[Redacted], Felton A., 1 Complainant,v.Louis DeJoy, Postmaster General, United States Postal Service (Capital Metro Area), Agency.

Equal Employment Opportunity Commission

May 24, 2021

Appeal No. 2020002955 (E.E.O.C. May. 24, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Felton A.,1 Complainant, v. Louis DeJoy, Postmaster General, United States Postal Service (Capital Metro Area), Agency. Appeal No. 2020002955 Agency No. 4K-230-0069-17 DECISION On March 3, 2020, Complainant filed an appeal with the Equal Employment Opportunity Commission (EEOC or Commission), pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s February 20, 2020, final decision concerning his entitlement to compensatory damages regarding his equal employment opportunity (EEO) complaint alleging employment discrimination in violation of Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq. For the following reasons, the Commission MODIFIES the Agency’s final decision. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a City Letter Carrier at the Agency’s Denbigh Station in Newport News, Virginia. We previously addressed Complainant’s allegations in Felton A. v. United States Postal Service, EEOC Appeal No. 0120182134 (Dec. 17, 2019). Therein, we reversed the Agency’s findings of no discrimination and concluded that Complainant had shown that he was discriminated against on the bases of disability (Post-Traumatic Stress Disorder or PTSD) and reprisal for prior protected EEO activity under Section 501 of the Rehabilitation Act of 1973 when: 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. 2020002955 2 1. on January 19, 2017, Complainant’s supervisor (Supervisor) informed the Union Steward of his medical condition and informed the Union Steward that Complainant was on the “Threat Assessment List.” 2. On January 19, 2017, Complainant was not permitted to enter the facility. As more fully detailed in the previous decision, the Agency was liable for unlawful disclosure of confidential medical information because the Supervisor’s statements were not reliable. We further found that the release of Complainant’s medical information did not fall within any exceptions to the confidentiality requirement. We also found that Complainant was subjected to retaliation when he was not allowed to enter the work facility because the Agency’s asserted legitimate, non-discriminatory reason - that Complainant was on a Threat Assessment List was not supported by the record; the Agency was unable to confirm that a Threat Assessment List existed. We returned the matter to the Agency for a supplemental investigation on the issue of Complainant’s entitlement to damages, and other relief. The Agency gave Complainant an opportunity to provide evidence to support his claim for compensatory damages. Complainant asserts he suffered from stress and mental anguish, anxiety, depression, PTSD, paranoia, embarrassment, anger, feelings of betrayal, injury to professional standing, injury to his character, marital strain, loss of enjoyment of life, loss of sleep/insomnia, an eye twitch, headaches and migraines, and loss of socializing. Complainant sought $150,000 in compensatory damages and asserts that the Agency’s actions exacerbated his pre-existing PTSD. In his affidavit, Complainant detailed his activities as a pastor and asserts that being told he was placed on the Threat Assessment List caused him to be concerned for his reputation in the community. All told, the Agency’s actions allegedly caused Complainant to re-aggravate his PTSD symptoms. Complainant asserted that the Agency’s actions caused him to submit paperwork for disability retirement and to resign his position as pastor. Complainant provided a letter dated January 2, 2020, from Complainant’s psychiatrist. The psychiatrist explained that he has been a patient since 2013. The psychiatrist avers that Complainant’s PTSD symptoms were “aggravated, exacerbated and prolonged due to his supervisor sharing his sensitive medical information with coworkers in January 2017.” Complainant provided a copy of his invoices from the psychiatrist, which indicated that Complainant had no fewer than sixty therapy sessions between January 23, 2017 and July 1, 2019 with the psychiatrist or with other doctors in that office. Complainant’s wife provided an affidavit for the record. She observed that Complainant’s physical condition visibly worsened and Complainant was anxious, stressed, and could not calm down. Complainant’s lifelong friend also testified that, though he does not see Complainant very often, he regularly talked with Complainant on the telephone, and in 2017, he observed that Complainant seemed to distance himself. 2020002955 3 On February 20, 2020, the Agency issued a final decision regarding Complainant’s entitlement to damages. The Agency rejected Complainant’s assertion that he filed his disability retirement paperwork as a result of his supervisor’s actions because the filing took place prior to the claims at issue. The Agency also did not see how the Supervisor’s actions caused Complainant to resign as pastor. Further, the Agency was not greatly persuaded by the psychiatrist’s letter because it did not “differentiate or compare [Complainant’s] pre-existing condition with [his] condition after the January 19, 2017, incidents” and pointed out that the psychiatrist did not start treating Complainant until July 2017. The Agency then reviewed prior Commission decisions awarding compensatory damages and concluded that $2,000 would be an appropriate compensatory damages award. The Agency also awarded Complainant $18.22 in pecuniary damages. CONTENTIONS ON APPEAL On appeal, Complainant argues the Agency’s final decision awarding $2,000 in compensatory damages is insufficient. Complainant disagrees with the Agency that the statement he was on a threat assessment list was not compensable. Rather, the statement was indivisible from the Agency’s disclosure of his confidential medical information. Complainant then cites several Commission decisions that awarded $150,000 in compensatory damages. Complainant does not challenge the award of pecuniary compensatory damages. ANALYSIS AND FINDINGS As this is an appeal from a decision issued without a hearing, pursuant to 29 C.F.R. § 1614.110(b), the Agency's decision is subject to de novo review by the Commission. 29 C.F.R. § 1614.405(a). See Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614, at Chapter 9, § VI.A. (Aug. 5, 2015) (explaining that the de novo standard of review “requires that the Commission examine the record without regard to the factual and legal determinations of the previous decision maker,” and that EEOC “review the documents, statements, and testimony of record, including any timely and relevant submissions of the parties, and . . . issue its decision based on the Commission’s own assessment of the record and its interpretation of the law”). Compensatory damages do not include back pay, interest on back pay, or any other type of equitable relief authorized by Title VII. To receive an award of compensatory damages, a complainant must demonstrate that he 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. Rivera v. Dep’t of the Navy, EEOC Appeal No. 01934157 (July 22, 1994), request for reconsideration denied, EEOC Request No. 05940927 (December 11, 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). 2020002955 4 In order to support an award of compensatory damages, a complainant is required to provide objective evidence that will allow an agency to assess the merits of his request for damages. See Carle v. Dep’t of the Navy, EEOC Appeal No. 01922369 (January 5, 1993). Compensatory damages traditionally include both a pecuniary damage component as well as non-pecuniary damage component. The process of proving compensatory damages is not simply about identifying an amount of money that the Complainant feels she is entitled to receive, rather, it is about actually demonstrating through the introduction of objective evidence that the amount of damages claimed fairly and reasonably corresponds to the resulting harm suffered. After establishing entitlement to an award of compensatory damages, 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). It should likewise be consistent with amounts awarded in similar cases. See Hogeland v. Dep’t of Agriculture, EEOC Appeal No. 01976440 (June 14, 1999). Moreover, the Commission points out that non-pecuniary compensatory damages are designed to remedy a harm and not to punish the Agency for its discriminatory actions. Furthermore, compensatory damages should not be motivated by passion or prejudice or “monstrously excessive” standing alone but should be consistent with the amounts awarded in similar cases. See Ward Jenkins v. Dep’t of the Interior, EEOC Appeal No. 01961483 (March 4, 1999). The Commission has held that evidence from a health care provider is not a mandatory prerequisite for recovery of compensatory damages. See Carpenter v. Dep’t of Agriculture, EEOC Appeal No. 01945652 (July 17, 1995). Courts also have held that “expert testimony ordinarily is not required to ground money damages for mental anguish or emotional distress.” Sanchez v. Puerto Rico Oil Co., 37 F.3d 712, 724 (1st Cir. 1994), citing Wulf v. City of Wichita, 883 F.2d 842, 875 (10th Cir. 1989). A complainant’s own testimony, along with the circumstances of a particular case, can suffice to sustain his/her burden in this regard. Nonetheless, the absence of supporting evidence may affect the amount of damages deemed appropriate in specific cases. See Lawrence v. U.S. Postal Serv., EEOC Appeal No. 01952288 (April 18, 1996). In one of the cases relied upon by the Agency, the complainant was awarded $2,000 in compensatory damages as the result of a single finding of improper disclosure of confidential medical information. Becki P. v. Dep’t of Transp., EEOC Appeal No. 0720180004 (Nov. 15, 2018). In another, the Commission awarded a complainant $2,000 in compensatory damages when, as a result of improper disclosure of confidential medical information - that the complainant suffered a miscarriage - she fielded questions for three months which required her to relive the miscarriage. Merilyn W. v. U.S. Postal Serv., EEOC Appeal No. 0120140433 (Apr. 6, 2013). And in Gray v. U.S. Postal Serv., EEOC Appeal No. 0120131060 (Apr. 8, 2014), we awarded $2,000 when a supervisor took the complainant’s medical file home and left it there for five years unguarded. In Gray, we noted that the supervisor did not act maliciously and that we have awarded greater awards for improper disclosure of confidential medical information. Id. 2020002955 5 ($2,500 in one case, and $15,000 in another case that involved a finding of discrimination on two claims, one of which was an improper disclosure of medical information). In this case, the Agency focuses on the finding that it improperly disclosed Complainant’s medical information and wholly ignores that our previous decision also found that Complainant was subjected to retaliation when he was prevented from entering the facility.2 Accordingly, the Agency’s reliance on Becki P. and Merilyn W. is of limited value, and Gray’s discussion of greater compensatory damages in the case of additional sustained findings of discrimination provides insight on the proper amount of damages here. Moreover, the Agency discounts testimony from Complainant’s wife and friend, in which they testify that Complainant’s demeanor dramatically changed after the Agency’s actions. Complainant’s wife, in particular, testified to specific physical changes. We also do not agree with the Agency’s decision to discount documentation from Complainant’s psychiatrist. While the signatory to the letter may not have treated Complainant prior to July 2017, she is part of the same practice that continuously treated Complainant since 2013, and therefore, her letter represents the practice’s observation of Complainant. With corroboration from Complainant’s wife and friend, Complainant’s medical documentation has probative value. However, we are not persuaded by Complainant’s citation to cases awarding $150,000 in compensatory damages. In one case, the award resulted from sustained sexual harassment and included extensive medical documentation. Carmina E. v. Dep’t of Justice, EEOC Appeal No. 0720150011 (January 9, 2018). In another, the complainant was subjected to two and a half years of a hostile work environment. Coopwood v. Dep’t of Transp., EEOC Appeal No. 0120083127 (May 2, 2012). And the third case Complainant cites involved a non-selection and sustained harassment. Goodridge v. Soc. Sec. Admin., EEOC Appeal No. 0720050026 (Nov. 15, 2016). Accordingly, we think an increase in compensatory damages is warranted in this matter, but not to the extent Complainant argues. The Commission finds that $5,000.00 is an appropriate amount of non-pecuniary damages as Complainant presented evidence to establish that the Agency's actions caused some exacerbation of his conditions. See Chara S. v. Dep’t of Veterans Affairs, EEOC Appeal No. 2019001100 (July 16, 2020) ($6,000 awarded in non-pecuniary compensatory damages where agency’s discrimination resulted in exacerbation of several conditions including severe emotional distress, anxiety, and panic attacks); Complainant v. U.S. Postal Serv., EEOC Appeal No. 0120132114 (May 29, 2015) ($5,000 in nonpecuniary damages awarded where complainant suffered from insomnia, headaches, mood swings, marital issues, and exacerbation of physical symptoms); Harriet M. v. Dep't of Agric., EEOC Appeal No. 2 The Agency’s note that we did not make a finding on disability misapprehends our decision. We did not reach the question of whether Complainant was discriminated against on the basis of disability because Complainant had made a sufficient showing as to retaliation. EEOC Appeal No. 0120182134 n.2. That is not the same as making an explicit finding that the evidence did not prove disability discrimination. 2020002955 6 0120150114 (Dec. 27, 2017) ($5,000 awarded where agency's failure to accommodate exacerbated complainant's preexisting conditions of depression, sleeplessness, and suicidal thoughts). After examining the evidence in this matter, and reviewing Commission precedent, we believe an award of $5,000 is reasonable and not monstrously excessive, and fairly compensates Complainant for the harm he suffered as a result of the Agency’s actions. CONCLUSION Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we MODIFY the Agency’s final decision. ORDER Within thirty (30) days of the date this decision is issued, to the extent that it has not already done so already, the Agency shall pay Complainant the amount of $5,018.22 representing $18.22 in pecuniary compensatory damages and $5,000 in non-pecuniary compensatory damages. 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. ATTORNEY'S FEES (H0610) 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 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 (K0719) 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). 2020002955 7 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. Failure by an agency to either file a compliance report or implement any of the orders set forth in this decision, without good cause shown, may result in the referral of this matter to the Office of Special Counsel pursuant to 29 C.F.R. § 1614.503(f) for enforcement by that agency. STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0920) The Commission may, in its discretion, reconsider this appellate decision if Complainant or the Agency submits a written request that contains arguments or evidence that 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 for reconsideration must be filed with EEOC’s Office of Federal Operations (OFO) within thirty (30) calendar days of receipt of this decision. If the party requesting reconsideration elects to file a statement or brief in support of the request, that statement or brief must be filed together with the request for reconsideration. A party shall have twenty (20) calendar days from receipt of another party’s request for reconsideration within 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). Complainant should submit his or her request for reconsideration, and any statement or brief in support of his or her request, via the EEOC Public Portal, which can be found at https://publicportal.eeoc.gov/Portal/Login.aspx. Alternatively, Complainant can submit his or her request and arguments to the Director, Office of Federal Operations, Equal Employment Opportunity Commission, via regular mail addressed to P.O. Box 77960, Washington, DC 20013, or by certified mail addressed to 131 M Street, NE, Washington, DC 20507. In the absence of a legible postmark, a complainant’s request to reconsider shall be deemed timely filed if OFO receives it by mail within five days of the expiration of the applicable filing period. See 29 C.F.R. § 1614.604. 2020002955 8 An agency’s request for reconsideration must be submitted in digital format via the EEOC’s Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). Either party’s request and/or statement or brief in opposition must also include proof of service on the other party, unless Complainant files his or her request via the EEOC Public Portal, in which case no proof of service is required. Failure to file within the 30-day time period will result in dismissal of the party’s request for reconsideration as untimely, unless extenuating circumstances prevented the timely filing of the request. Any supporting documentation must be submitted together with the 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. 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. 2020002955 9 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 May 24, 2021 Date