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.