0120141991
08-24-2016
Karma S.,1 Complainant, v. Megan J. Brennan, Postmaster General, United States Postal Service (Western Area), Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Karma S.,1
Complainant,
v.
Megan J. Brennan,
Postmaster General,
United States Postal Service
(Western Area),
Agency.
Appeal No. 0120141991
Agency No. 4E-800-0297-06
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Equal Employment Opportunity Commission (EEOC or Commission) accepts Complainant's appeal from the Agency's April 3, 2014 final decision on the issue of compensatory damages, concerning an equal employment opportunity (EEO) complaint claiming 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.
BACKGROUND
During the period at issue, Complainant worked as a Mail Processing Clerk at the Agency's Processing and Distribution Center in Denver, Colorado.
On December 12, 2006, Complainant filed a formal EEO complaint claiming the Agency discriminated against her on the basis of disability, and in reprisal for prior EEO activity, when:
1. on August 16, 2006, she was denied a bid as a Sales, Services Distribution Associate;
2. on September 17, 2006, she was harassed when she had to spend two hours with management officials completing her injury claim forms;
3. on October 23, 2006, she was offered a limited duty assignment which her doctor did not approve;
4. on December 19, 2006, she requested to return to work on Tour 2, her doctor released her to work to Tour 2 on January 2, 2007 but her request for light duty was denied on February 2, 2007; and
5. management made negative adjustments to her Thrift Savings Plan (TSP) account.
On October 15, 2007, the Agency issued a final decision finding no discrimination had been established on any of the claims. Complainant appealed.
On appeal, this Commission found that Complainant was an individual with a disability under the Rehabilitation Act because she was substantially limited in the major life of lifting. The Commission affirmed the Agency's finding of no discrimination with regard to claims 2-5, but determined that the evidence established that Complainant was discriminated against when, in August 2006, she was denied her bid for the position of Sales, Services, and Distribution Associate in the Glendale Branch of the Denver Post Office. Complainant v. U.S. Postal Service, EEOC Appeal No. 0120080613 (December 23, 2013).
Among the remedies ordered by the Commission in EEOC Appeal No. 0120080613 was for the Agency to conduct a supplemental investigation to determine Complainant's entitlement to compensatory damages under the Rehabilitation Act.
On April 3, 2014, the Agency issued the instant final decision awarding Complainant $5,000 in non-pecuniary compensatory damages. With respect to the non-pecuniary damage award, the Agency noted that record reflects that anxiety and stress Complainant experienced had pre-dated the denial of her bid by many years. Specifically, the Agency noted that Complainant submitted Progress Notes that indicated treatment for psychological problems since at least 2002 and she did not seek new treatment for stress and/or anxiety until September 20, 2006. The Agency also noted that on September 17, 2006, Complainant filed a claim for workers' compensation benefits and identified September 14, 2006, as the date of injury. Furthermore, the Agency noted that Complainant did not take time off until one month after her bid had been denied and simultaneously with the filing of her September 17, 2016 workers' compensation claim based on her September 14, 2006 injury. The Agency determined that it was not possible to conclude that Complainant had suffered any long term or even short term medical issues as a result of the August 16, 2006 denial of her bid.
Further, the Agency noted while Complainant alleged that she suffered an exacerbation of pre-existing conditions in her supplemental affidavits, she made no effort to identify the extent to which her conditions have been affected. The Agency determined that Complainant attributed her issues to her entire work history since she became a limited duty employee and did not differentiate any effects associated with the August 16, 2006 denial of her bid.
The Agency also noted that Complainant continued to work for nearly one month after her bid was denied and did not begin taking leave until 5 hours into her tour on September 14, 2006. Complainant acknowledged in her September 17, 2006 workers' compensation claim alleging stress and anxiety that the event which caused her such distress occurred on September 14, 2006, involving interaction with management about a change of schedule. Moreover, the Agency determined there was no evidence in the record indicating that the denial of Complainant's bid caused her to miss work.
Finally, the Agency noted that Complainant's daughters submitted statements indicating that their mother was upset about issues at work and that she would cry and exhibit sadness or stress when she spoke about those issues. The Agency noted, however, these statements do not address the denial of Complainant's bid. The Agency therefore found that Complainant was entitled to $5,000 in non-pecuniary compensatory damages, which it found was in line with similar awards in comparable cases decided by EEOC where the complainant experienced a temporary adverse reaction consisting of disappointment and frustration.
The Agency also denied Complainant's additional claim for pecuniary damages, determining insufficient evidence to support such an award. Specifically, the Agency stated that in support of her claim to be reimbursed for medical expenses for visits to her health providers and medication, Complainant submitted receipts for co-payments of $20.00 per visit on September 28, 2006, October 16 and 27, 2006, February 19, 2008, May 5, 2008, and September 10, 2008. As an initial matter, the Agency denied her request for reimbursement for the 2008 medical were too removed in time from the August 16, 2006 denial of her bid to establish that they were the result of the discrimination.
The Agency acknowledged that two visits in 2006 occurred less than three months of the August 16, 2006 denial of her bid. However, the Agency found that the record showed that Complainant attributed her increased stress to intervening events such as the Senior Manager, Distribution Operations, denying her request for a change of schedule, and her adverse reaction to having to spend two hours on September 17, 2006, filing out workers' compensation paperwork. Additionally, the Agency noted that the submitted receipts do not indicate what treatment was provided or offer any information that would allow a decision on whether the visits had anything to do with either issues at work or the issue involved in the Commission's finding of discrimination on the bid denial.
Further, the Agency noted that Complainant also requested reimbursement for purchases of her medication. The Agency determined that the attachments to Complainant's supplemental affidavit included five receipts from a Walgreens Drug Store, which had no dates and did not identify what items had been purchased. Complainant also included additional receipts from Walgreens which included dates and identified the medication purchased. The Agency noted, however, the record showed that Complainant had been prescribed all of these medications for many years. Complainant had not identified any changes in her medication regimen associated with the denial of her bid in August 2006, which would prompt an inference that the Agency should be responsible for the expense of medication.
Furthermore, the Agency determined that out of the nine purchases for which Complainant provided, five purchases occurred in 2007, 2008 and 2009, which the Agency found to be too removed in time from the denial of her bid to be considered for reimbursement.
The Agency also denied Complainant's request for out-of-pocket expenses. The Agency noted Complainant submitted $5,500 in bus fares from February 2010 to December 2012 which the Agency found were not related to the denial of her bid.
The instant appeal followed. On appeal, Complainant, other than merely seeking $650,000 in compensatory damages, provides no evidence to support the damages.
ANALYSIS AND FINDINGS
When discrimination is found, the agency must provide the complainant with full, make-whole relief to restore him/her as nearly as possible to the position s/he would have occupied absent the discrimination. See, Franks v. Bowman Transportation Co., 424 U.S. 747, 764 (1976); Albemarle Paper Co. v. Moody, 422 U.S. 405, 418-19 (1975); Adesanya v. Postal Service, EEOC Appeal No. 01933395 (July 21, 1994). The Commission recognizes that precise measurement cannot always be used to reduce the wrong inflicted. Nonetheless, we believe that the burden of limiting the remedy rests with the agency. See Davis v. U. S. Postal Service, EEOC Petition No. 04900010 (November 29, 1990).
Pecuniary Damages
Pecuniary losses are out-of-pocket expenses that are incurred as a result of the employer's unlawful action. Typically, these damages include reimbursement for medical expenses, job-hunting expenses, moving expenses, and other quantifiable out-of-pocket expenses. EEOC Enforcement Guidance on Compensatory and Punitive Damages Available Under Section 102 of the Civil Rights Act of 1991, EEOC Notice No. 915.002 at 11-12, 14 (July 14, 1992). Past pecuniary losses are losses incurred prior to the resolution of a complaint. Id. at 8-9. Future pecuniary are losses that are likely to occur after resolution of a complaint. Id. at 9. For claims seeking pecuniary damages, such objective evidence should include documentation of out-of-pocket expenses for all actual costs and an explanation of the expense, e.g., medical and psychological billings, other costs associated with the injury caused by the Agency's actions, and an explanation for the expenditure. Id. at 9. Here, Complainant has not presented adequate evidence to support any entitlement to pecuniary compensatory damages as discussed above. Therefore, we affirm the Agency's decision not award Complainant pecuniary damages.
Non-pecuniary Damages
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 Notice No. 915.302 at 10 (May 14, 1992). 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. Department of the Treasury, EEOC Appeal No. 01955789 (August 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. Furthermore, compensatory damages should not be motivated by passion or prejudice or "monstrously excessive" standing alone but should be consistent with the amounts awarded in similar cases. See Ward-Jenkins v. Department of the Interior, EEOC Appeal No. 01961483 (March 4, 1999).
Evidence from a health care provided or other expert is not mandatory prerequisite for recovery of compensatory damages for emotional harm. See Lawrence v. U.S. Postal Service, EEOC Appeal No. 01952288 (April 18, 1996) (citing Carle v. Department of the Navy, EEOC Appeal No. 01922369 (January 5, 1993). Objective evidence of compensatory damages can include statements from 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, emotional distress, loss of self-esteem, excessive fatigue, or a nervous breakdown. Id. 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.
Based on the above, we find that the award of $5,000 is warranted in this case. This amount takes into account the severity of the harm suffered and is consistent with prior Commission precedent. See Tuala v. Department of the Navy, EEOC Appeal No. 01A13645 (August 30, 2002) ($5,000 awarded in in non-pecuniary damages where complainant experienced depression, humiliation, and injury to his reputation, and where testimony was general, with no supporting objective or medical evidence, and evidence of other contributing factors); See also Ko v. Department of Homeland Security, EEOC Appeal No. 07A20134 (December 1, 2003) ($5,000 awarded in non-pecuniary damages where complainant testified that he was disappointed and discouraged). We find the non-pecuniary damages award appropriate and, accordingly, AFFIRM the Agency's final decision.2
ORDER
Within thirty (30) calendar days from the date this decision becomes final, the Agency shall, if it has not already done so, send Complainant a payment in the amount of $5,000 representing a non-pecuniary compensatory damages award for the discriminatory denial of her bid in August 2006.
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
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 (R0610)
This is a decision requiring the Agency to continue its administrative processing of your complaint. However, if you wish to file a civil action, you have the right to file such action in an appropriate United States District Court within ninety (90) calendar days from the date that you receive this decision. 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 filed your appeal with the Commission. 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. 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
August 24, 2016
__________________
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 The record reflects that on May 7, 2014, the Agency sent a check to Complainant in the amount of $5,000.
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