is inconsistent with the legal standard set forth in Rountree. However, in recognizing that standard, the Arbitrator found that "[t]he discriminatory incidents that occurred in January, March and May 1993 caused additional harm to [the grievant] . . . [which] continued into 1993 and beyond[,]" (id at 20) and that the "duration of the harm was such as to fully justify the compensation to be awarded [the grievant] in this proceeding." Id. at 21. None of the Agency's submissions demonstrate that the Arbitrator erroneously concluded that the duration of the harm caused by the Agency's actions in January, March and May 1993 extended throughout the EEO process. Neither does the Agency submit any evidence showing that the grievant suffered actual harm caused by the EEO process for which the Arbitrator awarded damages. Rather, this exception is demonstrative of the Agency's disagreement with the Arbitrator's calculation of damages and not a failure on his part to apply the proper standard of law. We conclude that the Agency has not demonstrated that the Arbitrator awarded damages for harm that was caused by the EEO process. As such, we deny the exception.

2.     The award is not deficient on the ground that the Arbitrator awarded excessive compensatory damages

      The Agency contends that the award is contrary to law because the damages are excessive and not based on record evidence. The Authority will therefore address the requirements for awarding compensatory damages under Section 102(a) of the Civil Rights Act of 1991, codified at 42 U.S.C. § 1981a (Section 102).

      Section 102(a) authorizes an award of compensatory damages as part of the make-whole relief for intentional discrimination in violation of Title VII. Compensatory damages are available to federal employees who seek redress for intentional discrimination through an administrative process. McAdams v. Reno, 858 F. Supp. 945, 950-51 (D.Minn. 1994) (citing Richard Jackson, E.E.O.C. No. 01923399 (Nov. 12, 1992)); see also Eleanor L. Totten, 68 M.S.P.R. 255, 257 n.2 (July 20, 1995) (citing Jack H. Hocker, 63 M.S.P.R. 497, 505 (July 12, 1994)).

      The Authority thoroughly outlined the legal requirements for an award of compensatory damages as a remedy for racial discrimination under Section 102 in United States Dep't of Commerce, Patent and Trademark Office, 52 FLRA 358, 372-74 (1996) (PTO). In that case, the Authority recognized that "[a]n award of compensatory damages must be based on objective evidence." Id. at 373 (citing Lawrence, E.E.O.C. No. [ v57 p18 ] 01952288). In Lawrence, the Equal Employment Opportunity Commission defined objective evidence to 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 . . . . 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.

Id. at 5.

      The Authority further stated in PTO:

[T]he grievant's own testimony, along with the particular circumstances of the case, may be sufficient to sustain her burden of proving damages due to emotional distress. See [Lawrence] at 5 (citing United States v. Balistrieri, 981 F.2d 916, 932 (7th Cir. 1992), cert. denied, 510 U.S. 812 (1993) (compensatory damages in context of claim of housing discrimination)); EEOC Compliance Manual, Notice on Compensatory and Punitive Damages, N:6071, N:6081 (citing Williams v. Trans World Airlines, Inc., 660 F.2d 1267, 1273 (8th Cir. 1981); see also Phillips v. Hunter Trails Community Ass'n, 685 F.2d 184, 190-91 (7th Cir. 1982). However, where no objective evidence has been introduced upon which the fact-finder may conclude that the employee has suffered emotional distress as a result of an employer's discriminatory action, the employee may not recover damages. See Gunby v. Pennsylvania Electric Co., 840 F.2d 1108, 1121-22 (3d Cir. 1988), cert. denied, 492 U.S. 905 (1989). Further, the amount of damages awarded in a specific case may be affected by the absence of supporting evidence. Lawrence, slip op. at 5.

PTO, 52 FLRA at 373-74.

      Here, unlike PTO, the Arbitrator made sufficient findings to support the award of compensatory damages. In particular, the evidence set forth by the Arbitrator that formed the basis for his award included: testimony from the grievant's sisters, statements from the grievant's therapists and her medical doctor, medical documents, the grievant's own testimony, and the testimony of the Principal. See Remedy award at 10-19. Based upon that evidence, the Arbitrator held that "the record as a whole" "forcibly established a prima facie case in support of the claimed compensation and that such body of evidence, in the main, has not been rebutted by the Agency. " Id. at 12. Consistent with the standard set forth in Lawrence, we conclude that the Agency has not demonstrated that the Arbitrator failed to base his award of compensatory damages on objective evidence. Therefore, as the Agency has not shown that the award is contrary to law, we deny the exception.

      As a final point, insofar as the Agency alleges that the Arbitrator calculated the amount of compensatory damages to be awarded in a manner that was not in accordance with law, we reject that allegation. In this regard, the EEOC has stated that a proper award of nonpecuniary compensatory damages must meet two goals: (1) that it not be "`monstrously excessive'" standing alone, and (2) that it be consistent with awards made in similar cases. See Karin A. Leperi, E.E.O.C. No. 01964107, slip op. at 15 (April 2, 1998) (quoting Cygnar v. City of Chicago, 865 F.2d 827, 848 (7th cir. 1989)). Significantly, the Arbitrator found that "[t]he amount of compensation awarded is consistent with the amount awarded in similar cases discussed in the briefs." Remedy award at 10 (citations omitted). [n5]  With regard to that finding, the Agency has not submitted any evidence demonstrating that the award is "monstrously excessive" or inconsistent with the range of amounts that have been awarded in cases such as this one. Based upon the foregoing, we conclude that the Agency has failed to demonstrate that the Arbitrator's calculation of the amount of compensatory damages is contrary to law.

V.     Decision

      We deny the exceptions. [ v57 p19 ]


Dissenting Opinion of Chairman Cabaniss:

      I disagree with my colleagues' conclusion that the Arbitrator's award of compensatory damages is not contrary to law. The Arbitrator stated that "the nature of the harm [to the grievant] is such that its impact . . . can logically be said to have existed so long as she had to work under the cloud of not knowing whether she was justified in opposing [the principal] in the work place about her performance and competence as a teacher." Award at 20. He concluded that "the impact from this cloud cannot be said to have ended until [the grievant's] position was vindicated by the [Arbitrator's] findings" in the award in the case. Id. As I read those statements, they amount to findings that the alleged additional harm to the grievant is traceable to the uncertainty and anxiety attached to the invocation of the EEO process and that the harm came to an end when the EEO process reached its conclusion in the Arbitrator's award. Consequently, I conclude that the Arbitrator in fact provides damages for harm resulting from the process. See, e.g., Winston v. Dep't of Agriculture, E.E.O.C. Appeal No. 01972099 (Mar. 7, 2000); McGill v. Dept' of the Navy, E.E.O.C. Appeal No. 01955718 (Sept. 3, 1998) (McGill); Rountree v. Dep't of Agriculture, E.E.O.C. Request No. 05950919 (Feb. 15, 1996).

      Thus, I would find the award contrary to law and deficient to that extent, and I would remand the award to the Arbitrator to determine the damages owed the grievant in the absence of the harm due to the process as he identified it. I would also require that, in determining those damages, he comply with the criteria applied by the EEOC. Specifically, for a proper award of non-pecuniary damages, the amount of the award should not be "monstrously excessive" standing alone and should be consistent with the amount awarded in similar cases. See, e.g., Cygnar v. City of Chicago, 865 F.2d 827, 848 (7th Cir. 1989). I note in the latter regard that the Equal Employment Opportunity Commission, in factually similar cases, usually does not award compensatory damages in excess of $15,000. See, e.g. McGill. I recognize that in factually dissimilar cases, awards of compensatory damages have reached the $75,000 granted by the Arbitrator in this case.



Footnote # 1 for 57 FLRA No. 6

   Chairman Cabaniss' opinion, dissenting in part, appears at the end of this decision.


Footnote # 2 for 57 FLRA No. 6

   The Agency had argued that the Union had not filed the grievance consistent with the procedures set forth by Article 15, Section 4 of the parties' agreement. See Exceptions at 14; Opposition at 2. As relevant to that argument, Article 15, Section 4 states as follows:

Before filing a grievance which alleges discrimination, the employee must first discuss the allegation with an EEO counselor. The employee must contact the counselor within 30 days after the date the employee became aware of the event. Discussions between an employee and an EEO counselor do not preclude an employee from opting to select the negotiated procedure provided that such grievance is initiated within 15 days of the conclusion of the counseling.

Footnote # 3 for 57 FLRA No. 6

   Article 15, Section 10 of the parties' agreement states that "[g]rievances resulting from continuing violations may be presented at anytime."


Footnote # 4 for 57 FLRA No. 6

   The Agency also alleges that the award is defective because the Arbitrator "failed to address" whether the Union had proved the existence of a "continuing violation" theory of discrimination. Exceptions at 20. In this regard, the award demonstrates that the Arbitrator did not frame a "continuing violation" theory as an issue to be addressed or resolved by him. Instead, the Arbitrator found that the grievance was arbitrable based upon the procedures set forth in the parties' agreement. Because the Agency's allegation as to a "continuing violation" directly challenges the Arbitrator's procedural arbitrability determination, it is no basis for finding the award deficient. See United States Dep't of Veterans Affairs Medical and Regional Center, Togus, Me., 55 FLRA 1189, 1192 (1999) (agency's allegation that arbitrator misapplied a "continuing violation" analysis was no basis for challenging the arbitrator's conclusion as to procedural arbitrability).


Footnote # 5 for 57 FLRA No. 6

   Given the supporting evidence relied on by the Arbitrator, which included a diagnosis of severe depression, the compensatory damages awarded by him are within the range of damages awarded in cases similar to the grievant's in terms of harm sustained. See, e.g., Fauntleroy, E.E.O.C. No. 07A00050 (January 10, 2001) ($80,000 in non-pecuniary damages awarded where doctor diagnosed major depression and evidence and testimony demonstrated negative effects of agency's actions on complainant's emotional health); Winkler, E.E.O.C. No. 01975336 (June 7, 2000) ($110,000 in non-pecuniary damages awarded where Commission found complainant suffered severe depression, humiliation, anxiety, crying, social withdrawal, loss of esteem, and interference with marital and social life); See also Medlock v. Ortho Biotech, Inc., 164 F.3d 545 (10th Cir. 1999) ($75,000 award for mental anguish, emotional