Sonya Thompson, Complainant,v.William J. Henderson, Postmaster General, United States Postal Service, (Pacific Region), Agency.

Equal Employment Opportunity CommissionSep 5, 2000
07a00040 (E.E.O.C. Sep. 5, 2000)

07a00040

09-05-2000

Sonya Thompson, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, (Pacific Region), Agency.


Sonya Thompson v. USPS - Pacific

07A00040

September 5, 2000

.

Sonya Thompson,

Complainant,

v.

William J. Henderson,

Postmaster General,

United States Postal Service,

(Pacific Region),

Agency.

Appeal No. 07A00040

Agency No. 4F-920-0199-97

Hearing No. 340-98-3306X

DECISION

The agency timely initiated an appeal to the Equal Employment Opportunity

Commission (EEOC or Commission) from an EEOC Administrative Judge's

decision concerning the award of compensatory damages.<1> The appeal is

accepted pursuant to 64 Fed. Reg. 37,644, 37,659 (1999) (to be codified

at 29 C.F.R. � 1614.405).

BACKGROUND

During the relevant period, complainant was employed as a Casual Mail

Carrier with the agency's Margaret L. Sellers Processing and Distribution

Center in San Diego, California. Complainant filed a formal complaint

of discrimination on September 16, 1997, stating that because of her race

(African-American) and sex (female) her supervisor instructed her to clock

in using inaccurate operational codes, told other employees to not assist

her in her work, and terminated her Casual appointment in June 1997.

After the agency completed the investigation of the complaint, complainant

requested a hearing before an EEOC Administrative Judge (AJ) who issued

a decision finding that complainant's supervisor discriminated against

complainant on the bases of race and sex by treating her less favorably

than her similarly situated co-workers (male, non-African-American).

To remedy the established discrimination, the AJ ordered the agency

to: (1) offer complainant a Transitional Employee position; (2) pay

back pay and related benefits; (3) post a notice at the facility; (4)

pay reasonable attorney's fees and costs; and (5) award complainant

$35,000.00 in non-pecuniary compensatory damages. In its final agency

action, the agency decided to accept the AJ's findings of discrimination

and implement orders (1) through (4).<2> However, the agency appealed

the AJ's compensatory damages determination, stating that the amount

was not consistent with prior Commission precedent and contending that

$3,000.00 was the appropriate amount of non-pecuniary damages.

ANALYSIS

Section 102(a) of the 1991 Civil Rights Act authorizes an award

of compensatory damages for post-Act pecuniary losses, and for

non-pecuniary losses, such as, but not limited to, emotional pain,

suffering, inconvenience, mental anguish, loss of enjoyment of life,

injury to character and reputation, and loss of health. In this

regard, the Commission has authority to award such damages in the

administrative process. See West v. Gibson, 527 U.S. 212 (1999).

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,

i.e., 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), req. for reconsid. 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) (�Guidance�). In this case, complainant has offered no evidence

of pecuniary damages.

Non-pecuniary damages constitute the sums necessary to compensate

the injured party for actual harm, even where the harm is intangible.

Carter v. Duncan-Higgins, Ltd., 727 F.2d 1225 (D.C. Cir. 1984). In cases

against agencies with more than 500 employees, non-pecuniary damages

are limited to $300,000.00. We note that nonpecuniary losses for

emotional harm are more difficult to prove than pecuniary losses. See

Guidance at 5. Emotional harm will not be presumed simply because the

complainant is a victim of discrimination. Id. The existence, nature, and

severity of emotional harm must be proved. Id. The method for computing

nonpecuniary damages should typically be based on a consideration of the

severity and duration of harm. Carpenter v. Department of Agriculture,

EEOC Appeal No. 01945652 (July 17, 1995). In determining the severity

of the harm, consideration should be given to all resulting damage of

the discrimination, for example, whether the harm was accompanied by

occasional sleeplessness, or a nervous breakdown resulting in years

of psychotherapy. Guidance at 8. The duration of the emotional harm is

also relevant, meaning that a complainant who has suffered from severe

depression for two months may be awarded less money than a complainant

who has suffered from severe depression for a year. Id. at 8. We note

that for a proper award of non-pecuniary damages, the amount of the

award should not be "monstrously excessive" standing alone, should not

be the product of passion or prejudice, and should be consistent with

the amount awarded in similar cases. See Ward-Jenkins v. Department of

the Interior, EEOC Appeal No. 01961483 (March 4, 1999) (citing Cygnar

v. City of Chicago, 865 F.2d 827, 848 (7th Cir. 1989)).

Applying the above legal standards, we find that complainant has

established that she suffered emotional and physical harm as a result of

the discrimination. The record contains complainant's hearing testimony

stating that due to the discrimination, she suffered anxiety, frustration,

nervousness, weight loss, and loss of appetite. The record also suggests

that complainant's suffering began in early 1997, when the discrimination

began and continued until June 1998, when the agency decided not to renew

her casual employment appointment.<3> We find that the uncontroverted

evidence in the form of her personal testimony establishes complainant's

entitlement to non-pecuniary damages.

While there is no dispute that complainant is entitled to an award,

the agency contends that the AJ's award of $35,000.00 is inconsistent

with prior Commission precedent involving cases with similar harm.

The agency offers that $3,000.00 properly compensates complainant for

any harm caused by the discrimination. We note that the Commission has

awarded compensatory damages in cases somewhat similar to complainant's

case in terms of the harm sustained. See, e.g., Baptieste v. Department

of the Air Force, EEOC Appeal No. 01974616 (May 26, 2000) ($12,000.00 in

non-pecuniary damages based on complainant's and others' statements of

emotional distress due to agency's discriminatory termination); Jones

v. Department of Defense, EEOC Appeal No. 01973551 (April 14, 2000)

($9,000.00 in non-pecuniary damages based on complainant's statements of

the interference with family and marital relations, digestive problems,

headaches, anxiety, sleeplessness, and exhaustion resulting from the

agency's discrimination); Butler v. Department of Agriculture, EEOC

Appeal No. 01971729 (April 15, 1999) ($7,500.00 in non-pecuniary damages

based on complainant's testimony regarding his emotional distress); Hull

v Department of Veteran Affairs, Appeal No. 01951441 (Sept. 18, 1998)

($12,000.00 in non-pecuniary damages based on complainant's testimony of

emotional distress due to retaliatory harassment); and Miller v. United

States Postal Service, EEOC Appeal No. 01956109 (January 23, 1998),

($7,500.00 in non-pecuniary damages where the complainant produced scant

evidence to support his claim).

After analyzing the evidence which establishes the physical and emotional

harm sustained by complainant and upon consideration of damage awards

reached in comparable cases, the Commission disagrees with the AJ

and finds that complainant is entitled to an award of non-pecuniary

damages in the amount of $10,000.00. Generally, the Commission awards

large nonpecuniary awards in cases where a complainant establishes and

well documents the nature, duration and severity of the emotional harm.

See Cleland v. Department of Veterans Affairs, EEOC Appeal No. 01970546

(August 9, 2000) ($125,000.00 in non-pecuniary damages where medical

evidence established severe emotional harm as a result of the agency's

discrimination); McCann v. Department of the Air Force, Appeal

No. 01971851 (October 23, 1998) ($75,000.00 in non-pecuniary damages

for a discriminatory discharge where complainant presented evidence

of feelings of psychological numbness, anger, insomnia, depression,

flashbacks, nightmares, fear, fatigue, diminished pleasure in activities,

some social withdrawal, less confidence on the job and a constant fear of

unjustified job loss); Johnson v. Department of the Interior, EEOC Appeal

No. 01961812 (June 18, 1998) ($37,500.00 in non-pecuniary damages where

medical evidence established depression and related symptoms as a result

of the agency's discrimination). We do not find this case analogous

to these cases with respect to the nature, severity and duration of

the harm suffered. Complainant has not presented sufficient objective

evidence to justify the $35,000.00 awarded by the AJ.

CONCLUSION

Accordingly, based on a thorough review of the record, we agree with the

AJ and find that the agency discriminated against complainant when it

treated her differently than her co-workers because of her race and sex.

However, as discussed above, we MODIFY the AJ's non-pecuniary compensatory

damages award and ORDER the agency to comply with the Order below.

ORDER (C1092)

To the extent it has not already done so, the agency is ORDERED to take

the following remedial action:

Within thirty (30) days of the date on which this decision becomes final,

tender to complainant $10,000.00 in non-pecuniary compensatory damages.

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

agency shall offer complainant placement in a Transitional Employee

position in the San Diego, California area. Complainant shall be offered

at least a 20-day period in which to determine whether to accept the

position, and if necessary, this time period should be extended for a

reasonable period of time based on complainant's needs.

The agency shall determine the appropriate amount of back pay (with

interest, if applicable) and other benefits due complainant, pursuant

to 29 C.F.R. � 1614.501, no later than sixty (60) calendar days after

the date this decision becomes final. The complainant shall cooperate

in the agency's efforts to compute the amount of back pay and benefits

due, and shall provide all relevant information requested by the agency.

If there is a dispute regarding the exact amount of back pay and/or

benefits, the agency shall issue a check to the complainant for the

undisputed amount within sixty (60) calendar days of the date the

agency determines the amount it believes to be due. The complainant

may petition for enforcement or clarification of the amount in dispute.

The petition for clarification or enforcement must be filed with the

Compliance Officer, at the address referenced in the statement entitled

"Implementation of the Commission's Decision."

Within a reasonable period of time, the agency is directed to conduct EEO

training (with emphasis on race and sex discrimination) for the management

staff at the Margaret L. Sellers Processing and Distribution Center.

The agency shall address management's responsibilities with respect to

eliminating discrimination in the workplace and all other supervisory

and managerial responsibilities under the federal equal employment

opportunity laws enforced by the Commission.

The agency shall post at the appropriate site in the Margaret L. Sellers

Processing and Distribution Center 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.

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 must include evidence that the corrective action

has been implemented.

ATTORNEY'S FEES (H1199)

If complainant has been represented by an attorney (as defined by 64

Fed. Reg. 37,644, 37,659-60 (1999) (to be codified and hereinafter

referred to as 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 (K1199)

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 64

Fed. Reg. 37,644, 37,659-60 (1999) (to be codified and hereinafter

referred to as 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)(Supp. V 1993). If the complainant files a civil action, the

administrative processing of the complaint, including any petition for

enforcement, will be terminated. See 64 Fed. Reg. 37,644, 37,659 (1999)

(to be codified and hereinafter referred to as 29 C.F.R. � 1614.409).

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M0300)

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 64

Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter referred

to as 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 64 Fed. Reg. 37,644, 37,661 (1999) (to be codified and hereinafter

referred to as 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).

INTERIM RELIEF (F1199)

When the agency requests reconsideration and the case involves a

finding of discrimination regarding a removal, separation, or suspension

continuing beyond the date of the request for reconsideration, and when

the decision orders retroactive restoration, the agency shall comply with

the decision to the extent of the temporary or conditional restoration

of the complainant to duty status in the position specified by the

Commission, pending the outcome of the agency request for reconsideration.

See 64 Fed. Reg. 37,644, 37,660 (1999) (to be codified and hereinafter

referred to as 29 C.F.R. � 1614.502(b)).

The agency shall notify the Commission and the complainant in writing at

the same time it requests reconsideration that the relief it provides

is temporary or conditional and, if applicable, that it will delay

the payment of any amounts owed but will pay interest from the date

of the original appellate decision until payment is made. Failure of

the agency to provide notification will result in the dismissal of the

agency's request. See 29 C.F.R. � 1614.502(b)(3).

COMPLAINANTS' RIGHT TO FILE A CIVIL ACTION (S0400)

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

September 5, 2000

1 On November 9, 1999, revised regulations governing the EEOC's federal

sector complaint process went into effect. These regulations apply to all

federal sector EEO complaints pending at any stage in the administrative

process. Consequently, the Commission will apply the revised regulations

found at 64 Fed. Reg. 37,644 (1999), where applicable, in deciding the

present appeal. The regulations, as amended, may also be found at the

Commission's website at www.eeoc.gov.

2 We note that under our regulations at 64 Fed. Reg. 37,644, 37,660-61

(1999) (to be codified at 29 C.F.R. � 1614.505), even if the agency

appealed the AJ's order to place the complainant into the position,

the agency must temporarily or conditionally place the complainant into

the position pending the outcome of the agency's appeal.

3 The evidence indicates that as result of her supervisor's discriminatory

performance evaluation, complainant believed that her chances of securing

a more permanent position with the agency were greatly diminished even

after she was reassigned to a different postal facility under different

supervision.