Herta R.,1 Complainant,v.Megan J. Brennan, Postmaster General, United States Postal Service (Southeast Area), Agency.

Equal Employment Opportunity Commission

May 6, 2016

0720150020 (E.E.O.C. May. 6, 2016)

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

Herta R.,1
Complainant,

v.

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

Appeal No. 0720150020

Hearing No. 410-2013-00248X

Agency No. 4G-320-0173-12

DECISION

Following its February 18, 2015, final order, the Agency filed an appeal with the Equal
Employment Opportunity Commission (Commission). On appeal, the Agency requests that the
Commission affirm its rejection of the relief ordered by an Equal Employment Opportunity
Commission Administrative Judge (AJ) following a 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.
For the following reasons, the Commission MODIFIES the Agency’s final order.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a Letter Carrier at
the Agency’s facility in Savannah, Georgia. On September 11, 2012, Complainant filed an
EEO complaint alleging that the Agency discriminated against her on the basis of reprisal for
prior protected EEO activity when:

1. since June 5, 2012, and continuing, management subjected her to a hostile work
environment pertaining to her work performance, denied her a voice of employee
survey, and issued her several pre-disciplinary interviews;
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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2. on August 28, 2012, management issued her a letter of warning;
3. on November 28, 2012, management denied her leave;
4. on November 28, 2012, management gave her two pre-disciplinary interviews;
5. on December 14, 2012, management issued her a letter of warning; and
6. on December 15, 2012, management issued her a notice of 7-day suspension.

At the conclusion of the investigation, the Agency provided Complainant with a copy of the
report of investigation and notice of her right to request a hearing before AJ. Complainant
requested a hearing and the AJ held a hearing on August 12, 2014. The AJ issued a decision
on November 17, 2014, finding that Complainant established that the Agency subjected her to
unlawful reprisal harassment as alleged. The AJ then held a hearing to determine
Complainant’s entitlement to damages, and issued a decision on October 21, 2014, awarding
Complainant $300.00 in pecuniary damages, and $70,000.00 in nonpecuniary, compensatory
damages. The AJ also ordered the Agency to post a notice of the finding of discrimination and
provide EEO training to management.

The Agency subsequently issued a final order implementing the AJ’s finding that Complainant
proved that she was subjected to discrimination as alleged, but rejecting the decision awarding
Complainant pecuniary and nonpecuniary damages. On appeal, the Agency argues that the AJ
erred in issuing pecuniary damages as Complainant failed to provide any evidence to
substantiate her claimed expenses. The Agency also argues that the AJ erred in awarding
Complainant $70,000.00 in nonpecuniary, compensatory damages and requests that the
Commission lower the award to $10,000.00. In response, Complainant requests that we affirm
the AJ’s decision.

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.

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).

Initially, we note that the Agency has not appealed the finding of discrimination and therefore,
we shall restate the remedies awarded by the AJ except as modified in this decision.

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Pursuant to section 102(a) of the Civil Rights Act of 1991, a complainant who establishes his
or her claim of 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. may receive compensatory
damages for past and future pecuniary losses (i.e., out-of-pocket expenses) and nonpecuniary
losses (e.g., pain and suffering, mental anguish) as part of “make whole” relief. 42 U.S.C.
§1981a(b)(3). In this regard, the Commission has authority to award such damages in the
administrative process. See e.g. Stokes v. Department of Homeland Security, EEOC Appeal
No. 0120071802 (December 10, 2008).

With respect to nonpecuniary compensatory damages, these 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).
Objective evidence in support of a claim for non-pecuniary damages claims includes statements
from Complainant and others, including family members, co-workers, and medical
professionals. 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); Carle v.
Dep't of the Navy, EEOC Appeal No. 01922369 (January 5, 1993). Nonpecuniary damages
must be 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. Additionally, the amount of the award 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 Jackson v. U.S. Postal Serv., EEOC Appeal No.
01972555 (April 15, 1999) (citing Cygnar v. City of Chicago, 865 F. 2d 827, 848 (7th Cir.
1989)). Finally, we note that in determining nonpecuniary, compensatory damages, the
Commission has also taken into consideration the nature of the Agency’s discriminatory
actions. See Utt v. U.S. Postal Serv., EEOC Appeal No. 0720070001 (Mar. 26, 2009);
Brown-Fleming v. Dep't of Justice, EEOC Appeal No. 0120082667 (Oct 28, 2010).

Here, the AJ awarded Complainant $70,000.00 in nonpecuniary, compensatory damages,
finding that the harassment suffered by Complainant resulted in her experiencing anxiety
attacks and worsening depression. Complainant testified that management’s harassing actions
affected her professionally in the way her coworkers treated her, and that there were occasions
when she would cry in the ladies’ room while on duty. She also stated that she suffered
headaches, insomnia, light headedness and dizziness, social impairment, difficulty in
communicating with her spouse, increased agitation, shortness of temper, and an impairment
of her thinking and ability to perform tasks. The AJ also found, however, that Complainant
had a preexisting diagnosis of depression and anxiety, and that she had experienced sleep
issues, migraine headaches, and suffered a heart attack prior to the incidents addressed in the
instant decision. We find given Complainant’s testimony that the AJ’s award of $70,000.00 is
supported by the evidence of record. Based upon awards in similar cases and after considering
the nature, severity, and duration of Complainant's harm, we find that an award of $70,000.00
is proper and not monstrously excessive. See, e.g., Banks v. Social Security Admin., EEOC
Appeal No. 0720100014 (April 27, 2012) ($65,000 in nonpecuniary, compensatory damages

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awarded when complainant testified that she incurred sleeplessness, damage to her social
relationships, diminished pleasure in activities, decreased confidence at work, a loss of self-
esteem, concern for job safety, and muscular pain and anxiety/depression as a result of the
agency's actions) (citing Viers v. United States Postal Serv., EEOC Appeal No. 01A14246
(June 20, 2002) ($65,000 in nonpecuniary, compensatory damages awarded when complainant
stated that she suffered fatigue, insomnia, marital strain, anxiety, loss of self-esteem,
depression, and withdrawal due to harassment)).

Pecuniary damages are quantifiable out-of-pocket expenses incurred as a result of the Agency's
discriminatory actions. Damages for past pecuniary damages will not normally be granted
without documentation such as receipts, records, bills, cancelled checks, or confirmation by
other individuals of actual loss and expenses. Here, although Complainant testified at hearing
that she was requesting reimbursement of her costs for mileage to doctor’s appointments,
medication, and postage, she failed to specify exact dollar amounts related to these costs and
stated only vague approximations. She also failed to provide any receipts or other evidence
establishing actual loss or expenses. As such, we find that the AJ erred in awarding her
$300.00 in pecuniary damages. We shall restate the additional remedial relief which is slightly
modified and we shall not restate the posting notice requirement as the record indicates the
Agency already posted the notice of finding of discrimination.

CONCLUSION

Accordingly, we AFFIRM the AJ’s decision finding reprisal discrimination and the AJ’s
nonpecuniary, compensatory damage award. We MODIFY the Agency’s final order regarding
pecuniary compensatory damages. The Agency shall comply with the ORDER herein.

ORDER

To the extent it has not already done so, the Agency shall take the following remedial actions:

1. Within 60 days of the date on which this decision becomes final, the Agency shall
pay Complainant $70,000.00 in nonpecuniary, compensatory damages.
2. Within 180 days of the date on which this decision becomes final, the Agency shall
provide training to Agency employees found to have discriminated against
Complainant on their rights and responsibilities under EEO law, with particular
focus on preventing unlawful retaliation.
3. The Agency shall consider taking disciplinary action against responsible Agency
employees found to have discriminated against Complainant. The Agency shall
report its decision to the Commission. If the Agency decides to take disciplinary
action, then it shall identify the action taken. If the Agency decides not to take
disciplinary action, then it shall set forth the reasons for its decision not to impose
discipline.

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The Agency is further directed to submit a report of compliance, as provided in the statement
entitled “Implementation of the Commission's Decision.”
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 (M0416)

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

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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 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. The requests 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 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

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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

May 6, 2016
Date