0720180011
09-25-2018
Doria D.,1 Complainant, v. Megan J. Brennan, Postmaster General, United States Postal Service (Southern Area), Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Doria D.,1
Complainant,
v.
Megan J. Brennan,
Postmaster General,
United States Postal Service
(Southern Area),
Agency.
Appeal No. 0720180011
Hearing No. 460-2016-00115X
Agency No. 1G-772-0031-15
DECISION
Simultaneously with its January 5, 2018, final action, the Agency filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) pursuant to 29 C.F.R. � 1614.403(a) from the decision of an Equal Employment Opportunity Administrative Judge (AJ) concerning Complainant's equal employment opportunity (EEO) complaint in violation of Title VII of the Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. � 2000e et seq.
BACKGROUND
At the time of events giving rise to this complaint, Complainant was employed by the Agency as a Mail Handler, PS-04, at the North Houston Texas Processing & Distribution Center (P&DC) in Houston, Texas.
On June 5, 2015, Complainant filed an EEO complaint alleging that the Agency discriminated against her: (1) based on her sex (female) when she was sexually harassed by her acting supervisor ("S1") (male), and (2) based on reprisal for reporting the sexual harassment when her successor acting supervisor ("S2") (female) did not allow her to take breaks and lunches with her boyfriend and moved her from her assigned machine.
Following an investigation, Complainant requested a hearing before the EEOC. Following a hearing, an AJ issued a decision on November 29, 2017, Complainant had established her case of sexual harassment and unlawful retaliation. As relief, in relevant part, the AJ awarded Complainant $90,000 in nonpecuniary damages with interest accruing at the maximum legal rate from June 5, 2015 (the date the EEO complaint was filed) through the date the Agency pays all damages awarded.
The AJ found that Complainant was sexually harassed by S1 from August 2014 until it culminated into a physical action in March 2015. He repeatedly asked Complainant for dates even though she always refused and told him to leave her alone. S1's advances continued and escalated. Complainant and her boyfirend worked in the same facility.2 S1 made comments to Complainant like "[boyfriend's name] time is up now, it's my time" and on two occasions when she was with her significant other, S1 said to him "What are you doing with my woman?" and "I thought I told you to stay away from my woman." In March 2015, when Complainant was loading mail into her multi-seated mail processing machine, S1 asked to see her toes. Complainant responded by asking him if he was crazy and told him to leave her alone. S1 then reached down, grabbed Complainant's foot, and tried to remove her shoe, she resisted, and they tussled.
On reprisal, the AJ found that after Complainant reported the sexual harassment to the Supervisor of Distribution Operations in April 2015, S1 (who was no longer supervising Complainant) continued to be around and would come up and stand behind her as she worked or stare at her. At some point, successor S1 was moved out of Complainant's unit. S1 resigned from the Agency effective June 16, 2015.
In April 2015, S2 singled out and moved Complainant from her usual mail processing machine and prevented her from sharing lunch breaks with her boyfriend as they had regularly done.
Regarding her injuries, the AJ found that because of S1's actions, Complainant went to an Employee Assistance Program (EAP) counselor, could not sleep, lost hair, suffered a spike in blood pressure, and saw her physician who prescribed medication for insomnia, depression, and high blood pressure, and referred her to a psychiatrist.
In awarding $90,000 in nonpecuniary damages, the AJ quoted from testimony of Complainant and her boyfirend. Complainant testified:
It was very uncomfortable for me. On the 17th of April [2015], I... went and spoke with EAP counseling for the situation. I would go home, I couldn't sleep, I did not want to go back to work. I did not want to work there anymore. I did not know what to do. And it was a very uncomfortable environment for me and [my significant other] to be in. And also, on April 17th, I went to my doctor, because I was very - I was feeling very ill. My blood pressure was high, I had to be put on two different types of medication, and he put me on antidepressant... and sleep medication.... And he - he requested that I go and see - and talk to a psychiatrist about the situation.
Complainant's boyfriend, who lived with her, testified:
[Complainant], when we met, she was very fun loving and caring, outgoing. A very happy person... [S1]... was continuously harassing her, and... it was upsetting us both. [S1] would continually approach her, and there was no reason for that.... And we just [wanted] him to leave her alone.... He tried to get her to go out on dates. He actually asked her out on dates.... He even tried to get friends or coworkers to try to talk to her, to get her to go out with them, so he could meet her somewhere.... She became very depressed. She was very stressed about the whole situation, to the point of being in tears. Physically, she was not eating, not sleeping. I think there was even a point where she had some hair loss... she wasn't happy... she didn't even want to go to work. She would feel physically ill just coming to work, because she was so stressed about the situation... for several months, this - this is how she was. And really... still to this day. She still has that same anxiety when she - when we're going to work, that she physically feels sick.
Regarding the reprisal, Complainant testified:
.... I was... uncomfortable... and... upset... to still be working in the unit with [S1] and the retaliation that was going on and, you know, all the harassment that was going on and how uncomfortable I felt.... And... I was requesting for him... or... I be moved. And [management said]... no.... I was upset....
In its final action, the Agency implemented the AJ's finding of discrimination and reprisal. However, the Agency generally decided not to implement the AJ's award, and the final action did not contain an order for relief. In its subsequent appeal brief, the Agency argues that the nonpecuniary damages award for Complainant's injuries should be reduced from $90,000 to $40,000, and that the AJ made an error of law in awarding prejudgment interest on nonpecuniary damages as there is no entitlement to any. The Agency makes no further arguments regarding remedies.
Complainant opposes the Agency's appeal, and requests that it be rejected on the merits.
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 compensatory damages is a question of fact. Hillyer v. Department of Homeland Security, EEOC Appeal No. 0120072290 (Aug. 29, 2008). 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 EEOC Management Directive 110, Chapter 9, at � VI.B. (Aug. 5, 2015).
As an initial matter, we affirm the AJ's finding of discrimination and unlawful retaliation, noting the Agency's concession to the finding and the ample support for it found in the record. As such, we will address Complainant's entitlement to compensatory damages, the remedy at issue in this complaint.
Compensatory Damages
Compensatory damages may be awarded for past pecuniary losses, future pecuniary losses, and non-pecuniary losses that are directly or proximately caused by the agency's discriminatory conduct. EEOC Enforcement Guidance: Compensatory and Punitive Damages Available Under Section 102 of the Civil Rights Act of 1991 (July 14, 1992) (available at www.eeoc.gov.) Non-pecuniary losses are losses that are not subject to precise quantification including emotional pain and injury to character, professional standing, and reputation. Compensatory damages are awarded to compensate for losses or suffering inflicted due to discrimination.
S1's harassment of Complainant started in August 2014, and caused her great discomfort and upset. As S1's harassment continued and escalated, Complainant could not sleep, did not know what to do, got stressed to the point of tears, and became depressed. The stress was so severe that Complainant had physical manifestations - loss of appetite, spiked blood pressure, hair loss, and coming to work made her feel physically ill. As a result, she was prescribed medication for insomnia, high blood pressure, and depression. S1's sexual harassment continued into March 2015, and beginning in April 2015, changed to retaliatory harassment. Hence, Complainant was subjected to a period of ongoing harassment for at least eight months (including the harassment by successor S1 in April 2015). At the time of the hearing in January 2017, Complainant still got anxious when going to work, making her feel physically sick.
We find that the AJ's award of $90,000 in nonpecuniary damages is supported by substantial evidence, and while at the high end of the range, is consistent with Commission cases. Cher C. v. Dep't of Veterans Affairs, EEOC Appeal No. 0120140445 (Jan. 9, 2017) (affirmed AJ's award of $95,000 in nonpecuniary damages following a hearing where the Agency launched a 7-month retaliatory campaign of harassment which included monitoring, informing her that her performance was below satisfactory, a reprimand, placement on a 60-day performance improvement plan, denial of a within-grade increase, and a three day suspension causing the complainant for about 18 months embarrassment, stress, loss of professional standing, one panic attack, and the exacerbation of her lupus symptoms); Meghann M. v. Social Security Administration, EEOC Appeal No. 0720150028 (Mar. 15, 2016) (affirmed AJ's award of $75,000 in nonpecuniary damages following a hearing where the Agency engaged in sex and reprisal discrimination when it removed the complainant, a Division Director, from management, first by involuntary detail and then permanently, which caused her anxiety, for which she took medication, crying episodes, impaired concentration, strained family relations, and an overall diminution in life's enjoyment).
Interest
Generally, as an initial matter, while prejudgment interest is paid on back pay, it is not paid on compensatory damages. In Ricardo K. v. Dept. of Justice, EEOC Appeal No. 0720170030 (Oct. 12, 2017), the Commission reversed an AJ's order that an agency pay prejudgment interest on a compensatory damage award, ruling that interest on compensatory damages does not begin to accrue until an agency actually incurs the underlying liability. Applying this rule, we reverse the AJ's award of interest. Since the amount of the liability is the subject of this appeal, the Agency will not incur liability for interest unless payment of Complainant's non-pecuniary damages award is delayed past the time frame set forth in our order below.
CONCLUSION
The Agency's final action is MODIFIED, and it is directed to comply with the orders below.
ORDER
The Agency is ordered to take the following remedial actions:
1. To the extent it has not already done so, pay Complainant $90,000 in non-pecuniary damages within 60 calendar days of the date of this decision.
2. Require in-person Workplace Civility and Bystander Intervention training3 for all managers and current supervisors, including supervisors deemed "204(b) [acting]," at the North Houston Processing and Distribution Center (P&DC) in Houston, Texas, and all employees in the flat sorter unit of that P&DC. For the above managers and supervisors, including 204(b) supervisors, the training must contain an additional unit on Title VII hostile work environment/harassment and retaliation relating to their legal obligations to prevent and stop harassment.4 The training must be commenced and completed within six months of this decision.5
3. Consider taking disciplinary action against S2 for her retaliation against Complainant. The Agency shall report its decision. 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.
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). Further, the report must include supporting documentation of the Agency's calculation of other benefits due Complainant, including evidence that the corrective action has been implemented.
POSTING ORDER (G0617)6
The Agency is ordered to post at its North Houston Texas P&DC in Houston, Texas copies of the attached notice. Copies of the notice, after being signed by the Agency's duly authorized representative, shall be posted both in hard copy and electronic format by the Agency within 30 calendar days of the date this decision was issued, and shall remain posted for 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 as directed in the paragraph entitled "Implementation of the Commission's Decision," within 10 calendar days of the expiration of the posting period. The report must be in digital format, and must 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)), 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 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. 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. 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. 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 25, 2018
__________________
Date
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.
2 Complainant had lived with her boyfriend since June 2002.
3 These types of training are described in EEOC's Report of the Select Task Force on the Study of Harassment in the Workplace (June 2016). (https://www.eeoc.gov/eeoc/task_force/harassment/report.cfm).
4 The AJ found that five of the six RMOs identified in her decision received no training on retaliation, one received no sexual harassment training, and four did not have such training in years. The AJ found that one of the RMOs failed to respond immediately and appropriately when he was notified of the harassment solely because of his insufficient or non-existent training on the requirements of Title VII.
5 To the extent that the Agency trained managers and supervisors, including 204(b) supervisors as ordered by the AJ after her decision on the provisions of Title VII, especially as they relate to hostile work environment/harassment and retaliation (regardless of whether it was done by an outside source/vendor), it need not retrain them on this pursuant to this order.
6 This order only applies if the Agency did not do a posting notice pursuant to the AJ's order.
---------------
------------------------------------------------------------
---------------
------------------------------------------------------------
2
0720180011
9
0720180011