0120111711
07-30-2014
Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service (Pacific Area), Agency.
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service
(Pacific Area),
Agency.
Appeal No. 0120111711
Hearing No. 550-2009-00020X
Agency No. 1F-943-0003-08
DECISION
On February 3, 2011, Complainant filed an appeal from the Agency's January 3, 2011 final order concerning her request for non-pecuniary compensatory damages for the Agency's violation of Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended,
29 U.S.C. � 791 et seq. The Commission accepts the appeal pursuant to
29 C.F.R. � 1614.405(a). For the following reasons, the Commission MODIFIES the Agency's final order.
ISSUE PRESENTED
The issue presented is whether the EEOC Administrative Judge (AJ) properly awarded Complainant $2,500 in non-pecuniary compensatory damages.
BACKGROUND
On January 15, 2008, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the bases of physical disability (cervical and lumbar conditions) and reprisal for prior protected EEO activity (filing EEO complaints and requesting reasonable accommodation) when, after October 12, 2007, it did not provide her with work within her medical restrictions.
On December 14, 2010, after a hearing, the AJ issued a decision finding disability and reprisal discrimination. Specifically, the AJ found that: (1) from March 28, 2008 to August 31, 2009, the Agency failed to provide Complainant with a reasonable accommodation when it refused to allow her to perform work that it had identified as available and suitable for her; and (2) from September 1, 2008 to August 31, 2009, the Agency retaliated against her by requiring her to simply sit in a chair (except for breaks and lunch) in an enclosed area on the workroom floor, visible to her fellow employees, without providing her with any work assignments.
The AJ, in pertinent part, awarded Complainant $2,500 in non-pecuniary compensatory damages for emotional harm.1 Specifically, the AJ credited Complainant's testimony that she was greatly upset and humiliated by the Agency's actions, that she wanted to work as she had for many years at various jobs, and that the Agency's refusal to give her any assignments was upsetting and demeaning on a daily basis. The AJ, however, noted that Complainant's evidence of her emotional harm was limited to her own testimony. Moreover, the AJ found that Complainant was entitled only to damages for the extent to which the Agency's actions from March 28, 2008 to August 31, 2009 exacerbated her long-term emotional distress. The AJ found it significant that Complainant had been seeing a psychiatrist (P1) on a regular basis (once a week) since her workers' compensation claim alleging stress in the workplace was accepted in 1989.
On January 3, 2011, the Agency issued a final order fully implementing the AJ's decision. Complainant then filed the instant appeal. The documentation submitted by Complainant in support of her appeal consisted of a January 22, 2011 letter from P1.
ANALYSIS AND FINDINGS
Standard of Review
Pursuant to 29 C.F.R. � 1614.405(a), all post-hearing factual findings by an AJ will be upheld if supported by substantial evidence in the record. Substantial evidence is defined as "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Universal Camera Corp. v. Nat'l Labor Relations Bd., 340 U.S. 474, 477 (1951) (citation omitted). A finding regarding whether or not discriminatory intent existed is a factual finding. See Pullman-Standard Co. v. Swint, 456 U.S. 273, 293 (1982). An AJ's conclusions of law are subject to a de novo standard of review, whether or not a hearing was held. An AJ's credibility determination based on the demeanor of a witness or on the tone of voice of a witness will be accepted unless documents or other objective evidence so contradicts the testimony or the testimony so lacks in credibility that a reasonable fact finder would not credit it. See Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at Ch. 9, � VI.B (Nov. 9, 1999).
P1's January 22, 2011 Letter
As an initial matter, we decline to consider P1's January 22, 2011 letter submitted by Complainant for the first time on appeal. 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 hearing. EEO MD-110, at Ch. 9, � VI.B.5. Here, Complainant did not make such a showing regarding the information contained in P1's letter. We note that P1 had been treating Complainant since 1989.
Non-Pecuniary Compensatory Damages
When discrimination is found, the agency must provide the complainant with a remedy that constitutes full, make-whole relief to restore her as nearly as possible to the position she 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). In West v. Gibson, 527 U.S. 212 (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).
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 Enforcement Guidance: Compensatory and Punitive Damages Available Under Section 102 of the Civil Rights Act of 1991, EEOC Notice No. 915.002, at II.A.2 (July 14, 1992) (Compensatory Damages Guidance). 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. Further, compensatory damages should not "monstrously excessive" standing alone, should not be the product of passion or prejudice, and 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) (citing Cyngar v. City of Chicago, 865 F.2d 827, 848 (7th Cir. 1989)). Where a complainant's emotional harm is due in part to personal difficulties, which were not caused or exacerbated by the discriminatory conduct, the agency is liable only for the harm resulting from the discriminatory conduct. See Compensatory Damages Guidance, at II.A.2.
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 a complainant concerning 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 non-pecuniary losses that are incurred as a result of the discriminatory conduct. Id.
Statements from others including family members, friends, health care providers, other counselors (including clergy) could address the outward manifestations or physical consequences of emotional distress, including sleeplessness, anxiety, stress, depression, marital strain, humiliation, loss of self-esteem, excessive fatigue, or a nervous breakdown. Id. A complainant's own testimony, along with the circumstances of a particular case, can suffice to sustain her 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, the AJ relied on Complainant's hearing testimony as objective evidence for awarding non-pecuniary compensatory damages. Specifically, the AJ found that the Agency's discriminatory conduct caused Complainant emotional harm in the form of humiliation and emotional distress on a daily basis. In addition, the AJ found that the Agency's discriminatory conduct lasted 17 months, from March 28, 2008 to August 31, 2009.
After careful consideration of the record, we find that an award of $7,500 for non-pecuniary compensatory damages is appropriate. Specifically, we note the AJ's finding that the Agency's actions caused Complainant humiliation and emotional distress over a period of 17 months. In addition, we find it reasonable to infer that Complainant would suffer humiliation and emotional distress based on the inherently degrading and publicly humiliating nature of being required, for 12 months, to simply sit in a chair (except for breaks and lunch) in an enclosed area on the workroom floor, visible to other employees, without being given any work assignments. Moreover, although Complainant had long-term emotional distress dating back to 1989, Complainant testified that she experienced additional emotional distress based on the Agency's actions at issue here. Hearing Transcript, at 252-57. Finally, we note that this amount is not "monstrously excessive" standing alone, is not the product of passion or prejudice, and is consistent with Commission precedent. In other cases, the Commission has awarded similar amounts for emotional harm such as humiliation and emotional distress.
See Adams v. Dep't of Veterans Affairs, EEOC Appeal No. 01A43938 (Apr. 7, 2005) ($7,000 in non-pecuniary compensatory damages based on complainant's statements about experiencing humiliation, low self-esteem, increased anxiety, and hopelessness); Robinson v. Dep't of the Army, EEOC Appeal No. 01A31123 (May 26, 2004) ($7,500 in non-pecuniary compensatory damages based on complainant's testimony about mental anguish, emotional stress, lowered professional status, a reduction in his ability to advance his career, humiliation, embarrassment, and intimidation); Harrison v. U.S. Postal Serv., EEOC Appeal No. 01A14848 (Mar. 22, 2002) ($8,000 in non-pecuniary compensatory damages for retaliatory harassment where complainant felt humiliation, embarrassment, anxiety, and anger, and was diagnosed with depression).
CONCLUSION
Based on a thorough review of the record, we MODIFY the Agency's final Order. The Agency will comply with the Order below.
ORDER
The Agency is ordered the take the following remedial actions within one hundred and twenty (120) calendar days of this decision becoming final:
1. The Agency shall pay Complainant $7,500 in non-pecuniary compensatory damages.
2. The Agency shall provide eight (8) hours of EEO training to the responsible management officials regarding their responsibilities under EEO laws, with special emphasis on reasonable accommodation and anti-retaliation provisions.
3. The Agency shall consider taking appropriate disciplinary action against the responsible management officials. The Commission does not consider training to be disciplinary action. The Agency shall report its decision to the Compliance Officer. If the Agency decides to take disciplinary action, it shall identify the action taken. If the Agency decides not to take disciplinary action, it shall set forth the reason(s) for its decision not to impose discipline. If the responsible management officials have left the Agency's employ, the Agency shall furnish documentation of their departure dates.
4. The Agency shall post a notice in accordance with the paragraph below.
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 verifying that the corrective action has been taken.
POSTING ORDER (G0610)
The Agency is ordered to post at its Air Mail Center in San Francisco, California copies of the attached notice. Copies of the notice, after being signed by the Agency's duly authorized representative, shall be posted by the Agency within thirty (30) calendar days of the date this decision becomes final, and shall remain posted for sixty (60) consecutive days, in conspicuous places, including all places where notices to employees are customarily posted. The Agency shall take reasonable steps to ensure that said notices are not altered, defaced, or covered by any other material. The original signed notice is to be submitted to the Compliance Officer at the address cited in the paragraph entitled "Implementation of the Commission's Decision," within ten (10) calendar days of the expiration of the posting period.
ATTORNEY'S FEES (H0610)
If Complainant has been represented by an attorney (as defined by 29 C.F.R. � 1614.501(e)(1)(iii)), she is entitled to an award of reasonable attorney's fees incurred in the processing of the complaint. 29 C.F.R. � 1614.501(e). The award of attorney's fees shall be paid by the Agency. The attorney shall submit a verified statement of fees to the Agency -- not to the Equal Employment Opportunity Commission, Office of Federal Operations -- within thirty (30) calendar days of this decision becoming final. The Agency shall then process the claim for attorney's fees in accordance with 29 C.F.R. � 1614.501.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0610)
Compliance with the Commission's corrective action is mandatory. The Agency shall submit its compliance report within thirty (30) calendar days of the completion of all ordered corrective action. The report shall be submitted to the Compliance Officer, Office of Federal Operations, Equal Employment Opportunity Commission, P.O. Box 77960, Washington, DC 20013. The Agency's report must contain supporting documentation, and the Agency must send a copy of all submissions to the Complainant. If the Agency does not comply with the Commission's order, the Complainant may petition the Commission for enforcement of the order. 29 C.F.R. � 1614.503(a). The Complainant also has the right to file a civil action to enforce compliance with the Commission's order prior to or following an administrative petition for enforcement. See 29 C.F.R. �� 1614.407, 1614.408, and 29 C.F.R. � 1614.503(g). Alternatively, the Complainant has the right to file a civil action on the underlying complaint in accordance with the paragraph below entitled "Right to File A Civil Action." 29 C.F.R. �� 1614.407 and 1614.408. A civil action for enforcement or a civil action on the underlying complaint is subject to the deadline stated in 42 U.S.C. 2000e-16(c) (1994 & Supp. IV 1999). If the Complainant files a civil action, the administrative processing of the complaint, including any petition for enforcement, will be terminated. See 29 C.F.R. � 1614.409.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0610)
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), at 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 77960, Washington, DC 20013. 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 (T0610)
This decision affirms the Agency's final 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 (Z0610)
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 from the Court that the Court appoint an attorney to represent you and that the Court also 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 with the Court 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
_7/30/14_______________
Date
1 The AJ also ordered the Agency to post a notice that discrimination had occurred. The AJ found that Complainant was not entitled to back pay and benefits because she received full pay during the time period at issue. In addition, the AJ found that Complainant was not entitled to be returned to work and provided with reasonable accommodation because she was placed off work on August 31, 2009 pursuant to the National Reassessment Process and her relief in that regard would be determined in a pending class complaint, McConnell, et al. v. U.S. Postal Service (Agency No. 4B-140-0062-06).
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0120111711
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120111711