07a50022
06-29-2005
Lea M. Smith, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, (Southeast Area), Agency.
Lea M. Smith v. United States Postal Service
07A50022
June 29, 2005
.
Lea M. Smith,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
(Southeast Area),
Agency.
Appeal No. 07A50022
Agency No. 4H-300-0130-01
Hearing No. 110-2002-8243X
DECISION
Following its November 12, 2004 final order, the agency filed a timely
appeal which the Commission accepts pursuant to 29 C.F.R. � 1614.405.
On appeal, the agency requests that the Commission affirm its rejection of
an EEOC Administrative Judge's (AJ) finding that the agency discriminated
against complainant in reprisal for prior EEO activity. The agency also
requests that the Commission affirm its rejection of the AJ's order to
award complainant damages in the amount of $85,000.00. For the following
reasons, the Commission REVERSES the agency's final order.
The record reveals that, during the relevant period, complainant
was employed as a City Carrier at the agency's Riverdale Post Office
in Georgia. Complainant filed a formal EEO complaint with the agency
on April 2, 2001, alleging that the agency discriminated against her
in reprisal for prior EEO activity when on or about January 8, 2001,
she was issued a removal decision which became effective February 9, 2001.
At the conclusion of the investigation, complainant was provided a copy
of the investigative report and requested a hearing before an AJ.
Following a hearing, the AJ found that complainant established a prima
facie case of reprisal discrimination. In particular, the AJ found that:
(1) complainant had engaged in prior EEO activity; (2) management was
aware of this protected activity; (3) she was removed from the agency;
and, (4) there was a nexus between complainant's engaging in protected
activity and the removal. The AJ found that the agency articulated
legitimate, nondiscriminatory reasons for its actions by stating that
complainant was excessively late and tardy. The AJ concluded that
complainant established that more likely than not, the reasons provided by
the agency were a pretext for retaliation. In reaching this conclusion,
the AJ found that an analysis of the attendance records showed employees
with comparable, if not worse, attendance records than complainant during
the periods of time at issue, received little or no discipline.
The agency's final order rejected the AJ's decision. On appeal, the
agency argues that it articulated a legitimate, nondiscriminatory reason
for the initiation of the proposed removal and the subsequent decision to
remove complainant. The agency also contends that, even if the removal
is found to be retaliatory, the amount of compensatory damages awarded
by the AJ was �monstrously excessive.�
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.
Thus, on appeal to this Commission, the burden is squarely on the
party challenging the AJ's decision to demonstrate that the AJ's
factual determinations are not supported by substantial evidence.
See EEO Management Directive-110, at 9-17 (Rev. 11/9/99). In this
case, this means that the agency has the burden of pointing out where
and why the AJ's findings are not supported by substantial evidence.
Cf. id. (pointing out that �[t]he appeals statements of the parties,
both supporting and opposing the [AJ's] decision, are vital in focusing
the inquiry on appeal so that it can be determined whether the [AJ's]
factual determinations are supported by substantial evidence�). In our
view, the agency has not done so.
Based on the foregoing, we discern no basis to disturb the AJ's
finding of discrimination. The findings of fact are supported by
substantial evidence, and the AJ correctly applied the appropriate
regulations, policies, and laws. With respect to the AJ's assessment
of the credibility of the hearing testimony, it is well-settled that
credibility determinations require more deference than other findings
of fact. See Universal Camera Corp. v. National Labor Relations Board,
340 U.S. 474, 496 (1951); Gaithers v. United States Postal Service,
EEOC Request No. 05890894 (November 9, 1989). We further note that,
in an administrative hearing where the motivation and credibility of
witnesses are critical, the credibility findings of the AJ are entitled
to great weight, unless there is substantial evidence in the record
to the contrary. See Anderson v. Bessemer City, North Carolina, 470
U.S. 564, 575 (1985).
Compensatory Damages
Pursuant to section 102(a) of the Civil Rights Act of 1991, a complainant
who establishes his or her claim of unlawful discrimination may receive
compensatory damages for non-pecuniary losses (e.g., pain and suffering,
mental anguish). 42 U.S.C. � 1981 a(b)(3). In addressing the question of
compensatory damages, the AJ concluded that complainant was entitled to an
award of non-pecuniary damages to compensate her for the intangible losses
she suffered. These can include, but are not limited to, emotional pain
and suffering, inconvenience, mental anguish, loss of enjoyment of life,
injury to character and reputation and loss of faith. The Supreme Court
has held that the Commission has the authority to award compensatory
damages in the federal sector EEO process. See West v. Gibson, 527
U.S. 212 (1999).
The particulars of what relief may be awarded, and what proof is
necessary to obtain non-pecuniary relief, are set forth in detail
in EEOC's Enforcement Guidance, Compensatory and Punitive Damages
Available Under Section 102 of the Civil Rights Act of 1991, Enforcement
Guidance, EEOC Notice No. 915.002 at pp. 12-13 (July 14, 1992) (Guidance).
Briefly stated, complainant must submit evidence to show that the agency's
discriminatory conduct directly or proximately caused the losses for
which damages are sought. Id. at 11-12, 14; Rivera v. Department of
the Navy, EEOC Appeal No. 01934157 (July 22, 1994) (the trier of fact
should also take into account the severity of the harm and the length
of the time that the injured party has suffered the harm). The amount
awarded should reflect the extent to which the agency's discriminatory
action directly or proximately caused harm to complainant and the extent
to which other factors may have played a part. Guidance at 11-12.
Non-pecuniary damages are available to compensate an injured party for
actual harm, even where the harm is intangible. Carter v. Duncan-Higgins,
Ltd., 727 F.2d 1225 (D.C. Cir. 1984). Emotional harm will not be presumed
simply because complainant is a victim of discrimination. Guidance at 5.
The existence, nature, and severity of emotional harm must be proved. Id.
We note that for a proper award of non-pecuniary damages, 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 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)).
In Carle v. Department of the Navy, the Commission explained that
evidence of non-pecuniary damages could include a statement by
complainant explaining how she was affected by the discrimination.
EEOC Appeal No. 01922369 (January 5, 1993). Complainant could also
submit documentation of medical or psychiatric treatment related to the
effects of the discrimination. Id. However, evidence from a health care
provider is not a mandatory prerequisite to establishing entitlement to
non-pecuniary damages. Sinnott v. Department of Defense, EEOC Appeal
No. 01952872 (September 19, 1996).
The Commission finds that the AJ properly determined that complainant
established a nexus between the removal and the retaliation. Therefore,
we will now review whether the AJ's award of $85,000.00 was appropriate.
The AJ arrived at $85,000.00 in non-pecuniary damages in the instant
case, based on complainant's own testimony regarding her stress
and health issues during the subject period. The AJ found that the
complainant showed that she suffered mental and physical pain consisting
of depression, anxiety, sleeplessness, marital problems that lead to a
divorce, loss of family and friends, excessive crying, chest pains, back
spasms, rashes, sharp abdominal pains and loss of weight. This testimony
was borne out by the complainant's submission of various statements from
a psychiatrist and a medical doctor.
Based on the foregoing, the Commission finds that the AJ appropriately
determined that complainant incurred these injuries due to the retaliatory
action and that she is entitled to an award of compensatory damages.
We must also review whether the AJ's award of non-pecuniary damages
was appropriate. The AJ determined that complainant was entitled to an
award of $85,000.00 based on the agency's retaliation. Upon review, the
Commission finds that this award is supported by the substantial evidence
of the record and is consistent with case precedent. See e.g. Bernard
v. Department of Veterans Affairs, EEOC Appeal No. 01966861 (July 17,
1998) ($80,000.00 in non-pecuniary damages awarded where affidavits
provided by complainant, friends, and co-workers described the emotional
distress that resulted from the agency's discriminatory actions); Santiago
v. Department of the Army, EEOC Appeal No. 01955684 (October 14, 1998)
($125,000.00 in non-pecuniary damages awarded where complainant suffered
depression and other emotional and mental disorders, severe chest and
stomach pains and digestive problems); and Bahaudin v. Department of
the Army, EEOC Appeal No. 01993594 (September 13, 2000) ($85,000.00
in non-pecuniary damages awarded where complainant produced evidence
indicating that the agency's discriminatory actions caused him to become
very irritable, distant, neglect his home duties, not eat, not want
to go to work and wake up at night and make sudden jerking movements).
We note that this sum is meant to compensate complainant for the emotional
distress she suffered, which was caused by the agency's retaliatory
actions. Finally, this amount meets the goals of not being motivated
by passion or prejudice, not being �monstrously excessive� standing
alone, and being consistent with the amounts awarded in similar cases.
See Cygnar v. City of Chicago, 865 F.2d 827, 848 (7th Cir. 1989).
Attorney's Fees and Other Costs
The Commission may award complainant reasonable attorney's fees and other
costs incurred in the processing of a complaint regarding allegations of
discrimination in violation of Title VII. 29 C.F.R. � 501(e). A finding
of discrimination raises a presumption of an entitlement to an award
of attorney's fees. Id. Attorney's fees shall be paid for services
performed by an attorney after the filing of a written complaint. Id.
As to the amount determined by the AJ, an award of attorney's fees
is determined by calculating the lodestar, i.e., by multiplying a
reasonable hourly fee by a reasonable number of hours expended. Hensley
v. Eckerhart, 461 U.S. 424 (1983); 29 C.F.R. � 1614.501(e)(2)(ii)(B).
There is a strong presumption that the number of hours reasonably
expended multiplied by a reasonable hourly rate, the lodestar,
represents a reasonable fee, but this amount may be reduced or increased
in consideration of the degree of success, quality of representation,
and long delay caused by the agency. 29 C.F.R. � 1614.501(e)(2)(ii)(B).
A reasonable hourly rate is the prevailing market rate in the relevant
community for attorneys of similar experience in similar cases.
Blum v. Stenson, 465 U.S. 886 (1984).
Based on the attorney's submission requesting attorney's fees in the
amount of $19,116.01, and in the absence of any opposition by the agency,
the AJ awarded complainant attorney's fees in the same amount. We note
that, on appeal, the agency does not contest the amount of attorney's
fees. Under these circumstances, we find no basis to alter the AJ's
award of $19,116.01 in attorney's fees.
The AJ also awarded complainant $1,730.00 in out-of-pocket expenses,
including: $15.00 for prescription drugs, $75.00 for co-payment, $200.00
ambulance fee, and $1,440.00 for late fees. The Commission notes that the
agency does not contest the AJ's award of costs and fees. Upon review, we
discern no basis to alter the AJ's award of $1,730.00 in costs and fees.
Therefore, after a careful review of the record, including arguments and
evidence not specifically discussed in this decision, the Commission
REVERSES the agency's final order and AFFIRMS the AJ's finding of
reprisal discrimination. The Commission directs the agency to take
corrective action in accordance with this decision and the Order below.
ORDER (C0900)
The agency is ordered to take the following remedial action:
Within thirty (30) calendar days of the date this decision becomes final,
the agency shall remove all references to the removal from complainant's
personnel records.
Within thirty (30) calendar days of the date this decision becomes
final, the agency shall determine the appropriate amount of back pay
with interest and other benefits due complainant for the 6 months of
lost wages as a result of having been removed from February 2001 through
July 2001.<1>
Within thirty (30) calendar days of the date this decision becomes final,
the agency shall provide complainant with a compensatory damages award
for non-pecuniary losses, to the extent that it has not already done
so, in the amount of $85,000.00 for the emotional distress suffered
by complainant that was proximately caused by the agency's unlawful
discrimination.
Within thirty (30) calendar days of the date this decision becomes final,
the agency shall pay complainant, to the extent that it has not already
done so, attorney's fees in the amount of $19,116.01 plus any reasonable
attorney's fees and costs incurred in the processing of this appeal.
See EEOC Management Directive 110, November 1999, Chapter 11.
Within thirty (30) calendar days of the date this decision becomes final,
the agency shall pay complainant, to the extent that it has not already
done so, costs and fees in the amount of $1,730.00.
Within one hundred and twenty (120) calendar days of the date this
decision becomes final, the agency shall provide eight (8) hours of EEO
training for the responsible management official(s) to sensitize them to
the issue of discrimination in the workplace, and to inform them of their
responsibilities as federal management officials to adhere to EEO laws.
The agency shall consider taking appropriate disciplinary action
against the responsible management official(s). 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(s) has/have left the agency's employ,
the agency shall furnish documentation of their departure date(s).
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 Riverdale Post Office 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 (K0501)
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 (M0701)
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 (S0900)
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 (Z1199)
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
June 29, 2005
__________________
Date
1She was reinstated on July 18, 2001 as a result of a grievance
proceeding.