Complainant,v.Patrick R. Donahoe, Postmaster General, United States Postal Service (Southwest Area), Agency.

Equal Employment Opportunity Commission

Mar 14, 2013

0120120185 (E.E.O.C. Mar. 14, 2013)

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

,
Complainant,

v.

Patrick R. Donahoe,
Postmaster General,
United States Postal Service
(Southwest Area),
Agency.

Appeal No. 0120120185

Hearing No. 350-2001-08373X

Agency No. 4E-870-0118-00

DECISION

On September 30, 2011, Complainant filed an appeal from the Agency’s August 31, 2011 final
decision concerning his equal employment opportunity (EEO) complaint alleging 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. and Section 501 of the Rehabilitation Act of 1973 (Rehabilitation
Act), as amended, 29 U.S.C. § 791 et seq. The Commission deems the appeal timely and
accepts it pursuant to 29 C.F.R. § 1614.405(a). For the following reasons, the Commission
AFFIRMS the Agency’s final decision.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a part-time 90-day
Probationary Distribution Window Clerk, PS-5, at the Agency's Anthony, New Mexico Post
Office. On August 5, 2000, Complainant filed an EEO complaint alleging that the Agency
discriminated against him on the bases of national origin (Hispanic), sex (male), and disability
when he was terminated from employment during his probationary period.1

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

1 The complaint also raised a claim of wrongful denial of reasonable accommodation which is
not a subject of this appeal (see footnote 2, infra).
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Administrative Judge (AJ). Complainant timely requested a hearing2

and the AJ held a hearing
on April 25, 2007, and issued a decision on August 22, 2007. The Agency subsequently
issued a final order adopting the AJ’s finding that Complainant failed to prove that the Agency
subjected him to discrimination as alleged.
Complainant appealed the Agency’s final order to the Commission. In a decision dated
December 10, 2010, the Commission reversed the Agency’s order and found that the Agency
had discriminated against Complainant on the bases of sex and national origin. The matter was
remanded to the Agency for an award of backpay, and among other relief, a supplemental
investigation of Complainant’s entitlement to an award of compensatory damages. EEOC
Appeal No. 0120080104.3

On remand, the Agency determined, in a decision dated August 31, 2011, that Complainant
was entitled to an award of $18,000.00 in compensatory damages. Complainant now appeals
that award to the Commission on the ground that the amount of the award is inadequate.

ANALYSIS AND FINDINGS

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.
Section 102(a) of the CRA, codified as 42 U.S.C. § 1981a, authorizes an award of
compensatory damages as part of the “make whole” relief for intentional discrimination in
violation of Title VII of the Civil Rights Act of 1964, as amended. Section 1981a(b)(3) limits
the total amount of compensatory damages that may be awarded to each complaining party for
future pecuniary losses, emotional pain, suffering, inconvenience, mental anguish, loss of
enjoyment of life, and other non-pecuniary losses, according to the number of persons
employed by the respondent employer. The limit for an employer with more than 500
employees, such as the agency herein, is $300,000.00. 42 U.S.C. § 1981a(b)(3)(D).

The particulars of what relief may be awarded, and what proof is necessary to obtain that
relief, are set forth in detail in Enforcement Guidance: Compensatory and Punitive Damages
Available Under § 102 of the Civil Rights Act of 1991, EEOC Notice No. 915.002 (July 14,
1992) (Guidance). To receive an award of compensatory damages, a complainant must
demonstrate that he has been harmed as a result of the agency's discriminatory action, and
establish the extent, nature, severity, and the duration or expected duration of the harm. Rivera

2 Initially, the AJ assigned to the matter granted the Agency’s motion for summary judgment.
In v. USPS, EEOC Appeal No. 01A46063 (April 6, 2006), the Commission
affirmed the AJ's finding that no genuine issue of material fact existed with respect to
Complainant's claim that he was denied reasonable accommodation based on his claimed
disability, but remanded his termination claim for a hearing.
3 The Commission denied the Agency’s request for reconsideration. EEOC Request No.
0520110231 (June 30, 2011).
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v. Dep't of the Navy, EEOC Appeal No. 01934157 (July 22, 1994), req. for reconsid. den'd,
EEOC Request No. 05940927 (Dec. 11, 1995); Guidance at 11-12, 14.

We note that 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. Guidance at 8. Objective evidence of compensatory damages
can include statements from the complainant concerning his or 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. Statements from
others, including family members, friends, health care providers, or 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.
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)).

The more inherently degrading or humiliating an agency's action is, the more reasonable it is
to infer that a person would suffer humiliation or distress from that action. The absence of
supporting evidence, however, may affect the amount of damages appropriate in specific cases.
See Banks v. U.S. Postal Serv., EEOC Appeal No. 07A20037 (Sept. 29, 2003) (citing
Lawrence v. U.S. Postal Serv., EEOC Appeal No. 01952288 (Apr. 18, 1996)). To be
sustained on appeal an award of non-pecuniary damages should not be “monstrously
excessive” standing alone, should not be the product of passion or prejudice, and should be
consistent with the amount awarded in similar cases. See Ward-Jenkins v. Department of the
Interior, EEOC Appeal No. 01961483 (March 4, 1999) (citing Cygnar v. City of Chicago, 865
F.2d 848 (7th Cir. 1989)).

Complainant seeks an award of $50,000 in compensatory damages. He lists the events causing
the damage as 1) the loss of his home; 2) the depression he suffered; and 3) the difficulty he
experienced in finding employment. Supplemental Report of Investigation, Affidavit A at 2.
In its final decision on damages, the Agency awarded Complainant $18,000.00 in non-
pecuniary damages for the depression he suffered and nothing for the loss of his home or his
problems finding employment.

1. Loss of Home

Complainant asks that he be reimbursed for certain expenses he incurred in connection with the
purchase of a home in El Paso, Texas in 1998 in a seller-financed transaction. Complainant
made a down payment at the time of purchase in the amount of $2,920. Complainant began
making mortgage payments to the former owner of the home in 1998. Complainant was
removed from his position with the Agency in May, 2000. In 2001, Complainant stopped
making mortgage payments. In 2003, in order to avoid foreclosure, Complainant deeded the
home back to the former owner. In exchange, the former owner released Complainant from
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further liability for mortgage payments. Complainant asks that we award him, as
compensatory damages, an amount equal to the down payment he made in 1998, plus the real
estate taxes he paid on the property for 1998 and the sum of the mortgage payments he made to
the former owner.

In order to be entitled to an award of damages based on these expenses Complainant must
demonstrate that the discrimination to which he was subjected by the Agency was the
proximate cause of Complainant’s having incurred the expense. The payment of the down
payment and taxes in 1998 could not have been caused by the Agency’s actions because
Complainant was not hired until 2000. With respect to the mortgage payments, while some of
them were made during and after Complainant’s employment with the Agency, these expenses
were not incurred because of the Agency’s actions. Rather, Complainant made the payments
so that he would have a place to live. These are day-to-day living expenses that would have
been incurred regardless of the Agency’s action and are not compensable.

2. Depression

Complainant claims that he suffered depression as a result of his termination but has submitted
no evidence from a medical professional indicating the severity or duration of Complainant’s
depression. Nor has Complainant adduced any testimony from friends or family members
concerning any manifestations of depression Complainant may have exhibited. There is
evidence that Complainant received prescriptions for anti-depression medication for brief
periods several years after his termination.

Based on a review of the record, the Commission finds that the award of $18,000.00 is
sufficient to remedy the depression the Agency's actions caused Complainant to suffer. An
examination of other cases awarding non-pecuniary compensatory damages in similar
circumstances supports such an award. See Farrell v. Dept. of Treasury, EEOC Appeal No.
07A20043 (May 5, 2003)($20,000.00 where discrimination resulted in insomnia, anxiety,
stress, depression, loss of enjoyment of life); Sellers v. Department of Veterans Affairs,
EEOC Appeal No. 01964003 (October 3, 2000) (awarding $13,000.00 to a complainant who
showed that she suffered additional physical and mental problems as a result of the agency's
failure to provide reasonable accommodation and forcing complainant to accept a reassignment
to a downgraded position over removal); Yue Lee Wan v. United States Postal Service, EEOC
No. 01995204 (July 11, 2001) ($15,000.00 in non-pecuniary damages for emotional distress,
depression, and inability to sleep); Olsen v. Department of Defense, EEOC Appeal No.
01956675 (July 29, 1998) ($16,000.00 in non-pecuniary damages for stress, depression, and
anxiety). Moreover, regarding Complainant's references to the reprehensible statements by one
of the Agency’s managers regarding Mexican Americans and Complainant’s religion, we note
that the assessment of compensatory damages is made in light of the damage to complainant,
not the misconduct of the agency. Punitive damages are inappropriate in federal sector
discrimination cases. See 42 U.S.C. §198la(b)(1). This award is not “monstrously excessive”
and is consistent with the amounts awarded in similar cases.

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3. Difficulty Finding Employment

Complainant seeks an award of damages based on his inability to obtain employment following
his termination by the Agency. The Commission has held that compensatory damages may be
awarded for injury to character and reputation. Guidance at 11-12, 14. However, the
Agency’s actions must be the proximate cause of those damages if they are to be compensable.
Here, Complainant has described his efforts to obtain employment but adduces no evidence
that his reputation has been damaged or that the Agency’s discriminatory actions were the
cause of Complainant’s inability to find a job. In removing Complainant from employment,
the Agency did not malign or defame Complainant in any way that would allow the
Commission to presume that his reputation has been damaged. In the absence of proof of a
causal relationship between the Agency’s actions and Complainant’s extended difficulties
finding employment, damages are not awardable.

CONCLUSION

Based on a thorough review of the record, we AFFIRM the Agency’s final decision on
damages.

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.

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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 (S0610)

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. 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

March 14, 2013
Date