07a50088
01-31-2006
Marjorie Parrott, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Marjorie Parrott v. United States Postal Service
07A50088
January 31, 2006
.
Marjorie Parrott,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 07A50088
Agency No. 4-J-530-0074-04
Hearing No. 260-05-00096X
DECISION
The agency filed the instant appeal following the agency's August 11,
2005 notice of final action refusing to implement the portion of the
EEOC Administrative Judge's (AJ) decision dated June 30, 2005, finding
race (African-American) discrimination in complainant's complaint.
The portion of the AJ's decision finding no discrimination has not been
appealed by complainant and is not at issue in the instant appeal.
The AJ described the complaint as only being based on race
(African-American) although the complaint form lists other bases
of discrimination. Complainant does not argue on appeal that the AJ
misdefined the bases in the complaint. After holding a hearing, the
AJ found that the agency discriminated against complainant on the bases
of race (African-American) when: (1) the agency denied complainant sick
leave benefits for March 4, 2004; and (2) the agency told Coworker A not
to talk to complainant. The AJ found that complainant was not entitled to
reinstatement of sick leave benefits because complainant was eventually
granted all of her sick leave benefits that she was due. The AJ awarded
$2,000 in non-pecuniary compensatory damages. The AJ also found that
complainant was entitled to reasonable attorney's fees and costs.
On appeal, the agency argues that it did not discriminate against
complainant, that the sick leave claim is moot, that the claim involving
Coworker A was not part of the complaint, that the claim involving
Coworker A fails to state a claim, and that the damages awarded are
not supported by the record. Complainant requests on appeal that the
Commission uphold the findings of discrimination and the award of $2,000
for compensatory damages.
As an initial matter, we find that the claim that Coworker A was told
not to talk with complainant failed to render complainant aggrieved
and is properly dismissed for failure to state a claim pursuant to 29
C.F.R. �1614.107(a)(1). The alleged instruction to Coworker A does
not involve a term, condition, or privilege of complainant's employment
and did not result in any concrete harm to complainant. Therefore, the
AJ's finding of discrimination regarding the claim concerning Coworker
A shall be reversed. Because of our disposition of this claim, we do
not address the merits of this claim and we do not address whether this
claim was properly before the AJ.
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.
Regarding the sick leave claim, we find that the claim is not moot.
Complainant alleged, and the AJ found, that complainant was denied
a portion of her sick leave request for four hours. The AJ found
that complainant was ultimately granted all sick leave benefits.
The claim is not moot, however, because complainant is entitled to
compensatory damages. As far as whether the denial of the sick leave was
discriminatory, complainant's supervisor asserted that she believed that
only two hours were necessary for complainant's medical appointment. The
AJ found this reason to be not believable:
Complainant was denied use of her sick leave benefits when she obviously
had sick leave benefits available. The Agency's reason for its conduct
is not credible. . . . She was eventually denied the use of two hours
sick leave. The record supports the Complainant's allegation that
none of the employees outside of her protected group were subjected to
similar treatment.
Substantial evidence in the record supports this conclusion and we find
that complainant was discriminated against on the basis of her race
(African-American).
The AJ found that complainant suffered stress as a result of the
discriminatory sick leave denial. Complainant testified that she saw her
family doctor regarding the stress she felt from the discrimination and
stated that the doctor prescribed Zoloft for the stress. Complainant
stated that some of the stress resulted from �a couple of deaths in
the family.� Complainant stated that her depression caused her to lose
interest in �the family activities, [her] grandchildren, [her] husband,
[her] own kids, friends, attending events, no sex life.� The Commission
finds that the AJ's findings regarding complainant's harm are supported
by substantial evidence of record.
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. See Rivera v. Department of the Navy,
EEOC Appeal No. 01934157 (July 22, 1994), request for reconsideration
denied, EEOC Request No. 05940927 (December 11, 1995); Compensatory and
Punitive Damages Available Under Section 102 of the Civil Rights Act of
1991, EEOC Notice No. N 915.002 at 11-12, 14 (July 14, 1992). An award
of compensatory damages for non-pecuniary losses, including emotional
harm, should reflect the extent to which the respondent directly or
proximately caused the harm, and the extent to which other factors
also caused the harm. The Commission has held that evidence from a
health care provider is not a mandatory prerequisite for recovery of
compensatory damages. See Carpenter v. Department of Agriculture, EEOC
Appeal No. 01945652 (July 17, 1995). The absence of supporting evidence
may affect the amount of damages deemed appropriate in specific cases.
See Lawrence v. USPS, EEOC Appeal No. 01952288 (April 18, 1996).
In determining compensatory damages, the Commission strives to make
damage awards for emotional harm consistent with awards in similar cases.
Insofar as complainant has submitted evidence of emotional distress,
we note that the Commission has awarded compensatory damages in cases
somewhat similar to complainant's in terms of harm sustained. See e.g.,
Pailin v. Department of Defense, EEOC Appeal No. 01954350 (January 26,
1998)($2,500.00 in non-pecuniary damages awarded where complainant
was denied training and testified that she experienced tension,
depression, and a withdrawal from coworkers). The Commission finds
Pailin analogous to the instant matter with respect to the nature,
severity, and duration of the harm. After considering the nature of
the agency's discriminatory action, we find the award of $2,000.00
in non-pecuniary damages appropriate. The Commission notes that this
award does not include any relief for the claim involving Coworker A.
Furthermore, the Commission also finds that much of the harm cited by
complainant was due to factors in her life apart from the discriminatory
sick leave denial. No compensatory damages attributable to factors other
than employment discrimination have been included in the $2,000.00 award.
Finally, we note that this award in not �monstrously excessive� and is
consistent with the amounts awarded in similar cases.
CONCLUSION
Accordingly, the agency's notice of final action is MODIFIED and the
matter is REMANDED to the agency for further action in accordance with
the Order listed below.
ORDER
The agency shall:
Within 30 days of the date this decision becomes final, pay complainant $
2,000.00 in non-pecuniary compensatory damages;
Within 180 days of the date this decision becomes final, the agency
shall provide EEO training to all individuals who were responsible for
the discrimination in the instant complaint;
Within 30 days of the date this decision becomes final, post a notice
(attached to this decision) on all employee bulletin boards at the
agency's Human Resources Office in the Lakeland District facility in
Milwaukee, Wisconsin, that it has engaged in discrimination against
complainant and that it will take all steps necessary to assure that
future discrimination is eliminated; and
Within 30 days of the date this decision becomes final, consider taking
disciplinary action against the individuals responsible for making
the agency's decision in this matter. If the agency decides to take
disciplinary action, it shall identify it in a compliance report the
action taken. If the agency decides not to take disciplinary action,
it shall set forth in its compliance report the reason(s) for its
decision not to impose discipline.
The agency shall submit evidence showing compliance with this decision
to the Compliance Officer referenced herein under Implementation of the
Commission's Decision.
POSTING ORDER (G0900)
The agency is ordered to post at its Human Resources Office in the
Lakeland District facility in Milwaukee, Wisconsin, 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 (T0900)
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 (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
January 31, 2006
__________________
Date
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
An Agency of the United States Government
This Notice is posted pursuant to an Order by the United States Equal
Employment Opportunity Commission, dated _____________________ ,which
found that a violation of Title VII of the Civil Rights Act of 1964, as
amended, 42 U.S.C. � 2000e et seq. has occurred at the Human Resources
Office in the Lakeland District facility in Milwaukee, Wisconsin
(hereinafter �facility�).
Federal law requires that there be no discrimination against any
employee or applicant for employment because of the person's RACE,
COLOR, RELIGION, SEX, NATIONAL ORIGIN, AGE or PHYSICAL OR MENTAL
DISABILITY with respect to hiring, firing, promotion, compensation,
or other terms, conditions or privileges of employment.
The facility supports and will comply with such Federal law and will
not take action against individuals because they have exercised their
rights under law.
The facility was found to have unlawfully discriminated against the
individual affected by the Commission's findings on the basis of race.
The agency has been ordered to remedy the discrimination by: providing
complainant compensatory damages; paying attorney's fees; and training
the responsible officials in EEO law. The facility will ensure that
officials responsible for personnel decisions and terms and conditions
of employment will abide by the requirements of all Federal equal
employment opportunity laws.
The facility will not in any manner restrain, interfere, coerce, or
retaliate against any individual who exercises his or her right to
oppose practices made unlawful by, or who participates in proceedings
pursuant to, Federal equal employment opportunity law.
___________________________
Name and Title
Date Posted: _____________________
Posting Expires: _________________
29 C.F.R. Part 1614