01a45838
07-12-2005
Maxine Nixon, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Maxine Nixon v. United States Postal Service
01A45838
July 12, 2005
.
Maxine Nixon,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A45838
Agency Nos. 4H-370-0153-00, 4H-370-0205-00, 4H-370-0153-01, 4H-370-0079-02
Hearing Nos. 250-2001-8162X, 250-2001-8302X, 250-2002-8319X,
250-2003-8010X
DECISION
Complainant initiated an appeal with the Commission concerning the amount
of compensatory damages to which she is entitled as a result of a finding
of discrimination in violation of Title VII of the Civil Rights Act of
1964 (Title VII), as amended, 42 U.S.C. � 2000e et seq.
ISSUE
The issue on appeal is whether the agency properly determined that
complainant was entitled to payment of $12,000.00 in compensatory damages.
ANALYSIS
During the relevant time complainant was employed at the agency's Jackson,
Tennessee facility. The record reveals that complainant had been
working as Supervisor, Customer Services in Decatur, Illinois until she
transferred to Jackson, Tennessee in March 1999. Complainant agreed to
take the position in Jackson as a Part Time Flexible when she transferred,
but thought she would continue working days and thought she was going to
be working as a window clerk. The record reveals that when she started
working at Jackson she was an unassigned PTF on Tour 1, the midnight tour.
Complainant planned on working her way back into management and applied
for management opportunities when they arose.
Complainant filed four formal complaints of discrimination against
the agency. In her first complaint dated April 25, 2000, complainant
alleged that she was subjected to discrimination based on race (Black)
and sex (female) when she became aware in February 2000, that the agency
would not allow her to serve as a 204B (Acting Supervisor).
In her second complaint dated August 25, 2000, complainant alleged that
she was subjected to discrimination based on race (Black), sex (female),
and age (44) when on April 12, 2000, the agency denied complainant an
Officer-in-Charge position.
In her third complaint dated May 11, 2001, complainant alleged that she
was subjected to discrimination based on race (Black), sex (female), age
(44), and in retaliation for prior EEO activity when on March 23, 2001,
complainant became aware that two employees were selected for Supervisor,
Customer Services, EAS-16, while she was not selected for either position.
In her fourth complaint dated December 24, 2001, complainant alleged
that she was subjected to discrimination based on sex (female) and
in retaliation for prior EEO activity when on October 13, 2001, the
agency did not select her for a Supervisor, Customer Services position
at Jackson, Tennessee.
Following the investigation of her complaints, complainant requested
a hearing on her complaints before an EEOC Administrative Judge (AJ).
Following a hearing, the AJ issued a decision on February 3, 2004,
finding that the agency discriminated against complainant when she was
not selected for the 204B position in February 2000, when she was denied
the opportunity to serve in an Officer-in-Charge position in April 2000,
when she was not selected as Supervisor, Customer Service in March
2001, and when she was not selected as Supervisor, Customer Services
in October 2001. As relief for the discrimination, the AJ ordered the
agency, among other remedies, to attempt to agree with complainant what
amount of compensatory damages was due. The AJ ordered the parties
to request a hearing on the matter if no compensatory damage agreement
could be reached. In a February 24, 2004 decision, the agency adopted
the findings of the AJ.
Subsequently, on May 27, 2004, the AJ held a hearing to take evidence
regarding the issue of compensatory damages. The AJ issued a decision
the same day noting that complainant presented the testimony of five
witnesses and herself and the agency presented no witnesses. The AJ
noted complainant stated she was frustrated, upset and angry because of
the treatment she received by the agency. The AJ stated that complainant
testified that she talked to her husband regarding the discrimination, but
did not confide in her family in Illinois because she did not want them
to worry and instead spoke to co-workers, including Person A, Person B,
Person C and Person D. The AJ noted that complainant stated she would
pray when she got upset and Person C confirmed this. The AJ noted that
complainant testified that she became obsessive about the agency and her
daughter said it was all she talked about. The AJ noted that complainant
testified that she was still affected by her non-selections.
Upon hearing the testimony of the witnesses, the AJ found complainant not
entirely reliable regarding the extent of harm suffered. The AJ noted
complainant expressed feelings suggesting she wanted to punish the agency.
The AJ found that although complainant said that she was still affected
by the non-selections, her husband and Person C stated that they noticed
a temporary difference in complainant right after each non-selection.
The AJ recognized that her husband said that after the selections she
became less talkative and less witty, he stated that he counseled her
and afterwards she was �fine.� The AJ noted that complainant's husband
said that their personal relationship did not suffer except that she was
not as talkative. The AJ found the testimony of complainant's husband
consistent with Person C's testimony that complainant would be upset
each time she was not selected on a �temporary basis� which lasted for
about a month each time.
The AJ noted that more than one witness testified that complainant
would get �teary eyed� and she was seen crying once or twice at work.
The AJ found it credible that complainant cried on occasion upon learning
that she was not selected. However, the AJ noted that when questioned
about what made him think his wife was �down� after the non-selections,
complainant's husband did not say that she cried but instead said she
was not as talkative and witty and was not as outgoing. Further, the AJ
found that complainant's oldest daughter did not want to leave Illinois
and stayed to complete high school there which the AJ noted would be
expected to cause some distress. Additionally, the AJ found Person C
credible when he stated that he first noticed a change in complainant
weeks after she transferred to Jackson because she had requested day
shift hours and got the midnight shift and because she was working in a
PTF position after having been a supervisor. The AJ noted that Persons
A, B and D testified that complainant's condition worsened over time;
however, the AJ noted that these three have also had issues with the
agency and found their testimony not as reliable as the testimony of
complainant's husband.
The AJ concluded that it was likely that with each selection,
complainant's distress was worse and may have lasted longer. The AJ
awarded complainant compensatory damages as follows: $500.00 for the
non-selection to the 204B position in February 2000, $1,500.00 for
being denied the Officer-in-Charge opportunity, $4,000.00 for not being
selected as Supervisor, Customer Services in March 2001, and $6,000.00
for the non-selection in October 2001.
The agency apparently failed to issue its final order within forty days
of receipt of the AJ's decision on compensatory damages. Therefore, the
AJ's decision on compensatory damages became the agency's final order.
See 29 C.F.R. � 1614.109(i).
On appeal, complainant requested greater compensatory damages than
those awarded to her by the AJ. Complainant noted that the agency's
discriminatory actions began in early 2000 and continued through the
latter part of calendar year 2001. Complainant stated that her testimony
and that of her witnesses showed that after each discriminatory event,
she suffered emotionally. Complainant stated that there was no evidence
that outside factors contributed to the emotional harm she suffered.<1>
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).
After a careful review of the record, we find the award of $12,000.00 in
non-pecuniary damages was appropriate. The AJ found complainant credibly
testified that she was upset and angry because of the treatment she
received at the Jackson facility. The AJ noted that although complainant
stated that she was still affected by the discrimination, the AJ found
that complainant was not entirely reliable regarding the extent of
the harm suffered. The AJ found the three witnesses who stated that
complainant's condition worsened over time were not as reliable as the
testimony of complainant's husband. The AJ noted that the testimony of
complainant's husband and Person C revealed that complainant was upset
each time she was not selected on a �temporary basis.� We find that on
appeal complainant failed to present evidence that she suffered extended
harm as a result of the agency's discriminatory actions.
Several Commission decisions have awarded compensatory damages in
cases similar to complainant's case: Mathes v. United States Postal
Service, EEOC Appeal No. 01A00093 (May 10, 2001) ($1,500.00 awarded
where complainant non-selected causing him to feel anger, frustration
and depression); Deering-Benford v. United States Postal Service,
EEOC Appeal No. 01994500 (October 31, 2000) ($3,000.00 awarded where
complainant not hired causing her to feel anguish over not having a job);
Ko v. Department of Homeland Security, EEOC Appeal No. 07A20134 (December
1, 2003) ( $5,000.00 awarded where complainant non-selected causing him
disappointment and discouragement). All of those compensatory damage
cases cited supra, however, involve a single non-selection, while the
instant matter involves multiple non-selections. Thus, in the present
case we find $12,000.00 is adequate to compensate complainant for the
harm shown to be causally related to the discriminatory conduct.
The Commission shall Order the agency to pay complainant the $12,000 in
compensatory damages and, with one exception, all other relief ordered by
the AJ if it has not already done so. The Commission shall not require
the agency to comply with the posting notice, because there is sufficient
evidence in the record showing that it has complied with this requirement.
Furthermore, the Commission finds it appropriate to add the requirement
that the agency consider disciplining the responsible agency officials
and provide EEO training to such persons.
Accordingly, the agency's decision awarding $12,000.00 in compensatory
damages was proper and is AFFIRMED.
ORDER
To the extent it has not already done so, the agency shall take the
following actions:
Within thirty days of the date this decision becomes final, the agency
shall compensate complainant for all back pay to which she is entitled
from February 2, 2000, and all necessary adjustments to her retirement
and other benefits which she would have enjoyed had she been selected as
204B in February 2000, had she been allowed to serve as the Officer-in
Charge position in April 2000, and had been selected as Supervisor,
Customer Services in March 2001.
The agency shall promote complainant to the position of Supervisor,
Customer Services, and until such time as this promotion is effectuated
the agency shall compensate complainant at the level of pay and benefits
she would be receiving had she been selected as Supervisor, Customer
Services in March 2001.
The agency shall compensate complainant for reasonable attorney's fees
and expenses in accordance with the AJ's May 27, 2004 decision.
The agency shall pay complainant $12,000.00 in compensatory damages.
The agency shall post at its Jackson, Tennessee facility a copy of the
attached NOTICE TO EMPLOYEES POSTED BY ORDER OF THE EQUAL EMPLOYMENT
OPPORTUNITY COMMISSION in accordance with the provision herein entitled
POSTING ORDER.
The agency shall consider taking disciplinary action against the
responsible management officials involved in this case.
The agency shall, within 180 days of the date this decision becomes
final, provide training to the responsible management officials involved
in this case so that they are fully cognizant of their obligations
and duties as supervisors and managers with respect to eliminating
discrimination in the federal workplace and under the equal employment
opportunity laws.<2>
Documentation of compliance with this Order must be sent to the Compliance
Officer as referenced herein.
POSTING ORDER (G0900)
The agency is ordered to post at its Jackson, Tennessee 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.
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
July 12, 2005
__________________
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 agency's
Jackson, Tennessee facility (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 bases of race,
age, sex and reprisal for prior protected activity. The agency has been
ordered to remedy the discrimination by: compensating complainant for
all back pay to which she is entitled, promote complainant, compensate
complainant for attorney's fees and expenses, provide complainant with
compensatory damages, consider taking appropriate disciplinary action
against all officials involved in the case, and providing training
to all officials involved in the case. 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 16141We note that in her brief on appeal, complainant
requested enforcement of the agency's decision on damages. As the
decision on damages is being addressed in the current appeal we will
not consider complainant's request for enforcement at this time.
Complainant is reminded that if the agency does not comply with the
Commission's order in the present decision, she may file a petition for
enforcement with the Commission as described herein.
2We recognize that the AJ did not order the agency to consider discipline
or provide training for the responsible management officials but the
Commission found it appropriate to add such relief in the present case.