07-2006-0071_Dennis
05-30-2008
Donald Dennis, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, (Southeast Area) Agency.
Donald Dennis,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
(Southeast Area)
Agency.
Appeal No. 07200600711
Agency No. 4H300032604
Hearing No. 110-A5-0307X
DECISION
In conjunction with the issuance of its June 19, 2006 final order,
the agency filed a timely appeal which the Commission accepts pursuant
to 29 C.F.R. � 1614.405(a). On appeal, the agency requests that the
Commission affirm its rejection of an EEOC Administrative Judge's
(AJ) finding of discrimination in violation of Title VII of the Civil
Rights Act of 1964 (Title VII), as amended, 42 U.S.C. � 2000e et seq.
The agency also requests that the Commission affirm its rejection of
the relief ordered by the AJ.
Complainant initiated EEO counseling on September 20, 2004, and filed
his formal complaint on November 30, 2004, alleging that the agency
discriminated against him on the bases of sex (male) and in reprisal for
prior protected EEO activity when: (1) he received a Proposed Letter
of Warning in Lieu of Time-Off Seven-Day Suspension dated August 27,
2004, charging complainant with failure to perform his duties and
failure to follow instructions; (2) since August 7, 2004, he had been
required to submit weekly schedules while female supervisors are not;
(3) he was required to work June 19, 2004 through October 4, 2004,
from 4:00 a.m. to 1:00 p.m. without receiving night differentials while
female supervisors had received night differential payments; and (4)
his schedule was changed frequently.
On August 17, 2005, and September 7, 2005, an EEOC Administrative Judge
(AJ) conducted a hearing on the above-referenced matter. On March
8, 2006, a hearing on damages was also conducted. The AJ issued his
Decision and Award of Compensatory Damages on May 26, 2006. The AJ found
discrimination on the basis of complainant's gender (male) regarding
his frequent schedule changes in 2004. The agency was ordered to pay
complainant $13,000.00 in non-pecuniary damages, provide complainant's
supervisor (S1) with EEO training, post a notice of the discrimination
on the employee bulletin boards, and award attorney's fees in the amount
of $7,718.25.
On June 19, 2006, the agency filed its Notice of Appeal. The agency
asserts that the AJ's decision was not based upon the preponderance
of evidence standard and that complainant failed to present sufficient
evidence of pretext. In addition, the agency asserts that the level of
discrimination does not warrant a $13,000.00 compensatory damages award.
ANALYSIS AND FINDINGS
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. National Labor Relations Board, 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.
In his decision, the AJ concludes, inter alia, that complainant presented
sufficient evidence of pretext with respect to S1 explanation for
the numerous changes in complainant's schedule. According to the AJ,
both complainant and the only other male supervisor (C1) testified that
they received frequent schedule changes in 2004. Although complainant
initially asked for a schedule change so he could work on the day shift,
his schedule continued to change, against his wishes. With the showing
that the two male supervisors in the facility had similar experiences,
along with the fact that no female supervisor received any schedule
changes, the AJ concluded that S1's nondiscriminatory, legitimate reason
was pretext for gender discrimination.
We find substantial evidence in the record to support the AJ's finding
of gender discrimination. In this regard, we note that the undisputed
testimony of various witnesses indicate that only the male supervisors
had schedule changes during the relevant period. In addition, we
find sufficient evidence in the record to support the finding that
complainant's supervisor's (S1) was not credible with respect to this
issue. Specifically, we find that S1 contradicted his own testimony on
various occasions.2 In addition, we note that C1 credibly corroborated
complainant's testimony and witnessed conduct by S1 that reflected bias
against male supervisors. Accordingly, we REVERSE the agency's final
action with respect to the AJ's finding of discrimination.
COMPENSATORY DAMAGES AWARD
Without any analysis, the agency asserts that the finding of
discrimination with respect to "such a limited issue does not justify
the award of compensatory damages".3
The Civil Rights Act of 1991 (CRA) authorizes awards of compensatory
damages as relief for intentional discrimination in violation of
Title VII. See 42 U.S.C. � 1981a. The United States Supreme Court
has affirmed the Commission's holding that compensatory damages are
recoverable in the administrative process. See West v. Gibson, 527
U.S. 212 (1999); Jackson v. United States Postal Service, EEOC Appeal
No. 01923399 (November 12, 1992) (compensatory damages may be awarded
for losses and suffering due to discriminatory acts or conduct of the
agency and include past pecuniary losses, future pecuniary losses,
and non-pecuniary losses that are directly or proximately caused by the
agency's discriminatory conduct); See Compensatory and Punitive Damages
Available Under Section 102 of the Civil Rights Act of 1991, EEOC Notice
No. N915.002 (July 14, 1992) (Notice) (Compensatory damages are not
available for discriminatory activity occurring prior to November 21,
1991, the effective date of the CRA.
In a claim for compensatory damages, a complainant must demonstrate,
through appropriate evidence and documentation, the harm suffered as a
result of the agency's discriminatory action; the extent, nature, and
severity of the harm suffered; and the duration or expected duration of
the harm. Rivera v. Department of the Navy, EEOC Appeal No. 01934156
(July 22, 1994); Notice at 11-12, 14; Carpenter v. Department of
Agriculture, EEOC Appeal No. 01945652 (July 17, 1995). Objective evidence
in support of a claim for pecuniary damages includes documentation showing
actual out-of-pocket expenses with an explanation of the expenditure and,
for non-pecuniary claims, statements from the complainant and others,
including family members, co-workers, and medical professionals. Notice
at 9; Carle v. Department of the Navy, EEOC Appeal No. 01922369 (January
5, 1993). Awards are limited to compensation for the actual harm
suffered as a result of the agency's discriminatory actions. See Carter
v. Duncan-Higgans, Ltd., 727 F.2d 1225 (D.C. Cir. 1994); Notice at 13.
The agency is only responsible for those damages that are clearly shown
to be caused by the agency's discriminatory conduct. Carle v. Department
of the Navy, supra. To recover damages, the complainant must prove that
the employer's discriminatory actions were the cause of the pecuniary
or non-pecuniary loss. Notice at 8. An award of compensatory damages
for non-pecuniary losses, including emotional harm, should reflect the
extent to which the agency's discriminatory action directly or proximately
caused the harm and the extent to which other factors also caused the
harm. Notice at 11-12.
The extent of an agency's liability may be tempered by other factors
that affected a complainant, in particular herein, complainant's stress
about his wife's medical condition at the time of the agency's action.
However, when the harm caused by the agency's action is an aggravation of
pre-existing conditions, the agency is generally liable for additional
harm. Notice at 11. In considering such cases, the Commission relies
on the principle that "a tortfeasor takes its victims as it finds
them." Wallis v. United States Postal Service, EEOC Appeal No. 01950510
(November 13, 1995). Lastly, the Commission has held that a proper
compensatory award should not be monstrously excessive standing alone,
and must be consistent with awards made in similar cases. See Cygnar
v. City of Chicago, 865 F.2d 827, 848 (7th Cir. 1989).
At the hearing on damages, complainant called his wife (W1) and C1 to
testify in support of his claim. According to complainant's testimony,
his schedule began changing from January 2004 until November 2004.
As a result of the frequent changes, he was unable to: (1) attend
events with his wife, including, dinner; (2) go shopping with his wife;
(3) attend bible study classes; and (4) share meals with his father.
Further, according to complainant, his sex life significantly decreased.
Additionally, complainant stated that his woodworking business
deteriorated because he and C1 were unable to complete the work.
Moreover, as a result of the frequent schedule changes, complainant
became depressed. When he came home from work he was angry with his
boss. Mentally he was not there, and he began drinking. Prior to this
period, he drank occasionally on the week-ends. However, according to
his testimony, during the relevant time period, he drank every day.
W1 explained that based on the frequent schedule changes, she did not
know if complainant was coming or going. She estimated that his schedule
changed weekly. W1 noted that she worked until 5 pm. After work, she and
complainant would engage in various activities. For example, they would
have dinner together, ride their bikes in the park, visit complainant's
father, attend church, attend Wednesday Bible study, and attend marriage
retreats. Similarly, she noticed that complainant and C1 were unable to
work on their woodwork. W1 also testified that prior to his frequent
change of schedule, complainant would drink socially for celebration.
However, during this period, he began to drink excessively. Additionally,
W1 testified that their sex lives changed and they discussed divorce.
She further noticed that complainant stopped eating and began losing
weight. Generally, the changes in schedule effected their communication
and they argued all the time. After complainant transferred out of
the facility in November 2004, she recounted that it took a few months
for their relationship to return to normal. As for her stomach cancer,
W1 noted that she had some minor side effects from this disease during
the time period at issue here. There were no other stressors for the
two of them at this time.
C1 testified that as a result of complainant's frequent schedule changes,
complainant became irritable as well as argumentative. C1 was also
aware that his own frequent schedule changes affected his relationship
with his wife. Further, according to C1, complainant was not dressing
the same. Finally, he noted that the frequent changes "killed" their
woodworking business.
Based upon our review of the entire record in this matter, we find
substantial evidence in support of the AJ's $13,000.00 compensatory
damages award. This award is based on the harm experienced as a result
of the agency's actions, takes into account the severity of the harm and
the period of time that the complainant experienced the harm, is not
"monstrously excessive" standing alone, is not the product of passion
or prejudice, and it is not inconsistent with awards in similar cases.
See Almera v. Department of Veterans Affairs, EEOC Appeal No. 01A13618
(January 30, 2002) ($12,000.00 in non-pecuniary damages awarded where
discriminatory non-selection caused complainant to experience humiliation,
anxiety, headaches, sleeplessness, and a loss of appetite); Mallon
v. Department of Justice, EEOC Appeal No. 01996723 (March 13, 2002)
($15,000.00 in non-pecuniary damages awarded where cancellation of desk
audit and denial of grade increase caused stress, emotional problems,
marital difficulties, loss of enjoyment of life, and headaches); Eberly
v. United States Postal Service, EEOC Appeal No. 07A30085 (May 20,
2004) ($10,000.00 in non-pecuniary damages awarded for reprisal causing
complainant to experienced depression, sleeplessness, anxiety, low self
esteem, and nightmares, but the majority of symptoms were due to prior,
unrelated incident); Haven v. USPS, EEOC Appeal No. 07A30135 (March 19,
2004) ($10,000.00 awarded in non-pecuniary damages where discriminatory
non-selection caused complainant to experienced sleeplessness and
hostility, and felt like his world collapsed); Jenkins v. USPS,
EEOC Appeal No. 07A30087 (January 30, 2004) ($10,000.00 awarded in
non-pecuniary damages where discriminatory letter of warning caused
complainant to experienced a worsening of pre-existing stress, as well
as insomnia, and depression).4
Accordingly, 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 REVERSE the final
agency order because the Administrative Judge's ultimate finding of
discrimination and award of damages are supported by substantial evidence
in the record.
ORDER
The agency is ordered to take the following action within thirty (30)
days of the date this decision becomes final:
(1) The agency shall take corrective, curative and preventive action
to ensure that discrimination does not recur. This includes, but is
not limited to, providing training to the relevant management official
(i.e., S1), regarding his responsibilities with respect to eliminating
discrimination in the federal workplace. The training must place a
special emphasis on the agency's obligations under Title VII;
(2) The agency shall pay complainant $13,000.00 in non-pecuniary
compensatory damages;
(3) The agency shall pay complainant $7,718.25 in attorney's fees;
(4) 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 official has left the agency's employ, the agency shall
furnish documentation of his departure date.
(5) 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 implemented
POSTING ORDER (G0900)
The agency is ordered to post at its North Atlanta, Atlanta, Georgia
facility 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 (H0900)
If complainant has been represented by an attorney (as defined by
29 C.F.R. � 1614.501(e)(1)(iii)), he/she is entitled to an award of
reasonable attorney's fees incurred in the processing of the complaint.
29 C.F.R. � 1614.501(e). The award of attorney's fees shall be paid
by the agency. The attorney shall submit a verified statement of fees
to the agency -- not to the Equal Employment Opportunity Commission,
Office of Federal Operations -- within thirty (30) calendar days of this
decision becoming final. The agency shall then process the claim for
attorney's fees in accordance with 29 C.F.R. � 1614.501.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0408)
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 19848,
Washington, D.C. 20036. 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 (M0408)
The Commission may, in its discretion, reconsider the decision in this
case if the complainant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. The appellate decision involved a clearly erroneous interpretation
of material fact or law; or
2. The appellate decision will have a substantial impact on the
policies, practices, or operations of the agency.
Requests to reconsider, with supporting statement or brief, must be filed
with the Office of Federal Operations (OFO) within thirty (30) calendar
days of receipt of this decision or within twenty (20) calendar days of
receipt of another party's timely request for reconsideration. See 29
C.F.R. � 1614.405; Equal Employment Opportunity Management Directive for
29 C.F.R. Part 1614 (EEO MD-110), 9-18 (November 9, 1999). All requests
and arguments must be submitted to the Director, Office of Federal
Operations, Equal Employment Opportunity Commission, P.O. Box 19848,
Washington, D.C. 20036. In the absence of a legible postmark, the
request to reconsider shall be deemed timely filed if it is received by
mail within five days of the expiration of the applicable filing period.
See 29 C.F.R. � 1614.604. The request or opposition must also include
proof of service on the other party.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely, unless extenuating circumstances
prevented the timely filing of the request. Any supporting documentation
must be submitted with your request for reconsideration. The Commission
will consider requests for reconsideration filed after the deadline only
in very limited circumstances. See 29 C.F.R. � 1614.604(c).
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (S0408)
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 (Z0408)
If you decide to file a civil action, and if you do not have or cannot
afford the services of an attorney, you may request that the Court appoint
an attorney to represent you and that the Court permit you to file the
action without payment of fees, costs, or other security. See Title VII
of the Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e et seq.;
the Rehabilitation Act of 1973, as amended, 29 U.S.C. �� 791, 794(c).
The grant or denial of the request is within the sole discretion of
the Court. Filing a request for an attorney does not extend your time
in which to file a civil action. Both the request and the civil action
must be filed within the time limits as stated in the paragraph above
("Right to File A Civil Action").
FOR THE COMMISSION:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
May 30, 2008
__________________
Date
1 Due to a new data system, complainant's case has been re-designated
with the above-referenced appeal number.
2 For example, S1 initially testified that all of complainant's schedule
changes were made in response to complainant's requests. Yet, S1
later conceded that complainant did not prefer evening hours and even
complained about those hours. Thereafter, S1 again changed his testimony
and stated that he denied complainant's various requests to work the
morning shift because S1 felt that complainant would do a better job on
the evening shift. (See Hearing Transcript (HT) at 202). We also note
that S1 initially testified that he did not remember participating in any
mediation with complainant, then stated that the mediation was very short.
(See HT at 204-205).
3 The agency does not dispute any other portion of the AJ's award,
including the attorney's fees award. Accordingly, we shall not address
such issues in this decision.
4 Further, this amount takes into consideration the
fact that complainant's wife was suffering with stomach
cancer at the time of the discriminatory actions.
??
??
??
??
8
0720060071
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036