Alex L.,1 Complainant,v.Megan J. Brennan, Postmaster General, United States Postal Service (Capital Metro Area), Agency.

Equal Employment Opportunity Commission

Sep 19, 2018

0120161798 (E.E.O.C. Sep. 19, 2018)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013

Alex L.,1
Complainant,

v.

Megan J. Brennan,
Postmaster General,
United States Postal Service
(Capital Metro Area),
Agency.

Appeal No. 0120161798

Agency No. 4H-000-0003-06

DECISION

Complainant filed an appeal with the Equal Employment Opportunity Commission (EEOC or
Commission), pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s decision concerning the
compensatory damages awarded following a finding that the Agency subjected him to 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., Section 501 of the Rehabilitation Act of 1973
(Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq., and the Age Discrimination in
Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq. The Commission’s
review is de novo. For the following reasons, the Commission MODIFIES the Agency’s final
decision.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a Senior Plant
Manager, PCES-1, at the Agency’s Processing and Distribution Center in Jacksonville, Florida.
On April 23, 2006 (and amended several times), Complainant filed a formal complaint alleging
that the Agency discriminated against him on the bases of race (Caucasian), national origin
(American), sex (male), disability, age (56), and in reprisal for prior protected EEO activity
when:

1 This case has been randomly assigned a pseudonym which will replace Complainant’s name
when the decision is published to non-parties and the Commission’s website.

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1. On January 30, 2006, he was reassigned from his Senior Plant Manager position
in Jacksonville, Florida, to a Plant Manager position in Mississippi;
2. On April 17, 2006, he received notification to report for an investigative interview
on April 21, 2006;
3. On May 9, 2006, he received a letter directing him to report for a fitness-for-duty
examination (FFDE);
4. Beginning on May 30, 2006, he was forced to use annual leave because he did not
want to report for duty;
5. On June 1, 2006, he was interviewed by the Office of Inspector General (OIG)
during an investigation; and
6. On July 3, 2006, he was forced to retire, which constituted constructive discharge

At the conclusion of the investigation, the Agency provided Complainant with a copy of the
report of investigation and notice of his right to request a hearing before an EEOC
Administrative Judge (AJ). Complainant timely requested a hearing. On May 3, 2007, the AJ
dismissed the matter as a mixed case, instructing the Agency to issue a decision with mixed-case
appeal rights to the Merit Systems Protection Board (MSPB). By final decision dated March 31,
2008, the MSPB denied jurisdiction over the matter, finding that Complainant voluntarily retired,
which was not the result of coercion, duress, misinformation, or a hostile work environment.
Thereafter, Complainant again requested a hearing before an EEOC AJ, but subsequently
withdrew his request. Consequently, the Agency issued a final decision pursuant to 29 C.F.R.
§ 1614.110(b). The Agency therein concluded that Complainant failed to prove that he was
subjected to discrimination as alleged.

Complainant appealed and, in Arnold C. v. U.S. Postal Serv., EEOC Appeal No. 0120093856
(Nov. 3, 2015), the Commission reversed the Agency’s decision in part. The Commission found
that Complainant had been discriminated against as to claims (3), (4), and (6). The Commission
ordered the Agency to offer Complainant a Postal Career Executive Service-level position within
the Jacksonville area, or another position mutually agreed to by both parties; pay Complainant
back pay; conduct a supplemental investigation into Complainant’s entitlement to compensatory
damages; provide EEO training for the responsible management officials; consider disciplining
the responsible management officials; and to post a notice.

Complainant submitted documentation to the Agency requesting $2,534.09 plus mileage for
doctor’s visits in pecuniary compensatory damages and $250,000.00 in non-pecuniary
compensatory damages. Following an investigation, the Agency issued a final agency decision
(FAD) awarding Complainant $620.57 in pecuniary compensatory damages and $50,000.00 in
non-pecuniary compensatory damages. Complainant filed the instant appeal.

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CONTENTIONS ON APPEAL

On appeal, Complainant challenges the Agency’s authority to issue a FAD concerning
compensatory damages. Specifically, Complainant points to the express language in the
Commission’s previous order stating that the Agency was to only conduct a supplemental
investigation into the compensatory damages issue and process the matter in accordance with 29
C.F.R. § 1614.108(f). Therefore, Complainant contends that the Agency had no authority to
issue a decision addressing the matter, and that he should have been given the right to request a
hearing on the issue of his entitlement to compensatory damages. In the alternative,
Complainant argues that the Agency ignored the economic impact of his constructive discharge
as it relates to his claim for emotional distress damages. Further, Complainant claims that the
Agency attempted to minimize, misrepresent, or otherwise ignore his objective evidence of
emotional distress. Complainant contends that he submitted compelling evidence which
established he suffered substantial harm which was proximately caused by the Agency’s
discriminatory actions. Accordingly, Complainant requests that the Commission grant any relief
the Commission determines is just and proper.

In response, the Agency states that it believed that the Commission’s previous order’s reference
to 29 C.F.R. § 1614.108(f) was an error as that section is clearly targeted to hearing requests
after completion of an investigation of an initial discrimination complaint. The Agency notes
that it could have requested reconsideration to obtain clarification, but it believed that the more
prudent course of action was to act in accordance with the Commission’s past practice so as to
not further delay this already delayed case. The Agency argues that it considered the economic
impact of Complainant’s situation, but that it clearly stated in the FAD that back pay and leave
restoration matters would be addressed separately in the compliance process. The Agency
contends that it considered all the evidence Complainant submitted and drew what it believed to
be valid conclusions. Accordingly, the Agency requests that the Commission affirms its FAD.

ANALYSIS AND FINDINGS

As an initial matter, the Commission will address its previous order and the language ordering
the Agency to investigate Complainant’s entitlement to compensatory damages. The
Commission ordered the Agency to:

Within thirty (30) calendar days of the date this decision becomes
final, the Agency shall give Complainant a notice of his right to
submit objective evidence (pursuant to the guidance given in Carle
v. Dep't of the Navy, EEOC Appeal No. 01922369 (Jan. 5, 1993))
in support of his claim for compensatory damages within forty-five
(45) calendar days of the date Complainant receives the Agency's
notice. The Agency shall complete the investigation on the claim
for compensatory damages within forty-five (45) calendar days of
the date the Agency receives Complainant’s claim for
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compensatory damages. Thereafter, the Agency shall process the
claim in accordance with 29 C.F.R. § 1614.108(f).

Arnold C. v. U.S Postal Serv., EEOC Appeal No. 0120093856 (Nov. 3, 2015) (emphasis added).
Essentially, the Commission’s previous order provided Complainant the right to a hearing after
the Agency’s investigation regarding his entitlement to compensatory damages. In accordance
with the order, the Agency conducted a supplemental investigation; however, in following usual
Commission precedent, the Agency issued a FAD following the investigation. The Agency
reasoned that it believed the Commission included the reference to 29 C.F.R. § 1614.108(f) in
error because in its experience with similar Commission orders, the Commission cited 29 C.F.R.
§ 1614.110(b) and ordered it to issue a final decision after completing the supplemental
investigation. In addition, the Agency explained that it believed that issuing the FAD was the
more expeditious way to address the matter, Complainant and his representatives had an
adequate opportunity to compile and submit relevant evidence, and Complainant had not
identified what he would present at a hearing that has not already been submitted. Complainant
argues that he is entitled to a hearing based on the plain language of the Commission’s order and
the regulation cited.

The Commission acknowledges that its previous order included language indicating that
Complainant should have been given the opportunity to request a hearing following the
supplemental investigation into his entitlement to compensatory damages. The regulation cited,
however, clearly applies to the investigation of discrimination complaints in the first instance and
not supplemental investigations into remedies after a finding of discrimination. Thus, the
Commission erred in referencing that regulation and not more clearly stating that the Agency
should issue a final decision after investigating the compensatory damages matter. That
procedural error, however, was cured with the Agency’s issuance of the FAD addressing
Complainant’s entitlement to compensatory damages. The Commission’s regulations do not
contemplate granting Complainant the right to a hearing under the circumstances present.
Therefore, the Commission finds no basis to conclude that the Agency acted improperly,
especially considering the interests of administrative economy and the length of time this case
has been processing.

Turning to the matter at hand, when discrimination is found, the Agency must provide the
complainant with a remedy that constitutes full, make-whole relief to restore him as nearly as
possible to the position he would have occupied absent the discrimination. See, e.g., Franks v.
Bowman Transp. Co., 424 U.S. 747, 764 (1976); Albemarle Paper Co. v. Moody, 422 U.S. 405,
418-19 (1975); Adesanya v. U.S. Postal Serv., EEOC Appeal No. 01933395 (July 21, 1994).
Pursuant to section 102(a) of the Civil Rights Act of 1991, a complainant who establishes
unlawful intentional discrimination under either Title VII of the Civil Rights Act of 1964 (Title
VII), as amended, 42 U.S.C. § 2000e et seq., or Section 501 of the Rehabilitation Act of 1973
(Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq. may receive 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) as part of this “make whole” relief. 42 U.S.C. § 1981a(b)(3).
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In West v. Gibson, 119 S.Ct. 1906 (1999), the Supreme Court held that Congress afforded the
Commission the authority to award compensatory damages in the administrative process. For an
employer with more than 500 employees, such as the Agency, the limit of liability for future
pecuniary and non-pecuniary damages is $300,000. 42 U.S.C. § 1981a(b)(3).

To receive an award of compensatory damages, a complainant must demonstrate that he or she
has been harmed as a result of an agency’s discriminatory action; the extent, nature, and severity
of the harm; and the duration or expected duration of the harm. Rivera v. Dep't of the Navy,
EEOC Appeal No. 01934157 (July 22, 1994), req. for reconsid. denied, EEOC Request No.
05940927 (Dec. 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. EEOC Notice No. 915.002 at 8.

Pecuniary Compensatory Damages

Pecuniary damages are quantifiable out-of-pocket expenses incurred as a result of the Agency’s
discriminatory actions. Damages for past pecuniary losses will not normally be granted without
documentation such as receipts, records, bills, cancelled checks, or confirmation by other
individuals of actual loss and expenses. Complainant’s request for pecuniary damages includes
$2,235.00 for doctor’s visits, mileage for the doctor’s visits, and $299.09 for medications. Here,
the Agency awarded Complainant $620.57 in pecuniary damages. Complainant did not
specifically challenge the Agency’s pecuniary damages award. Nonetheless, the Commission
finds support for the Agency’s finding that Complainant failed to establish a causal connection
between much of the claimed medical expenses and the discrimination that occurred between
January 2006 and July 2006. Thus, upon review of the record, the Commission finds no basis to
disturb the FAD with respect to the amount of pecuniary damages awarded.

Non-Pecuniary Compensatory Damages

Non-pecuniary losses are losses that are not subject to precise quantification, i.e., emotional pain,
suffering, inconvenience, mental anguish, loss of enjoyment of life, injury to professional
standing, injury to character and reputation, injury to credit standing, and loss of health. See
EEOC Notice No. 915.002 at 10 (July 14, 1992). 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. See Loving v. Dep't
of the Treasury, EEOC Appeal No. 01955789 (Aug. 29, 1997). The Commission notes that non-
pecuniary compensatory damages are designed to remedy the harm caused by the discriminatory
event rather than punish the Agency for the discriminatory action. Furthermore, compensatory
damages should not be motivated by passion or prejudice or be “monstrously excessive”
standing alone, but should be consistent with the amounts awarded in similar cases. See Ward-
Jenkins v. Dep't of the Interior, EEOC Appeal No. 01961483 (Mar. 4, 1999).

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Evidence from a health care provider or other expert is not a mandatory prerequisite for recovery
of compensatory damages for emotional harm. See Lawrence v. U.S. Postal Serv., EEOC
Appeal No. 01952288 (Apr. 18, 1996) (citing Carle v. Dep't of the Navy, EEOC Appeal No.
01922369 (Jan. 5, 1993)). Objective evidence of compensatory damages can include statements
from complainant concerning his 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 non-pecuniary losses that are incurred as a result
of the discriminatory conduct. Id.

Statements from others including family members, friends, health care providers, and other
counselors (including clergy) 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.
Id. Complainant’s own testimony, along with the circumstances of a particular case, can suffice
to sustain his burden in this regard. Id. The more inherently degrading or humiliating the
defendant’s action is, the more reasonable it is to infer that a person would suffer humiliation or
distress from that action. Id. The absence of supporting evidence, however, may affect the
amount of damages appropriate in specific cases. Id.

Here, Complainant stated that as a result of the discrimination he suffered, he experienced severe
emotional distress, depression, adverse side effects from depression-related medications,
exacerbation and aggravation of several pre-existing conditions, stress, familial strain, and mood
swings. Complainant submitted medical documentation in support of his request for
$250,000.00 for the harm he suffered.

Based on the review of the evidence in light of Commission cases regarding non-pecuniary
compensatory damages awarded for emotional harm, the Commission finds that the Agency’s
award of $50,000.00 is insufficient to remedy the harm experienced by Complainant. The
Commission finds that an award of $70,000.00 is more appropriate given the nature and duration
of the harm. See Mardell D. v. Soc. Sec. Admin., EEOC Appeal No. 0120172035 (Oct. 31,
2017) ($70,000 awarded where agency’s failure to accommodate resulted in complainant
experiencing worsening depression; insomnia; anxiety; and changes in personality and
appearance); Complainant v. Dep’t of Transp., EEOC Appeal No. 0720140022 (Sept. 16, 2015)
($60,000 awarded where complainant suffered sleeplessness, anxiety, stress, and depression, as
well as an exacerbation of her existing symptoms, as a result of the Agency’s discriminatory
actions); Lula N. v. Dep’t of Veterans Affairs, EEOC Appeal No. 0120113346 (Mar. 21, 2014)
($65,000 in nonpecuniary damages where complainant acknowledged that she experienced
health problems prior to the discrimination, but provided documentation indicating that her
health worsened due to discrimination; complainant experienced anxiousness, depression, crying,
headaches, insomnia, and high blood pressure); Irvin W. v. Dep’t of State, EEOC Appeal No.
0120141773 (Oct. 28, 2016) ($60,000 awarded where complainant experienced anxiety,
irritability, headaches, social withdrawal, and exacerbation of pre-existing conditions).

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The Commission finds that this amount takes into account the severity of the harm suffered, and
is consistent with prior Commission precedent. Finally, the Commission finds this award is not
“monstrously excessive” standing alone, is not the product of passion or prejudice, and is
consistent with the amount awarded in similar cases. See Jackson v. U.S. Postal Serv., EEOC
Appeal No. 01972555 (Apr. 15, 1999) (citing Cygnar v. City of Chicago, 865 F. 2d 827, 848 (7th
Cir. 1989)).

CONCLUSION

After a review of the record in its entirety, including consideration of all statements submitted on
appeal, it is the decision of the Equal Employment Opportunity Commission to MODIFY the
Agency’s final decision. The Agency shall comply with the Order set forth below.

ORDER

To the extent it has not already done so, within sixty (60) days of the date this decision is issued,
the Agency shall:

1. Pay Complainant $70,000.00 in non-pecuniary compensatory damages.

2. Pay Complainant $620.57 in pecuniary compensatory damages.

The Agency is further directed to submit a report of compliance in digital format as provided in
the statement entitled “Implementation of the Commission's Decision.” The report shall be
submitted via the Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g).

ATTORNEY'S FEES (H1016)
If Complainant has been represented by an attorney (as defined by 29 C.F.R.
§ 1614.501(e)(1)(iii)), he 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 the date this decision was issued. 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 (K0618)

Under 29 C.F.R. § 1614.405(c) and § 1614.502, compliance with the Commission’s corrective
action is mandatory. Within seven (7) calendar days of the completion of each ordered
corrective action, the Agency shall submit via the Federal Sector EEO Portal (FedSEP)
supporting documents in the digital format required by the Commission, referencing the
compliance docket number under which compliance was being monitored.
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Once all compliance is complete, the Agency shall submit via FedSEP a final compliance report
in the digital format required by the Commission. See 29 C.F.R. § 1614.403(g). The Agency’s
final report must contain supporting documentation when previously not uploaded, and the
Agency must send a copy of all submissions to the Complainant and his/her representative.

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 (M0617)

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. A party
shall have twenty (20) calendar days of receipt of another party’s timely request for
reconsideration in which to submit a brief or statement in opposition. See 29 C.F.R. § 1614.405;
Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110),
at Chap. 9 § VII.B (Aug. 5, 2015). All requests and arguments must be submitted to the
Director, Office of Federal Operations, Equal Employment Opportunity Commission.
Complainant’s request may be submitted via regular mail to P.O. Box 77960, Washington, DC
20013, or by certified mail to 131 M Street, NE, Washington, DC 20507. 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.
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The agency’s request must be submitted in digital format via the EEOC’s Federal Sector EEO
Portal (FedSEP). See 29 C.F.R. § 1614.403(g). 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 (T0610)

This decision affirms the Agency’s final decision/action in part, but it also requires the Agency
to continue its administrative processing of a portion of your complaint. 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 on both that portion of your complaint which
the Commission has affirmed and that portion of the complaint which has been remanded for
continued administrative processing. 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 your appeal with the Commission, until such time as the Agency issues its final decision on
your complaint. 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 (Z0815)

If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may
request permission from the court to proceed with the civil action without paying these fees or
costs. Similarly, if you cannot afford an attorney to represent you in the civil action, you may
request the court to appoint an attorney for you. You must submit the requests for waiver of
court costs or appointment of an attorney directly to the court, not the Commission.
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The court has the sole discretion to grant or deny these types of requests. Such requests do not
alter the time limits for filing a civil action (please read the paragraph titled Complainant’s Right
to File a Civil Action for the specific time limits).

FOR THE COMMISSION:

______________________________ Carlton M. Hadden’s signature
Carlton M. Hadden, Director
Office of Federal Operations

September 19, 2018
Date