Sandra P. Jenkins, Complainant,v.John E. Potter, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionJun 8, 2009
0120091289 (E.E.O.C. Jun. 8, 2009)

0120091289

06-08-2009

Sandra P. Jenkins, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.


Sandra P. Jenkins,

Complainant,

v.

John E. Potter,

Postmaster General,

United States Postal Service,

Agency.

Appeal No. 0120091289

Agency No. 6J000000306

DECISION

On December 5, 2008, complainant filed an appeal from the agency's

November 3, 2008 final decision concerning her equal employment

opportunity (EEO) complaint alleging employment discrimination in

violation of Title VII of the Civil Rights Act of 1964 (Title VII),

as amended, 42 U.S.C. � 2000e et seq. and the Age Discrimination in

Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq.

The appeal is deemed timely and is accepted pursuant to 29 C.F.R. �

1614.405(a). For the following reasons, the Commission modifies the

agency's final decision.

ISSUES PRESENTED

The issue presented is whether complainant established that she was

entitled to compensatory damages.

BACKGROUND

At the time the events at issue arose, complainant worked as a Government

Relations Analyst at the agency's Headquarters in Washington, D.C.

On March 9, 2006, complainant filed an EEO complaint (Agency Complaint

No. 6J-000-0003-06) alleging she was discriminated against on the bases of

race (African American), sex (female) color (brown), age (54) and reprisal

for prior EEO activity when, in January 2006, she received a performance

rating which was lower than what she thought her work warranted.

The instant appeal arises out of a previous Commission decision regarding

complainant's appeal of the agency's decision finding no discrimination

in Agency Complaint No. 6J-000-0003-06. See Jenkins v. United States

Postal Service, EEOC Appeal No. 0120064579 (July 8, 2008). In EEOC

Appeal No. 0120064579, the Commission acknowledged the testimony of the

responsible management official that complainant had received the highest

rating available on her 2006 performance appraisal given the functional

score of the agency's Government Relations Department where complainant

worked. The agency's official also indicated that complainant was rated

higher than two female co-workers and equal to two other co-workers.

However, the Commission sanctioned the agency because the responsible

management official refused to provide requested documentary evidence in

support of his testimony concerning the ratings of the department where

complainant worked as well as the ratings of complainant's co-workers,

citing privacy concerns. Consequently, the Commission reversed the

agency's finding of no discrimination and drew an adverse inference

against the agency and found that the requested information would not

have supported the agency's position.

Thereafter, the Commission remanded the case to the agency with directions

to conduct a supplemental investigation into complainant's entitlement

to compensatory damages. The instant appeal is from the agency's final

decision that complainant was not entitled to any compensatory damages,

or in the alternative, that complainant is entitled to $50.00 in pecuniary

damages for a co-pay for a single doctor's visit and postage expenses

incurred by complainant. Complainant offers no additional argument in

support of her appeal.

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 EEOC Management

Directive 110, Chapter 9, � VI.A. (November 9, 1999) (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").

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 Transportation Co.,

424 U.S. 747, 764 (1976); Albemarle Paper Co. v. Moody, 422 U.S. 405,

418-19 (1975); Adesanya v. United States Postal Service, EEOC Appeal

No. 01933395 (July 21, 1994). 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, 119 S.Ct. 1906 (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, a complainant must

demonstrate that he or 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. 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. 915.002 (July 14, 1992),

at 11-12, 14.

Compensatory damages may be awarded for the past pecuniary losses,

future pecuniary losses, and non-pecuniary losses which are directly or

proximately caused by the agency's discriminatory conduct. EEOC Notice

No. 915.002 at 8. Objective evidence of compensatory damages can include

statements from the complainant concerning his or her 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 nonpecuniary

losses that are incurred as a result of the discriminatory conduct.

Statements from others, including family members, friends, health

care providers, 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. See Lawrence v. United States Postal Service,

EEOC Appeal No. 01952288 (April 18, 1996), citing Carle v. Department

of the Navy, EEOC Appeal No. 01922369 (January 5, 1993).

Pecuniary Compensatory Damages

The record indicates that in her submission to the agency for compensatory

damages, complainant requested reimbursement for $609.00 for doctor visits

between January and November 2006. In its final decision, the agency

found that complainant was not entitled to any award of compensatory

damages. In the alternative, however, the agency concluded that if

complainant was entitled to compensation for out-of-pocket expenses for

doctor's visits from January to November 2006, she would properly be

entitled to receive the $10.00 co-pay for each visit, not reimbursement

for the entire charge, much of which was covered by insurance. After a

review of the record in this matter, we are persuaded that the agency

is correct in its reasoning that complainant would only be entitled to

reimbursement for her out-of-pocket expenses consisting of the $10 co-pay

for each doctor's visit for a condition linked to complainant's January

performance rating. Evidence of record, including medical records from

complainant's physician, establishes that the only visit where such a link

has been established was one on January 26, 2006, where complainant sought

medical attention for "anxiety, job stress and hair loss." Upon review,

we find therefore that complainant has demonstrated her entitlement to

$10.00 as reimbursement for the January 26, 2006 doctor visit co-pay.

Complainant also requested reimbursement for $309.48 in medications.

The record, however, supports the agency's conclusion that there is

insufficient evidence of record to support a link between the specific

medications at issue1 and the discriminatory performance rating.

In addition, the record indicates that complainant is claiming an

additional $40.00 in pecuniary damages for postage costs she incurred

in processing the instant complaint. The Commission finds that based

on the evidence of record, complainant has established her entitlement

to reimbursement for those costs. Complainant also claimed $485.00

and $380.00 in attorney's fees to two separate attorneys. However, the

record establishes that complainant represented herself in this matter,

and there is inadequate evidence that the services of these attorneys

contributed to achieving the result in this case. Moreover, complainant

did not even provide a bill or receipt for the claimed $380.00.

Non-Pecuniary Compensatory Damages

When appropriate, the Commission has awarded non-pecuniary damages

for emotional distress or mental anguish. However, after carefully

considering the facts of this case, the Commission finds that the agency

arrived at a fair determination that complainant is not entitled to

non-pecuniary compensatory damages as a result of the particular facts

of the instant matter. In reaching this conclusion, the Commission

considered a number of factors including, the nature and severity of

the discrimination, and the nature and severity of complainant's mental

anguish and related symptoms attributable to discrimination. We find

that complainant failed to establish the required nexus between the

agency's discriminatory conduct and her claimed emotional harm (i.e.,

low self-esteem, sadness, feeling depressed and taking out frustrations

on family).

A claim of emotional harm will be seriously undermined if the onset of

symptoms of emotional harm preceded the discrimination. See EEOC Notice

No. 915.002 at 5. The agency can only be held responsible for the harm

it caused as a direct result of agency actions. Here, the evidence

of record indicates that the bulk of the emotional harm claimed by

complainant occurred prior to the alleged discriminatory event in January

2006 and related to her disappointment in not receiving a promotion

before the January rating, as well as other workplace dissatisfactions

that may have involved the same supervisor as the one involved with

the performance rating, but occurred prior to the rating or were not

related to the rating. We note that some of the emotional harm alleged

by complainant was linked to her failure to be selected to another job

after January 2006, but there is insufficient evidence to suggest that

her non-selections were the result of her performance rating.

CONCLUSION

Accordingly, the agency's decision is modified to provide an award of

a total of $50.00 in pecuniary compensatory damages for reimbursement

of a doctor's visit and for costs associated with processing her EEO

complaint. The complaint is remanded to the agency for compliance with

the Order set forth below.

ORDER

Within thirty (30) calendar days, of the date this decision becomes

final, the agency shall, to the extent it has not already done so, pay

complainant the amount of $50.00 in 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.

A copy of the agency's letter of acknowledgment to complainant and a

copy of the notice that transmits the investigative file and notice of

rights must be sent to the Compliance Officer as referenced below.

IMPLEMENTATION OF THE COMMISSION'S DECISION (K0408)

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 (M1208)

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 77960,

Washington, DC 20013. 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 (R0408)

This is a decision requiring the agency to continue its administrative

processing of your complaint. However, if you wish to file a civil

action, you have the right to file such action in an appropriate United

States District Court within ninety (90) calendar days from the date

that you receive this decision. 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 filed your appeal with the

Commission. 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. Filing a civil

action will terminate the administrative processing of your complaint.

RIGHT TO REQUEST COUNSEL (Z1008)

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 from the Court that

the Court appoint an attorney to represent you and that the Court also

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 with

the Court does not extend your time in which to file a civil action.

Both the request and the civil action must be filed within the time

limits as stated in the paragraph above ("Right to File A Civil Action").

FOR THE COMMISSION:

______________________________

Carlton M. Hadden, Director

Office of Federal Operations

June 8, 2009

______________________________

Date

1 For example, complainant twice filled a prescription for Lipitor to

treat her high cholesterol, clearly a condition not linked to her 2006

performance appraisal.

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0120091289

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Office of Federal Operations

P.O. Box 77960

Washington, DC 20013