0120102789
11-30-2010
Rebecca Lopez-Rosende, Complainant, v. John E. Potter, Postmaster General, United States Postal Service (Pacific Area), Agency.
Rebecca Lopez-Rosende,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service
(Pacific Area),
Agency.
Appeal No. 0120102789
Hearing No. 480-2007-00011X
Agency No. 4F-920-0018-03
DECISION
On June 7, 2010, Complainant timely filed an appeal from the Agency's
May 26, 2010, final order 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. The Commission accepts the appeal pursuant
to 29 C.F.R. � 1614.405(a). For the following reasons, the Commission
MODIFIES the Agency's final order.
ISSUE PRESENTED
The issue presented is whether the substantial evidence supports a
higher award of non-pecuniary damages than the EEOC Administrative
Judge's award of $35,000.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked
as a Distribution Clerk at the Apple Valley, California Post Office.
On April 8, 2010, Complainant filed an EEO complaint in which she alleged
that the Agency subjected her to sexual and retaliatory harassment from
2000 until 2007. Complainant further alleged that the Agency retaliated
against her when it denied her overtime in 2003.
At the conclusion of the investigation, the Agency provided Complainant
with a copy of the report of investigation and notice of her right to
request a hearing before an EEOC Administrative Judge (AJ). Complainant
timely requested a hearing, and the AJ held a hearing on March 1 and 3,
2007. In a decision dated April 13, 2010, the AJ found that Complainant
proved that since 2000, she had been subjected to sexual harassment by a
co-worker who engaged in offensive sexual conduct that included making
whistling and catcall noises at Complainant, violently pushing postal
equipment toward Complainant, making orgasmic noises in the presence of
Complainant, following Complainant to a therapy session, and talking
to other employees about his explicit sexual desires for Complainant.
The AJ further found that the Agency was liable for subjecting Complainant
to harassment because it failed to take prompt and corrective actions to
correct the harassment after receiving notice of the harassment. The AJ
further found that Complainant proved that the Agency retaliated against
her when it assigned her fewer hours of overtime than male employees.
In order to remedy the discrimination and harassment, the AJ ordered the
Agency to pay Complainant $35,000 in non-pecuniary compensatory damages;
pay Complainant $30,380 in attorney's fees; institute a policy that
prevents employees from discussing female employees in sexual terms,
including their physical appearance and manner of dress; provide 40
hours of training to all responsible management officials; consider
disciplining the responsible management officials; consider disciplining
the harasser; pay Complainant the equivalent of the average overtime
paid to male subordinate employees in 2003, minus the amount of overtime
already paid to Complainant in 2003; restore any sick or annual leave
Complainant used because of the discrimination and harassment; and post
a notice in the facility regarding the AJ's findings. The AJ determined
that Complainant was not entitled to a larger non-pecuniary compensatory
damages award because she did not "require medical or psychological
treatment after approximately 2000 or 2001." AJ's Decision, p. 35.
The Agency subsequently issued a final order fully adopting the AJ's
finding that Complainant proved that the Agency subjected her to
discrimination and harassment as alleged.
CONTENTIONS ON APPEAL
On appeal, Complainant maintains that she is only appealing the amount
of non-pecuniary compensatory damages awarded by the AJ. Complainant
contends that she is entitled to a non-pecuniary compensatory damages
award of $100,000. Complainant maintains that this amount is warranted
because she testified that the harassment caused her to be depressed;
affected her church attendance; resulted in her seeking pastoral
counseling; caused her to feel sad and unhappy and stressed at work; and,
resulted in her taking an antidepressant medication. The Agency maintains
that the AJ's award of $35,000 is consistent with Commission precedent and
is warranted because Complainant did not present any medical testimony or
records regarding damages in this case. The Agency further contends that
the AJ erred when she found that the harassment lasted for seven years.
The Agency contends that the harassment did not begin until March 9,
2003, but the AJ erroneously found that it began in 2000.
STANDARD OF REVIEW
Pursuant to 29 C.F.R. � 1614.405(a), all post-hearing factual findings by
an AJ will be upheld if supported by substantial evidence in the record.
A decision regarding compensatory damages is a question of fact, and,
as such, an AJ's post-hearing finding regarding damages will be upheld
if supported by substantial evidence. Ferrall v. Dep't of the Navy,
EEOC Appeal No. 07A30054 (Apr. 23, 2003) (citing Cooper Industries,
Inc. v. Leatherman Tool Group, Inc. 532 U.S. 424, 437 (2001)); Hernandez
v. U.S. Postal Serv., EEOC Appeal No. 07A300005 (July 16, 2004).
Substantial evidence is defined as "such relevant evidence as a reasonable
mind might accept as adequate to support a conclusion." Universal
Camera Corp. v. National Labor Relations Board, 340 U.S. 474, 477 (1951)
(citation omitted). A finding regarding whether or not discriminatory
intent existed is a factual finding. See Pullman-Standard Co. v. Swint,
456 U.S. 273, 293 (1982). An AJ's conclusions of law are subject to a
de novo standard of review, whether or not a hearing was held.
ANALYSIS AND FINDINGS
Non-Pecuniary Compensatory Damages
As an initial matter, we note that the parties only contest the
appropriate amount of non-pecuniary compensatory damages on appeal;
therefore, we restrict our appellate review to the issue of non-pecuniary
compensatory damages. The Agency contends that the AJ erroneously
concluded that the harassment lasted for seven years, instead of only
approximately four years. However, we note that the Agency fully
adopted the AJ's decision, and as such, cannot now belatedly challenge
her findings of fact. Thus, we will not disturb the AJ's finding
that the Agency is liable for subjecting Complainant to seven years
of harassment.
In this case, the AJ awarded Complainant $35,000 in non-pecuniary
compensatory damages. To receive an award of compensatory damages,
a complainant must demonstrate that she has been harmed as a result of
the agency's discriminatory action, and establish the extent, nature,
severity, and the duration or expected duration of the harm. Rivera
v. Dep't of the Navy, EEOC Appeal No. 01934157 (July 22, 1994), req. for
reconsid. den'd, EEOC Request No. 05940927 (Dec. 11, 1995); Compensatory
and Punitive Damages Available Under Section 102 of the Civil Rights
Act of 1991, (Enforcement Guidance) EEOC Notice No. 915.002 (July 14,
1992), at 11-12, 14.
We note that 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. Enforcement Guidance 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 non-pecuniary losses that are incurred as a result of the
discriminatory conduct. Statements from others, including family members,
friends, health care providers, or 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. Lawrence v. U.S. Postal Serv.,
EEOC Appeal No. 01952288 (Apr. 18, 1996) (citing Carle v. Dep't of the
Navy, EEOC Appeal No. 01922369 (January 5, 1993)).
The more inherently degrading or humiliating the agency's action is, the
more reasonable it is to infer that a person would suffer humiliation or
distress from that action. The absence of supporting evidence, however,
may affect the amount of damages appropriate in specific cases. See Banks
v. U.S. Postal Serv., EEOC Appeal No. 07A20037 (Sept. 29, 2003) (citing
Lawrence v. U.S. Postal Serv., EEOC Appeal No. 01952288 (Apr. 18, 1996)).
An award of non-pecuniary compensatory damages should reflect the extent
to which the agency's discriminatory action directly or proximately caused
the harm as well as the extent to which other factors also caused the
harm. Johnson v. Dep't of the Interior, EEOC Appeal No. 01961812 (June
18, 1998). It is the complainant's burden to provide objective evidence
in support of her claim and proof linking the damages to the alleged
discrimination. Papas v. U.S. Postal Serv., EEOC Appeal No. 01930547
(Mar. 17, 1994); Mints v. Dep't of the Navy, EEOC Appeal No. 01933956
(Nov. 24, 1993). The Commission recognizes that not all harms are
amenable to a precise quantification; the burden of limiting the remedy,
however, rests with the employer. Chow v. Dep't of the Army, EEOC Appeal
No. 01981308 (Feb. 12, 2001). Moreover, the amount of an 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. Cygnar v. Chicago, 865 F.2d 827, 848 (7th Cir. 1989); EEOC
v. AIC Sec. Investigations, Ltd., 823 F. Supp. 571, 574 (N.D.Ill. 1993).
In this case, Complainant provided detailed testimony regarding the
effects of the harassment on her life. For instance, Complainant
testified that seven years of harassment destroyed her in every way.
Hearing Transcript, p. 52. "I can't concentrate. I can't think. I'm
a nervous wreck," Complainant testified. Id. Complainant further
testified that the harassment has made it difficult for her to sleep,
made her depressed, resulted in nightmares, and caused her to scream
and yell at her children. Hearing Transcript, pp. 52, 91. Complainant
further testified that the harassment destroyed her friendships because
people were tired of hearing her incessantly talk about the harassment,
affected her romantic relationships, and made her not want to have "any
involvement with people." Hearing Transcript, p. 91. "And it has just
made me feel dirty. I mean, I feel like I've run away from society and
I want to be away from people," Complainant testified. Id.
Additionally, Complainant testified that she experienced chest pains,
sought counseling with an Agency psychologist, went to a physician,
and had to take medication for anxiety because of the harassment.
Hearing Transcript, pp. 57, 58. Complainant further testified that she
was unable to take medication to alleviate the depression and anxiety
because it made her ill. Hearing Transcript, p. 94.
A co-worker (CW1) testified that Complainant "was constantly worried
about" the threat of the harasser coming into her work area and harassing
her and told CW1 on several occasions that she was scared of the harasser.
Hearing Transcript, p. 79. "I had to help her out of the building
before because she was so stressed out from it that she was weak and
feeling dizzy," CW1 testified. Id. Another co-worker (CW2) testified
that Complainant was "distraught" and "extremely upset" because she was
continuously subjected to harassment. Hearing Transcript, p. 127.
Based on the review of the evidence, we find that the AJ's award of
$35,000 in non-pecuniary compensatory damages is inconsistent the
record in this case and contrary to what the Commission has awarded in
cases where complainants have suffered emotional harm that is similar
in severity and duration to the emotional harm complainant suffered in
the instant case. Complainant, CW1, and CW2 provided ample compelling
testimony that Complainant suffered extreme, prolonged emotional
distress and harm because of the Agency's seven-year failure to promptly
and effectively address the harassment. Further, as noted by the AJ,
"[T]he cumulative effect of Agency managers' callousness and retaliation
on Complainant's psyche" extended well beyond the workplace into every
facet of Complainant's life, including church, friendships, therapy
sessions, and romantic relationships.
In cases where victims of discrimination suffered harm that was
of similar degree and duration to that suffered by Complainant,
the Commission has awarded non-pecuniary compensatory damages that
ranged from $100,000 to $200,000. See Glockner v. Dep't of Veterans
Affairs, EEOC Appeal No. 07A30105 (Sept. 23, 2004) ($200,000.00 in
non-pecuniary compensatory damages where complainant was subjected
to harm for five years and she suffered humiliation, depression,
significant fears, and her professional reputation was damaged);
Santiago v. Dep't of the Army, Appeal No. 01955684 (Oct. 14, 1998)
($125,000 in non-pecuniary compensatory damages where complainant suffered
depression and other emotional and mental disorders, and severe chest
and stomach pains, digestive problems, and incidents of shortness
of breath due to three years of verbal abuse and sex and age-based
discrimination by her supervisor); Deidra Brown-Fleming v. Dep't
of Justice, EEOC Appeal No. 0120082667 (Oct. 28, 2010) ($150,000 in
non-pecuniary damages where complainant experienced anxiety, stress,
insomnia, difficulty concentrating, disassociation, social isolation,
damage to her professional reputation, withdrawal from relationships,
nightmares, and worsening psoriasis because of retaliation); Hendley
v. Dep't of Justice, EEOC Appeal No. 01A20977 (May 15, 2003), request
for reconsideration dismissed EEOC Request No. 05A30962 (Jan. 14, 2004)
($100,000.00 in non-pecuniary compensatory awarded where complainant
experienced paranoia, insomnia, eating disorders and uncontrollable crying
for six years and would required treatment for the rest of her life);
Franklin v. U.S. Postal Serv., EEOC Appeal No. 07A00025 (Jan. 19, 2001)
($150,000 in non-pecuniary compensatory damages awarded where as a result
of the agency's actions, complainant experienced extensive symptoms of
emotional distress, resulting in changes in complainant's personality,
the ending of his marriage, severe strains in his relationships with
those close to him, including his children, and diminished enjoyment
of life).
Thus, the testimony of Complainant and her co-workers, along with the
particular circumstances of this case, compel us to find that an award in
the amount of $150,000 is more appropriate in this case. We note that,
contrary to the Agency's assertions, medical documentation or medical
expert testimony is not always necessary to warrant an award of this
amount. Franklin v. U.S. Postal Serv., EEOC Appeal Nos. 07A00025 and
01A03882 (Jan. 19, 2001) ($150,000 in non-pecuniary compensatory damages
awarded where, despite lack of medical evidence, testimony of complainant
and his wife established that he was withdrawn, depressed, embarrassed,
humiliated, lost self esteem, and experienced relationship strains).
Consequently, we modify the Agency's final order because the AJ's award
of $35,000 non-pecuniary compensatory damages is clearly not supported by
substantial evidence. Our award is based on the actual harm experienced
which was the result of the Agency's actions, and takes into account
the nature, duration, and severity of the harm Complainant experienced
as a result of those actions. See, e.g., Utt v. U.S. Postal Serv.,
EEOC Appeal No. 0720070001 (Mar. 26, 2009).
CONCLUSION
After a review of the record in its entirety, including consideration of
all statements submitted on appeal, the Commission MODIFIES the Agency's
final order with respect to non-pecuniary compensatory damages. We ORDER
the Agency to take corrective action in accordance with this decision
and the Order of the Commission, below.
ORDER
Within sixty (60) days of the date on which this decision becomes final,
unless otherwise specified, and unless it has already done so:
1. The Agency shall immediately take all appropriate action to prevent
additional harassment of complainant by any co-worker, but specifically
the co-worker identified below as the harasser, including transferring
the co-worker if necessary.
2. The Agency shall institute a policy that prevents co-workers and other
employees who work at the same facility as complainant from discussing
any female employee, but particularly complainant, in sexual terms; and
from graphically discussing complainant's and other females' appearance,
bodies, their manner of dress; and from making any comments about them
to one another on the workroom floor. The Agency shall communicate the
policy to all employees, managerial and bargaining, both orally and in
writing, and shall thereafter post the policy in a conspicuous location
on its premises. The Agency should consider serious discipline for any
employee who violates the policy.
3. Within 90 days of the date on which this decision becomes final, the
Agency shall provide at least 40 hours of training to each and all of the
supervisors and managers named herein on their obligations to prevent
sexual harassment and not to retaliate, either actively or passively,
against employees who exercise their rights to file EEO complaints.
4. The Agency shall consider taking disciplinary action against the
Agency officials and employees identified as being responsible for the
discriminatory harassment perpetrated against complainant. The Agency
shall report its decision. If the Agency decides to take disciplinary
action, it shall identify the action taken. If the Agency decides not
to take disciplinary action, it shall set forth the reason(s) for its
decision not to impose discipline.
5. The Agency shall pay complainant overtime for 2003, as measured by the
average hours of overtime worked by male employees who were junior to
her, minus the hours of overtime complainant worked. Complainant shall
cooperate with the agency and present all documentation to support this
restoration which the agency might request.
6. The Agency shall restore any sick leave and annual leave and reimburse
complainant for any leave without pay she used as the result of the
unlawful discriminatory harassment discussed herein. Complainant shall
cooperate with the agency and present all documentation to support this
restoration order as soon as possible.
7. The Agency shall prominently post at the Apple Valley Post Office,
a notice of the finding of discrimination as set forth in the Posting
Order, below.
8. The agency shall pay to complainant the sum of $150,000 as
non-pecuniary compensatory damages.
9. The agency shall pay to complainant and/or her attorney, as they
shall require, the sum of $30,380 as and for attorney's fees.
10. The agency is further directed to submit a report of compliance, as
provided in the statement entitled "Implementation of the Commission's
Decision."
POSTING ORDER (G0610)
The Agency is ordered to post at its Apple Valley, California Post
Office 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.
ATTORNEY'S FEES (H0910)
If complainant has been represented by an attorney (as defined by 29
C.F.R. � 1614.501(e)(1)(iii)), 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 (K0610)
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 77960, Washington,
DC 20013. 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 (M0610)
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), at 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 (R0610)
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 (Z0610)
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
November 30, 2010
Date
2
0120102789
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120102789