01a44246
08-02-2005
Denise Clay, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, (Eastern Area) Agency.
Denise Clay v. United States Postal Service
01A44246
August 2, 2005
.
Denise Clay,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
(Eastern Area)
Agency.
Appeal No. 01A44246
Agency No. 4C-430-0020-02
Hearing No. 220-A3-5119X
DECISION
Complainant timely initiated an appeal from the agency's final action.
On March 12, 2004, an EEOC Administrative Judge (AJ) issued a decision
finding that the agency retaliated against complainant, in violation of
Title VII of the Civil Rights Act of 1964 (Title VII), as amended, 42
U.S.C. � 2000e et seq., when it removed her from her position, effective
March 15, 2003. The AJ ordered the agency to (1) pay complainant $3,500
in non-pecuniary damages; (2) reinstate complainant to the position
of full-time Rural Carrier; (3) award complainant back pay; (4) take
corrective, curative and preventive action to ensure that retaliation
does not recur; and (5) post a notice of retaliation at its Westerville
Post Office. The agency fully implemented the decision of the AJ.
Complainant appeals the award of non-pecuniary damages.
ISSUE
The issue on appeal is whether complainant is entitled to an award of
non-pecuniary damages beyond the $3,500 awarded by the agency.
ANALYSIS AND FINDINGS
Pursuant to section 102(a) of the Civil Rights Act of 1991, a
complainant who establishes his or her claim of unlawful discrimination
may receive, in addition to equitable remedies, 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). 42
U.S. C. � 1981a(b)(3). 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. Id.
The particulars of what relief may be awarded, and what proof is necessary
to obtain that relief, are set forth in detail in EEOC Notice No. N
915.002, Compensatory and Punitive Damages Available Under Section 102
of the Civil Rights Act of 1991 (July 14, 1992). Briefly stated, the
complainant must submit evidence to show that the agency's discriminatory
conduct directly or proximately caused the losses for which damages
are sought. Id. at 11-12, 14; Rivera v. Department of the Navy, EEOC
Appeal No. 01934157 (July 22, 1994). The amount awarded should reflect
the extent to which the agency's discriminatory action directly or
proximately caused harm to the complainant and the extent to which other
factors may have played a part. EEOC Notice No. N 915.002 at 11-12.
The amount of non-pecuniary damages should also reflect the nature and
severity of the harm to the complainant, and the duration or expected
duration of the harm. Id. at 14.
In Carle v. Department of the Navy, the Commission explained that
"objective evidence" of non-pecuniary damages could include a
statement by the complainant explaining how he or she was affected
by the discrimination. EEOC Appeal No. 01922369 (January 5, 1993).
Statements from others, including family members, friends, and health
care providers could address the outward manifestations of the impact of
the discrimination on the complainant. Id. The complainant could also
submit documentation of medical or psychiatric treatment related to
the effects of the discrimination. Id. Non-pecuniary damages must be
limited to the sums necessary to compensate the injured party for the
actual harm and should take into account the severity of the harm and
the length of the time the injured party has suffered from the harm.
Carpenter v. Department of Agriculture, EEOC Appeal No. 01945652
(July 17, 1995). The Commission applies the principle that "a
tortfeasor takes its victims as it finds them." Wallis v. United
States Postal Service, EEOC Appeal No. 01950510 (November 13, 1995)
(quoting Williamson v. Handy Button Machine Co., 817 F.2d 1290, 1295
(7th Cir. 1987)). The Commission also applies two exceptions to this
general rule. First, when a complainant has a pre-existing condition, the
agency is liable only for the additional harm or aggravation caused by
the discrimination. Second, if the complainant's pre-existing condition
inevitably would have worsened, the agency is entitled to a reduction
in damages reflecting the extent to which the condition would have
worsened even absent the discrimination; the burden of proof being on the
agency to establish the extent of this entitlement. Wallis, EEOC Appeal
No. 01950510 (citing Maurer v. United States, 668 F.2d 98 (2d Cir. 1981));
Finlay v. United States Postal Service, EEOC Appeal No. 01942985 (April
29, 1997). The Commission notes, however, that complainant is entitled
to recover damages only for injury, or additional injury, caused by the
discrimination. Terrell v. Department of Housing and Urban Development,
EEOC Appeal No. 01961030 (October 25, 1996); EEOC Notice No. N 915.002
at 12.
The Commission notes 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 Cygnar v. City
of Chicago, 865 F.2d 827, 848 (7th Cir. 1989).
The undisputed evidence shows that complainant suffers with depression and
has been on anti-depressant medication since 2000. The record also shows
that in July 2002, complainant was dealing with spousal abuse, separation
from her husband and eviction from her home for non-payment of rent.
In August 2002, the dosage of her anti-depressant medication doubled.
With respect to the distress caused by the retaliatory termination, the
undisputed evidence shows that because she was terminated, complainant
was unable to meet an "agreement" with the State of Ohio which resulted
in her incarceration for 20 days. Complainant testified that the
incarceration was devastating. She stated "there are no words to describe
how badly that hurt. Being in jail, seeing your kids through a glass,
begging your daughter for money to bail you out. My three-year-old
grandchild, can't even touch her through a glass. My two children,
7 and 8, seeing me in jail." Complainant further testified, "my love
has always been carrying mail, and its very important to me. I waited
for this job for almost eleven to twelve years to be full time. . . . I
cannot award my daughter . . . with presents that normal parents give
their . . . children. . . . All I wanted was a full time job with the
[agency], full time benefits, so that I could be a decent parent to give
what any parent wants to give their child. I can't even do that."
In Benson v. Department of Agriculture, EEOC Appeal No. 01952854 (June
27, 1996), the Commission affirmed the agency's award of $5,000.00
in non-pecuniary damages where the complainant, his relatives,
and his colleagues offered testimony regarding the embarrassment and
humiliation that the employee suffered at work as a result of the denial
of promotional opportunities, a suspension, and other adverse actions.
In Palmer v. Department of the Navy, EEOC Appeal No. 01956059 (September
2, 1998), the Commission found the AJ's award of $5,000 to be reasonable
based on the employee's testimony that she had been subjected to a hostile
work environment and suffered moderately severe psychological stress
as a result. In addition to her own testimony, the employee submitted
reports from a psychologist. Finally, in Androvich v. Department of
Agriculture, EEOC Appeal No. 01950531 (July 12, 1996), the Commission
awarded $5,000 to the aggrieved employee on the basis of testimony from
herself, her sister, and her ex-spouse, as well as statements from
four clinical psychologists, that she suffered from anxiety attacks,
depression, and insomnia, as a result of the agency's aggravation of a
pre-existing mental condition caused by its discriminatory conduct.
Upon review of the evidence, taking into consideration the duration,
severity and limited evidence presented of the harm, as well as awards
of non-pecuniary damages in similar cases, it is the decision of the
Commission to AFFIRM the final agency action and conclude that complainant
is entitled to $3,500 in non-pecuniary compensatory damages.
ORDER
1. The agency shall place complainant in the full-time Rural Carrier
position, with retroactive seniority, and in accordance with paragraph
two, set forth below, award back pay and benefits lost as a result of
complainant's termination on March 17, 2003.
2. The agency shall determine the appropriate amount of back pay,
with interest, and other benefits due complainant, including all salary
increases, pursuant to 29 C.F.R. � 1614.501, no later than sixty (60)
calendar days after the date this decision becomes final. 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 complainant for
the undisputed amount within sixty (60) calendar days of the date the
agency determines the amount it believes to be due. 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."
3. The agency shall pay complainant $3,500.00 in non-pecuniary
compensatory damages.
4. The agency shall take corrective, curative and preventive action
to ensure that retaliation does not recur, including but not limited
to providing EEO training to the agency officials found to have
discriminated against complainant. The training shall focus on rights
and responsibilities under Title VII.
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 of the
agency's calculation of back pay and other benefits due petitioner,
including evidence that the corrective action has been implemented.
POSTING ORDER (G0900)
The agency is ordered to post at its Westerville Post Office facility
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.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
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 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 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 (S0900)
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
August 2, 2005
__________________
Date