Liz M.,1 Complainant,v.Megan J. Brennan, Postmaster General, United States Postal Service (Eastern Area), Agency.

Equal Employment Opportunity Commission

Oct 18, 2018

0720180020 (E.E.O.C. Oct. 18, 2018)

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

Liz M.,1
Complainant,

v.

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

Appeal No. 0720180020

Hearing No. 532-2013-00061X

Agency No. 4C-440-0095-10

DECISION

Following its March 12, 2018, final order, the Agency filed a timely appeal with the Equal
Employment Opportunity Commission (EEOC or Commission) pursuant to 29 C.F.R. §
1614.403(a). On appeal, the Agency requests that the Commission affirm the findings of an EEOC
Administrative Judge (AJ) that it did not discriminate against Complainant in violation of Title
VII of the Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. § 2000e et seq, or the Age
Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq. The
Agency also requests that the Commission affirm its rejection of the AJ’s order to award
Complainant compensatory damages issued pursuant to an uncontested finding of discrimination
in violation of Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29
U.S.C. § 791 et seq. Complainant filed a cross-appeal disputing the AJ’s findings of no
discrimination based on race, gender, age, and retaliation, as well as disputing the amount of
compensatory damages awarded. For the following reasons, the Commission MODIFIES the
Agency’s final order.

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.
0720180020

2
ISSUES PRESENTED

Whether the AJ properly found that the Manager of Post Office Operations, Complainant’s
immediate supervisor (S1), did not discriminate against her on the bases of race (Caucasian),
gender (female), age (47), and in reprisal for prior protected EEO activity by forcing her to use
annual and sick leave rather than reassign her to another facility between November 2009 and July
2010.

Whether the AJ properly awarded Complainant $80,000 in compensatory damages after finding
that S1 failed to reasonably accommodate Complainant’s disability (Post-Traumatic Stress
Disorder or PTSD) between November 2009 and July 2010 when he did not reassign her to a
different facility until July 2010, despite being informed of the need to do so.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a Postmaster, EAS-16,
at the Post Office facility in Diamond, Ohio. Between September 2008 and August 2009,
Complainant was stalked by a postal customer. Investigative Report (IR) 74. The stalking
culminated in an incident that occurred on August 14, 2009. Complainant reported the incident to
S1, who in turn notified the Inspection Service. S1 also terminated the customer’s post office box
rental agreement and banned him from entering the Diamond Post Office. These actions, however,
did not deter the customer from appearing at the facility.

On August 17, 2009, Complainant notified S1 that she could no longer work at the Diamond Post
Office because of the threatening conditions posed by the customer. She developed anxiety and
was eventually diagnosed with PTSD, for which she was given the prescription medications
Lexipro and Xanax. IR 68-69, 87-90, 92-104, 170, 173-82. Complainant’s symptoms were so
severe that she remained out of work between August 2009 and July 2010, using sick leave and
then annual leave to cover her absences. IR 76, 183-212; Hearing Transcript (HT) 127. During
that time, she made multiple requests to be assigned to another post office. IR 70-71. She averred
that S1 did not respond to her requests until June 22, 2010, at which time he granted her request to
be reassigned to the New Middletown, Ohio Post Office. IR 76. The reassignment became
effective on July 31, 2010, and on that date, she returned to duty. IR 71-72, 75, 97, 137.

On July 2, 2010, Complainant filed an EEO complaint in which she set forth the allegations
described above. At the conclusion of the ensuing investigation, the Agency provided
Complainant with a copy of the investigative report and notice of her right to request a hearing
before an AJ. Complainant timely requested a hearing. The AJ initially dismissed the hearing
request on the ground that Complainant had appealed the same matter to the Merit Systems
Protection Board, but in Complainant v. U.S. Postal Serv., EEOC Appeal No. 0120114079 (Mar.
26, 2013), the Commission remanded the case for a hearing after determining that the Board had
dismissed Complainant’s appeal for lack of jurisdiction.

0720180020

3
The hearing was eventually held on September 17-18, 2013, after which the AJ issued a decision
on January 31, 2018.2 The AJ found that Complainant had failed to establish a prima facie case
of race, sex, and age discrimination or retaliation in connection with the delay in reassigning
Complainant from the Diamond Post Office. The AJ did find, however, that S1 had failed to
reasonably accommodate Complainant’s PTSD in not reassigning Complainant until July 31,
2010. As relief, the AJ ordered the restoration of all annual and sick leave that Complainant had
used while she remained out of work between August 2009 and July 2010. The AJ also ordered
the Agency to award Complainant $80,000 in non-pecuniary compensatory damages.3

In its appeal, the Agency implemented that portion of the AJ’s decision finding no discrimination
on the basis of race, sex, age, or reprisal. The Agency did not contest the AJ’s finding that S1 had
failed to reasonably accommodate Complainant’s PTSD. It did, however, reject the AJ’s finding
of Complainant’s entitlement to compensatory damages.

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).

We begin our discussion with the AJ’s negative findings on Complainant’s disparate treatment
claim. To prevail on such a claim, Complainant must satisfy the three-part evidentiary scheme
fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). This
analysis applies to disparate treatment claims brought under the Rehabilitation Act. Prewitt v.
U.S. Postal Serv., 662 F. 2d 292, 310 (5th Cir. 1981). The AJ concluded that Complainant had
failed to prove that she had been subjected to disparate treatment based on race, sex, age or reprisal.
In particular, the AJ found that Complainant had not made out a prima facie case of discrimination
on any of these bases, noting Complainant’s failure to present evidence of similarly situated
comparative employees being treated differently than her.

2 The AJ who originally held the hearing resigned from the Commission prior to issuing a decision
following the hearing. The matter was assigned to a new AJ who issued a decision.
3 In the text of the decision, the AJ indicated that the award would be in the amount of $78,000.
The order, however, directs the Agency to award Complainant $80,000.
0720180020

4
On appeal, Complainant contends that she was similarly situated with a number of comparators
because she was in the same applicant pool as those individuals for various postmaster vacancies
and other positions that opened up between August 2009 and July 2010. She also maintains that
S1 had retaliated against her after she had initiated her EEO complaint.

Complainant’s first step is to establish a prima facie case by demonstrating that she was subjected
to an adverse employment action under circumstances that would support an inference of
discrimination or reprisal. Furnco Constr. Co. v. Waters, 438 U.S. 567, 576 (1978). Proof of a
prima facie case will vary depending on the facts of the particular case. McDonnell Douglas, 411
U.S. at 802 n. 13.

We will address Complainant’s reprisal claim first. To establish a prima facie case of reprisal,
Complainant must show that (1) he engaged in protected EEO activity; (2) the Agency was aware
of the protected activity; (3) subsequently, he was subjected to adverse treatment by the Agency,
namely no action taken by S1 on her requests for reassignments or lateral transfers; and (4) a nexus
exists between his protected activity and the adverse treatment. Whitmire v. Dept. of the Air Force,
EEOC Appeal No. 01A00340 (Sept. 25, 2000). At the hearing, Complainant testified that S1 had
retaliated against her for filing the instant EEO complaint. HT 120. According to the EEO
counselor’s report, Complainant had first contacted the EEO office regarding this matter on May
4, 2010 and the counselor first contacted S1 on May 25, 2010. IR 40, 42. This is sufficient to
establish the first two elements of Complainant’s reprisal claim. As to the third and fourth
elements, the AJ found no evidence that S1 treated Complainant differently regarding his failure
to reassign her from the Diamond Post Office after he had been contacted by the EEO counselor.
In fact, the opposite had occurred. On June 21, 2010, less than a month after being contacted by
the EEO counselor but before Complainant filed her formal complaint, S1 had notified
Complainant that he would grant her request for a lateral transfer to the New Middletown Post
Office as soon as her doctor released her to return to work. IR 94. We therefore agree that
Complainant did not establish a prima facie case of reprisal in connection with the Agency’s delay
in granting her request to be reassigned from the Diamond Post Office.

A prima facie case of disparate treatment is typically established through a demonstration that
similarly situated employees are treated differently than the individual claiming to have been
discriminated against. In order for a comparable employee to be considered similarly situated to
Complainant, all relevant aspects of Complainant's employment must be nearly identical to those
of the comparative employee. Emmett W. v. Dep’t of Veterans Affairs, EEOC Appeal No.
0120161400 (May 10, 2018) citing Payne v. Illinois Central Railroad, 665 F. Supp. 1038, 1043
(W.D. Tenn. 1987). Complainant identified seven comparative employees who she alleged S1
treated differently than her. C1, a black female younger than forty, was allegedly granted three
detail assignments by S1. Furthermore, Complainant alleged that S1 and C1 had a personal
relationship. C2, a black female younger than forty who was married to S1 and serving as the
Postmaster at Nives, Ohio, was allegedly given a two-year detail to Delivery Operations. C3, a
White male, was allegedly granted a detail and then a noncompetitive reassignment from
Postmaster at New Middletown, Ohio to Postmaster at Campbell, Ohio. C4, a White female, was
granted several details to other offices.
0720180020

5
C5, a White male was also granted details to various offices and positions. C6, a Black female
under forty was given acting supervisory details in various offices. C7, a White male part-time
flexible clerk in the Lowellville, Ohio Post Office, was given a detail as the Officer-In-Charge of
that post office. IR 80.

To be considered similarly situated with Complainant under the particular circumstances of this
case, comparative employees would have had to have come under S1’s supervision, perform the
same job function as Complainant, be on the same tour as Complainant, and have been given
reassignments or details as reasonable accommodations during roughly the same time period that
Complainant made her requests. See, e.g., Dominic S. v. Dep’t of the Army, EEOC Appeal No.
0120141956 (Dec. 2, 2016) citing Allen v. Dep’t of the Navy, EEOC Request No. 05900539 (June
15, 1990); Kalivretenos v. U.S. Postal Serv., EEOC Request No. 05890884 (Oct. 13, 1989);
Pritchard v. U.S. Postal Serv., EEOC Request No. 05880261 (July 19, 1988); Jackson v. Dep’t of
the Navy, EEOC Request No. 05880091 (June 22, 1988); Wright v. U.S. Postal Serv., EEOC
Request No. 05870622 (May 6, 1988).

As to C1, S1 averred that this individual was a clerk assigned to the Struthers, Ohio, Post Office,
who had neither asked for nor been awarded a reassignment as a reasonable accommodation. She
was asked to fill in on several occasions as an acting supervisor. She had also been detailed to the
position acting delivery supervisor at the Cortland, Ohio Post Office. Concerning C2, S1 averred
that his wife was not one of his employees and had never asked for a reasonable accommodation.
He stated that C2 was the postmaster in Niles, Ohio, and was on detail in Akron, Ohio. Regarding
C3, S1 averred that he had been on a detail as the Level EAS-18 Postmaster at Campbell, Ohio
since December 26, 2009. S1 also averred that he had assigned C3 to that position because the
previous Postmaster at Campbell had informed him that he was going to retire, effective January
3, 2010. With respect to C4, S1 averred that she was the Level 15 Postmaster of the New
Springfield, Ohio Post Office and had been sent on a detail to the Vienna, Ohio Post Office by
another manager, not by him. With respect to C5, S1 averred that he was the Level EAS-20
Postmaster at Columbiana, Ohio who had been detailed to the Niles, Ohio Post Office in December
2009. S1 stated that C5 had neither asked for nor had been given a reasonable accommodation.
As to C6, S1 averred that she was a clerk who had been detailed by the former Postmaster at
Campbell to fill in for a supervisor at that facility. S1 also averred that he had placed C6 on a 30-
day detail to the Girard, Ohio Post Office as an acting supervisor between May and June 2008,
after which she had returned to her original position. Concerning C7, S1 averred that he was a
clerk assigned to the Lowellville Post Office and that the former Postmaster of Lowellville had
placed C7 into a detail to fill in as Officer-In-Charge while he, the Postmaster, was away. C7
remained as Officer-In-Charge until the vacant Postmaster position was filled in June 2010. IR
117-18, 121-23, 131.

As can be seen from the foregoing discussion, not one of the comparatives is similarly situated to
Complainant. Many of them were clerks who had been detailed to acting supervisory or Officer-
In-Charge positions, and were therefore in non-management positions. None were Level EAS-16
postmasters and none had requested reassignment as a reasonable accommodation.
0720180020

6
Moreover, it is not even clear from the record that there were applicant pools for any of the details
and assignments given to these comparatives. We are therefore in agreement with the AJ that
Complainant has not established a prima facie case of discrimination on the bases of race, sex, or
age with respect to S1’s year-long delay in granting her request to be reassigned from the Diamond,
Ohio Post Office. And although comparative evidence is not the only way to establish a prima
facie case of discrimination, Complainant has not submitted any other evidence that would support
a prima facie inference of an unlawful motivation on the part of S1. See e.g. Page v. U.S. Postal
Serv., EEOC Appeal No. 01985694 (March 22, 2000) citing O’Connor v. Consol. Coin Caterers
Corp., 517 U.S. 308, 312-13 (1996); EEOC Enforcement Guidance on O'Connor v. Consol. Coin
Caterers Corp., EEOC Notice No. 915.002, n.4 (Sept. 18, 1996) (comparative evidence, while
sufficient to establish a prima facie case of discrimination, is not the only way to do so).

Nevertheless, for purposes of analysis, we will assume that Complainant has established a prima
facie case of discrimination on all four bases alleged under Title VII and the ADEA. The burden
of production would now shift to the Agency to articulate a legitimate, nondiscriminatory reason
for its actions. Tex. Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981). When asked
why he did not grant Complainant’s request to be reassigned from the Diamond Post Office until
June 2010, he averred that he did not become aware that Complainant had been diagnosed with
PTSD until he had received a letter from P2, a clinical psychologist to whom P1 had referred
Complainant, on December 15, 2009. IR 110. He also averred that he had received a number of
notices from P1 and P2 beginning on August 26, 2009 in which they stated that Complainant would
be unable to return to work because of work-related anxieties that resulted from being stalked. IR
87, 92, 98, 100, 111-12, 172-82. He stated that he had to wait for Complainant to be medically
cleared to return to work before he could act on Complainant’s reassignment request. We find that
the Agency has met its burden to rebut Complainant’s prima facie case of discrimination and
reprisal.

To ultimately prevail, Complainant must prove, by a preponderance of the evidence, that S1’s
explanation is pretextual. Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133 (2000); St.
Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 519 (1993). Pretext can be demonstrated by showing
such weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions in the
Agency's proffered legitimate reasons for its action that a reasonable fact finder could rationally
find them unworthy of credence. Qpare-Addo v. U.S. Postal Serv. EEOC Appeal No. 0120060802
(Nov. 20, 2007), req. for recon. den’d, EEOC Request No. 0520080211 (May 30, 2008). Indicators
of pretext include discriminatory statements or past personal treatment attributable to those
responsible for the personnel action that led to the filing of the complaint, comparative or statistical
data revealing differences in treatment across various protected-group lines, unequal application
of Agency policy, deviations from standard procedures without explanation or justification, or
inadequately explained inconsistencies in the evidentiary record. Mellissa F. v. U.S. Postal Serv.,
EEOC Appeal No. 0120141697 (Nov. 12, 2015). With respect to the bases of race, sex, age, and
reprisal, Complainant has presented neither affidavits, declarations, hearing testimony, or unsworn
statements from witnesses other than herself nor documents which contradict S1’s explanation for
the year-long delay in reassigning Complainant from the Diamond Ohio Post Office or which
otherwise call S1’s veracity or credibility into question regarding race, sex, and age discrimination
0720180020

7
or reprisal. We therefore find that Complainant has not proven that unlawful considerations of her
race, sex, age, or EEO complaint were motivating factors in S1’s almost year-long delay in
granting Complainant’s request for reassignment out of the Diamond Ohio Post Office.

As previously noted, the Agency did not contest AJ’s findings and conclusion that in not
reassigning Complainant from the Diamond Ohio Post Office for nearly a year after she made her
initial request, S1 had failed to reasonably accommodate her PTSD in violation of the
Rehabilitation Act. Consequently, we will move on to the relief ordered by the AJ. When
discrimination is found, the Agency must provide the Complainant with a remedy that constitutes
full, make-whole relief to restore her as nearly as possible to the position she would have occupied
absent the discrimination. See, e.g., Franks v. Bowman Transp. Co., 424 U.S. 747, 764 (1976);
Albemarle Paper Co. v. Moody, 422 U.S. 405, 418-19 (1975); Adesanya v. U.S. Postal Serv.,
EEOC Appeal No. 01933395 (July 21, 1994). In terms of equitable relief, the AJ found that
Complainant was forced to use sick leave and annual leave while the Agency failed to address her
reasonable accommodation request. The AJ ordered the Agency to restore all sick and annual
leave used by Complainant to cover her absences between August 17, 2009 and July 31, 2010.
Leave documentation establishes that Complainant took sick leave from August 26, 2009 through
December 31, 2009, and had taken annual leave from January 2, 2010 through June 25, 2010. IR
76, 183-212. The Agency does not contest the AJ’s leave restoration order.

The AJ also awarded compensatory damages in the amount of $80,000, but both parties contest
the amount of the award on appeal. Pursuant to section 102(a) of the Civil Rights Act of 1991, a
Complainant who establishes 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., or Section 501 of the
Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq. may receive
compensatory damages for past and future pecuniary losses (i.e., out-of-pocket expenses) and non-
pecuniary losses (e.g., pain and suffering, mental anguish) as part of this “make whole” relief. 42
U.S.C. § 1981a(b)(3). In West v. Gibson, 527 U.S. 212 (1999), the Supreme Court held that
Congress afforded the Commission the authority to award compensatory damages in the
administrative process. For an employer with more than 500 employees, such as the Agency, the
limit of liability for future pecuniary and non-pecuniary damages is $300,000. 42 U.S.C. §
1981a(b)(3).

To receive an award of compensatory damages, Complainant must demonstrate that she has been
harmed as a result of the Agency's discriminatory action; the extent, nature and severity of the
harm; and the duration or expected duration of the harm. Complainant v. Dep’t of the Navy, EEOC
Appeal No. 01934157 (July 22, 1994), req. for recon. den’d, EEOC Request No. 05940927 (Dec.
8, 1995); EEOC's Enforcement Guidance: 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) (“Guidance”). Complainant is required to provide objective evidence that will allow an
Agency to assess the merits of her request for damages. See Complainant v. Dep’t of the Navy,
EEOC Appeal No. 01922369 (Jan. 5, 1993). Furthermore, the award should take into account the
severity and duration of the harm. Complainant v. Dep’t of Agric., EEOC Appeal No. 01945652
(July 17, 1995).
0720180020

8

Initially, we review Complainant’s claim for pecuniary damages. 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. Margaret L. v. Dep’t of Veterans Affairs, EEOC Appeal No. 0120150582 (Apr. 17,
2018); Drew N. v. Dept. of Homeland Sec., EEOC Appeal No. 0120160208 (Jan. 11, 2018);
Melina K. v. Dep’t of Def., EEOC Appeal No. 0120152834 (Aug. 10, 2017). The AJ found that
Complainant failed to provide any documentation of her out-of-pocket medical expenses. On
appeal, Complainant contends that she is entitled to receive pecuniary damages in an amount
ranging from $20,000 to $100,000. Pharmacy records indicate that between August 1, 2009 and
May 10, 2010, Complainant incurred $77.76 in expenses covering Lexipro and Xanax, the two
prescription medications she had been taking during the time frame in question. IR 256-59. To
the extent that the Agency has not already done so, we will include pecuniary damages in the
amount of $77.76.

We must now resolve conflicting contentions between Complainant and the Agency regarding the
amount of non-pecuniary compensatory damages to be awarded. As noted above, the AJ awarded
$80,000. The Agency contests this amount of appeal, contending that Complainant is entitled to
no more than $10,000. Complainant also contests the size of the award, responding that she is
entitled to between $160,000 and $200,000.

Section 102(a) of the 1991 Civil Rights Act authorizes an award of compensatory damages for
non-pecuniary losses, such as, but not limited to, emotional pain, suffering, inconvenience, mental
anguish, loss of enjoyment of life, injury to character and reputation, and loss of health. We note
that damage awards for emotional harm are difficult to determine and that there are no definitive
rules governing the amount to be awarded in given cases. A proper award must meet two goals:
that it not be “monstrously excessive” standing alone, and that it be consistent with awards made
in similar cases. See Cygnar v. City of Chicago, 865 F.2d 827, 848 (7th Cir. 1989).

Non-pecuniary losses 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 (July 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. Dep't of the Treasury, EEOC
Appeal No. 01955789 (Aug. 29, 1997).

Evidence from a health care provider or other expert is not a mandatory prerequisite for recovery
of compensatory damages for emotional harm. See Lawrence v. U.S. Postal Serv., EEOC Appeal
No. 01952288 (Apr. 18, 1996) (citing Carle v. Dep't of the Navy, EEOC Appeal No. 01922369
(Jan. 5, 1993)).

0720180020

9
Objective evidence of compensatory damages can include statements from Complainant
concerning 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,
and 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.

Complainant has the burden of proving the existence, nature and severity of the alleged emotional
harm. Man H. v. Dep’t of Homeland Sec., EEOC Appeal No. 0120161218 (May 2, 2017).
Complainant must also establish a causal relationship between the alleged harm and the
discrimination. Id. Absent such proof of harm and causation, a Complainant is not entitled to
compensatory damages, even if there were a finding of unlawful discrimination. Id. See also e.g.
Wilda M. v. U.S. Postal Serv., EEOC Appeal No. 0120141087 (Jan. 12, 2017) (Awards for
emotional harm are warranted only if Complainant establishes a sufficient causal connection
between the Agency’s illegal actions and her injury).

Complainant averred that between August 2009 and July 2010, she experienced severe stress and
anxiety to the point at which she had been diagnosed with PTSD. She testified that her life had
been negatively affected by the Agency’s ongoing failure to reassign her to a facility other than
Diamond in that she suffered from insomnia, nightmares and panic attacks, developed an intense
fear of going anywhere alone, and withdrew from social activities. Her condition deteriorated to
the point at which she had to be put on two prescription medications, Lexipro and Xanax. IR 84-
85; HT 49-53, 62, 67, 70-72. Complainant’s husband testified that before the stalking incident,
they engaged in numerous activities together, and after the incident, Complainant had become
depressed and anxious, had suffered attacks, and had lost her sex drive. IR 103-04; HT 14-24.
Another Postmaster testified that he observed Complainant to be “scared and panicky,” and “on
the verge of crying.” HT 205-06. In addition, the notes from P1 and P2, the workers’
compensation forms that Complainant completed, and the pharmacy records all confirmed that
Complainant had been experiencing PTSD between August 2009 and July 2010. IR 86-90, 92-96,
98-102, 170-72, 174-182, 256-59.

The AJ’s findings that Complainant’s condition was caused by the stalker and aggravated by the
Agency’s failure to assign her to a different facility immediately upon becoming aware of the need
to do so are supported by substantial evidence of record. In terms of duration, P1’s letter dated
October 13, 2009 indicated that Complainant’s symptoms would resolve after she was moved to a
safe working environment. IR 87. This occurred when Complainant was reassigned to the New
Middletown Post Office in June 2010.
0720180020

10
The evidentiary record is not sufficient to demonstrate that Complainant’s condition persisted
beyond July 2010. We therefore find that the harm experienced by Complainant as a result of the
Agency’s failure to reassign her lasted for approximately one year.

This case presents circumstances similar to those presented in a series of recent decisions in which
the Commission has awarded non-pecuniary compensatory damages in the amount of $100,000.
In the most recent of these cases, Margaret L. v. Dep’t of Veterans Affairs, EEOC Appeal Nos.
0120150582 & 0120171877 (Apr. 17, 2018) we increased the employee’s award from $60,000 to
$100,000 based on findings that the employee had been diagnosed with major depression, recurrent
generalized anxiety disorder, and PTSD. The evidentiary record included declaration from the
employee, her physician, and several friends. Similarly, in Demarcus I. v. Dep’t of Def., EEOC
Appeal No. 0120150529 (May 4, 2017) a non-pecuniary damages award of $100,000 was
supported by affidavits from the employee, health-care providers, family members and long-time
friends who stated that he had been diagnosed with PTSD as a result of the extreme embarrassment
and humiliation he had suffered because of the harassment to which he had been subjected. These
witnesses stated that the employee had endured marital stress verging on divorce, loss of
consortium, loss of relationship with his children, loss of professional reputation, loss of ability to
perform his work, and anxiety that would be unbearable without medication. In Guess v. Envtl.
Prot. Agency, EEOC Request No. 0520120525 (May 17, 2013), we awarded $100,000 in non-
pecuniary compensatory damages, the employee was diagnosed with recurring symptoms of
anxiety and depression as a result of the Agency’s discriminatory action. The employee submitted
affidavits from herself, her sister, two co-workers, a close friend, her niece, and her physician.
Those affidavits describe the effects of the Agency’s discriminatory action, including insomnia,
nightmares, heart problems, high blood pressure, night sweats, migraine headaches accompanied
by nausea, and feelings of being severely depressed to the point of near-paralysis. Other symptoms
included chest pain, shortness of breath, crying, swelling in the eyes and weight gain. She was
prescribed the antidepressant Zoloft and advised to see a psychiatrist.

To the extent that Complainant desires to “send a message” to the Agency, her arguments are
misplaced. First, in assessing potential awards for non-pecuniary damages the proper focus is
upon the harm suffered, not the facts underlying the liability finding. See e.g. Charles E. v. Dep’t
of Justice, EEOC Appeal No. 0720180006 July 19, 2018) citing Memphis Cmty. School Dist. v.
Stachura, 477 U.S. 2999, 311-12 (1986). In other words, non-pecuniary compensatory damages
are designed to remedy the harm caused by the discriminatory event rather than punish the Agency
for the discriminatory action. See Ward-Jenkins v. Dep’t of the Interior, EEOC Appeal No.
01961483 (Mar. 4, 1999). Complainant’s express desire to “send a message” clearly reflects her
desire to see the Agency punished. Second, to the extent that Complainant’s statement about
sending a message can be interpreted as a demand for punitive damages, such a remedy is
inappropriate in federal sector discrimination cases. Bustamante v. U.S. Postal Serv., EEOC
Appeal No. 0120120185 (March 14, 2013), req. for recon. den’d EEOC Request No. 0520130382
(Sept. 18, 2013) citing 42 U.S.C. § 1981a(b)(1). See also e.g. Wagner v. Dep’t of Transp., EEOC
Appeal No. 0120113419 (Nov. 21, 2012); Robledo v. Dept. of Homeland Sec., EEOC Appeal No.
0120113438 (Oct. 21, 2011), req. for recon. den’d EEOC Request No. 0520120132 (May 24, 2012)
([P]unitive damages are not permitted in the federal sector EEO process).
0720180020

11

The Agency also contested the size of the award, arguing on appeal that it should be lower than
$10,000. It contends that the $80,000 award was monstrously excessive and that an amount under
$10,000 would be more appropriate. In cases where we have awarded $10,000, the size of the
award was attributable, in part to the lack of medical evidence in support of the employee’s claim.
See e.g. Ralph B. v. Dep’t of Homeland Sec., EEOC Appeal No. 0120161451 (Apr. 25, 2018)
($10,000 award appropriate where employee submitted no medical evidence to support claims of
stress, anxiety, depression, headaches or other symptoms, and report of vital signs submitted by
the employee was devoid of any data relating to the discriminatory incidents); Caneva v. Dept. of
Def., EEOC Appeal No. 01A32890 (July 15, 2004) ($10,000 in compensatory damages
appropriate where the employee became depressed after his nonselection but presented no medical
evidence). In this case, Complainant did present medical evidence to support her claim of
entitlement to non-pecuniary compensatory damages.

To summarize, after careful consideration of the evidence of record, the Commission concludes
that an award of $100,000 to be an appropriate amount.

CONCLUSION

Based on a thorough review of the record and the contentions on appeal, we AFFIRM that part of
the Agency’s final order finding no discrimination on the bases of race, sex, age, and reprisal in
connection with S1’s delay in reassigning Complainant from the Diamond, Ohio Post Office, but
we REVERSE that part of the Agency’s final order finding no entitlement to compensatory
damages for failure to provide Complainant with a reasonable accommodation.

ORDER (C0618)

To the extent that it has not already done so, the Agency is ordered to take the following remedial
action no later than sixty (60) calendar days after the date this decision is issued.

1. Restore to Complainant all annual and sick leave she had taken between August 14,
2009 and July 31, 2010, the period during which she had remained out of work as a
result of S1’s delay in reassigning Complainant from the Diamond, Ohio Post Office
to another facility.

2. Issue Complainant a check in the amount of $100,077.76 for compensatory damages
of which $100,000 shall be awarded for non-pecuniary damages and the remaining
$77.76 awarded for pecuniary damages to cover Complainant’s out-of-pocket medical
expenses.

3. The Agency shall provide eight (8) hours of in person or interactive EEO training to
the Manager of Post Office Operations identified in this decision as S1 if this individual
0720180020

12
is still employed by the Agency. Such training shall cover the Agency’s responsibilities
regarding the provision of reasonable accommodations under the Rehabilitation Act.

4. The Agency shall consider taking disciplinary action against the Manager of Post
Office Operations identified in this decision as S1 if this individual is still employed
by the Agency. The Commission does not consider training to be disciplinary action.
Within 30 days of the date this decision is issued, the Agency shall report its decision
to the Compliance Officer referenced herein. 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
identified responsible management official has left the Agency's employment, then the
Agency shall furnish documentation of her departure date.

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 back pay and
other benefits due Complainant, including evidence that the corrective action has been
implemented.

POSTING ORDER (G0617)

The Agency is ordered to post at its Diamond, Ohio 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 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).
0720180020

13
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.
0720180020

14
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.
0720180020

15
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

October 18, 2018
Date