01a01779
06-12-2003
Marilyn Minjarez v. United States Postal Service, 01A01779 06-12-03 .Marilyn Minjarez, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Marilyn Minjarez v. United States Postal Service,
01A01779
06-12-03
.Marilyn Minjarez,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A01779
Agency No. 1E-801-0074-97
Hearing No. 320-98-8031X
DECISION
Following its December 16, 1999 final order, the agency filed a
timely appeal, requesting that the Commission affirm its decision
not to implement one portion of the Administrative Judge's (AJ's)
order instructing it to formulate a new policy on sexual harassment.
In addition, complainant filed a timely cross-appeal, stating that the
AJ incorrectly limited the scope of the hearing, and should have awarded
her $100,000.00 in non-pecuniary compensatory damages. Both the agency's
and complainant's appeals are accepted by this Commission in accordance
with 29 C.F.R. � 1614.405. For the following reasons, the Commission
modifies the AJ's order.
Complainant filed a formal EEO complaint, alleging that she was sexually
harassed by a supervisor beginning in October 1996. The agency accepted
complainant's complaint for processing, and conducted an investigation of
the matter. At the conclusion of the investigation, complainant requested
a hearing before an EEOC Administrative Judge (AJ). Following a hearing,
the AJ issued a decision dated November 5, 1999, finding that complainant
had been subjected to sexual harassment as alleged for a period of over
three months. The agency subsequently issued a final decision on December
16, 1999, stating that the AJ's decision was supported by the record,
and it would implement all of the relief ordered with the exception of
one provision requiring the agency to formulate a new policy on sexual
harassment. The agency then
filed the instant appeal with the Commission with regard to that matter.
On appeal, the agency asserted that its current national written policy
on sexual harassment meets the remedial goals of Title VII. The agency
submitted a copy its policy, as well as a bulletin from the Postmaster
General addressing the issue of sexual harassment. It is noted that
the AJ found that the policy statements from 1994 and 1995 then in
the record failed to clearly describe the complaint process, did not
assure employees that they would be protected from sexual harassment
or offer assurances regarding confidentiality, and did not provide for
immediate and appropriate corrective action. The Commission finds that
the current statements, dated August 13, 1996, and April 21, 1998, are
also deficient in several respects. Specifically, the statements do not
contain a clear explanation of prohibited conduct, an anti-retaliation
clause, or confidentiality assurances, and do not clearly describe the
complaint process. Accordingly, we find that the AJ correctly ordered
the agency to formulate a new sexual harassment policy.
It is noted that, in her cross-appeal, complainant initially asserted
that the AJ erred in limiting the scope of the hearing to the issue of
sexual harassment. Specifically, complainant stated that she should have
been allowed to present evidence concerning a May 1997 evaluation and
recommendation that the agency not rehire her for a Casual position.
The AJ, however, correctly advised complainant that she must raise
this issue, which was not included in her formal complaint, with an EEO
Counselor. It is noted that the action occurred several months subsequent
to the alleged harassment, and was taken by a different supervisor.
Thus, complainant may contact a Counselor if she wishes to pursue the
matter and has not already done so.
Finally, complainant contended that she should have been awarded
$100,000.00 in non-pecuniary compensatory damages. It is noted that the
AJ found that complainant was entitled to a $3,000.00 award. An award
of compensatory damages for non-pecuniary losses, including emotional
harm, should reflect the extent to which the respondent directly or
proximately caused the harm, and the extent to which other factors
also caused the harm. The Commission has held that evidence from a
health care provider is not a mandatory prerequisite for recovery
of compensatory damages. Carpenter v. Department of Agriculture,
EEOC Appeal No. 01945652 (July 17, 1995). Courts also have held that
"expert testimony ordinarily is not required to ground money damages
for mental anguish or emotional distress." Sanchez v. Puerto Rico Oil
Co., 37 F.3d 712, 724 (1st Cir. 1994), citing Wulf v. City of Wichita,
883 F.2d 842, 875 (10th Cir. 1989); Busche v. Burkee, 649 F.2d 509, 512
n.12 (7th Cir.), cert. denied, 454 U.S. 897 (1981). A complainant's own
testimony, along with the circumstances of a particular case, can suffice
to sustain his/her burden in this regard. See U.S. v. Balistrieri, 981
F.2d 916, 932 (7th Cir. 1992), cert. denied, 114 S. Ct. 58 (1993)(housing
discrimination). Nonetheless, the absence of supporting evidence may
affect the amount of damages deemed appropriate in specific cases.
Lawrence v. USPS, EEOC Appeal No. 01952288 (April 18, 1996).
The Commission notes that damage awards for emotional harm are difficult
to determine and that there are no definitive rules governing the amount
to be awarded in given cases. A proper award must meet two goals: that it
not be "monstrously excessive" standing alone, and that it be consistent
with awards made in similar cases. See Cygnar v. City of Chicago, 865
F.2d 827, 848 (7th Cir. 1989). Further, Federal courts have awarded
compensatory damages in a wide range of amounts depending on the facts of
the particular case, and the supporting evidence presented. See, e.g.,
Farpella-Crosby v. Horizon Health Care, 97 F.3d 803 (5th Cir. 1996)
($7,500.00 award of non-pecuniary damages for humiliation and stress
from sexual harassment where employee's testimony was corroborated by a
co-worker). In addition, the Commission has awarded compensatory damages
based on the extent of the damages proved. See Pailin v. Department
of Defense, EEOC Appeal No. 01954350 (January 26, 1998) ($2,500.00
award based upon complainant's testimony that she experienced tension
and depression, and withdrew from her co-workers); Lawrence v. USPS,
EEOC Appeal No. 01952288 (April 18, 1996) ($3,000.00 in non-pecuniary
damages where complainant claimed sexual harassment caused embarrassment,
humiliation, and defamation resulting in weight loss, nausea, stomach
problems, headaches, and emotional stress).
Based upon a review of the record, and considering the nature and severity
of the harm, we find the AJ's award of $3,000.00 to be reasonable.
Complainant stated that she was scared and frightened after the
harassment, and feared the supervisor would hurt her. Further, the
AJ noted that complainant continued to experience feelings of fear and
anxiety for at least four months. Nevertheless, complainant acknowledged
that she did not seek treatment, and there are no corroborating statements
to support her claim.
CONCLUSION
Based upon a review of the record, and for the foregoing reasons it is
the decision of the Commission to affirm the AJ's order with regard to
the sexual harassment policy.<1>
ORDER
The agency is ORDERED to take the following remedial action:
1. The agency shall formulate a new written policy on sexual harassment
that meets the requirements of Burlington Industries, Inc., v. Ellerth,
524 U.S. 742 (1998), Faragher v. City of Boca Raton, 524 U.S. 775 (1998),
and the Enforcement Guidance: Vicarious Liability for Unlawful Harassment
by Supervisors, EEOC Notice No. 915.002 (June 18, 1999). The agency shall
then post, at its Denver General Mail Facility, copies of the revised
policy regarding sexual harassment within sixty (60) calendar days of
the date this decision becomes final. The policy shall be posted in
conspicuous places, including all places where notices to employees are
customarily posted. The agency shall take reasonable steps to ensure
that the policy is not altered, defaced, or covered by any other material.
2. The agency shall, within thirty (30) days of the date this decision
becomes final, pay complainant $3,000.00 in compensatory damages if it
has not already done so.
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 evidence that corrective action
has been implemented.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0501)
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 (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
____06-12-03______________________________
Date
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days of mailing. I certify that
the decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
_________________________
Date
_________________________
1There is no evidence to show, and complainant does not assert that the
agency has not fully implemented the remaining provisions of the AJ's
order, or failed to post notice of the finding of discrimination.