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