[Redacted], Lamar M., 1 Complainant,v.Louis DeJoy, Postmaster General, United States Postal Service (Capital Metro Area), Agency.

Equal Employment Opportunity Commission

Mar 29, 2023

Appeal No. 2022000907 (E.E.O.C. Mar. 29, 2023)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Lamar M.,1 Complainant, v. Louis DeJoy, Postmaster General, United States Postal Service (Capital Metro Area), Agency. Appeal No. 2022000907 Agency No. 4K-220-0010-19 DECISION On November 30, 2021, Complainant filed an appeal with the Equal Employment Opportunity Commission (EEOC or Commission), pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s October 28, 2021, final decision addressing compensatory damages following the finding of discrimination in violation of Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq. For the following reasons, the Commission MODIFIES the Agency’s final decision. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Supervisor of Distribution Operations at the Agency’s Processing and Distribution Center in Merrifield, Virginia. On December 26, 2018, Complainant filed a formal complaint alleging the Agency discriminated against him based on disability (deafness) when: 1. on October 30, 2018, he was not provided with a certified interpreter at the kickoff Combined Federal Campaign (CFC) meeting; and 2. on November 2, 2018, he was segregated during the CFC kickoff meeting. 1 This case has been randomly assigned a pseudonym which will replace Complainant’s name when the decision is published to non-parties and the Commission’s website. 2022000907 2 At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation and notice of his right to request a hearing before an Equal Employment Opportunity Commission Administrative Judge (AJ). When Complainant did not respond, the Agency issued a final Agency decision (FAD) finding no discrimination. On appeal, the Commission determined that the Agency denied Complainant a reasonable accommodation, in violation of the Rehabilitation Act. Lamar M. v. U.S. Postal Serv., EEOC Appeal No. 2019005929 (June 15, 2021). Accordingly, the Agency’s final decision was reversed, and the Agency was ordered to issue a final decision on compensatory damages. Id. On September 14, 2021, Complainant submitted a request for approximately $14,300.00 in pecuniary damages. Complainant requested $29.40 in postage stamps; $30.00 for editing services associated with his complaint; $11,520.00 for 40 days of missed work from November 1, 2018, until March 1, 2019, due to heart surgery; $1,045.00 for copayments for health visits from January 1, 2018, to September 7, 2021; and $1,671.19 for pharmaceutical copayments from January 23, 2018, to June 2, 2021. Complainant also submitted a request for $25,000.00 in non-pecuniary damages. In support of his non-pecuniary damages claim, Complainant provides statements from himself, his wife, daughter, son-in-law, co-worker, and friend. Complainant asserts that the discriminatory action has caused him emotional pain and suffering, mental anguish, loss of enjoyment of life, injury to professional reputation, loss of health and more. Complainant notes that he has experienced emotional distress since 2018, and that he continues to suffer from profound feelings of low self- esteem and extreme frustration. Complainant also submitted several statements, dated from 1990 to 1998, from various community members discussing and/or thanking Complainant for his work within the community. On October 28, 2021, the Agency issued its decision on damages. Regarding pecuniary damages, the Agency stated that Complainant claimed $29.40 in postage stamps but only provided receipts for $15.30. The Agency determined that it was not unreasonable that Complainant would have spent $29.40 in total, and approved postage in the amount of $29.40. The Agency determined that Complainant’s $30.00 request for editing services was akin to a representative fee by a non- attorney and denied it. The Agency determined that Complainant’s request for $11,520.00 for 40 days of missed work from November 1, 2018, to March 1, 2019, was essentially a backpay request and not allowed. With regard to Complainant’s request for $1,045.00 for patient copayments and $1,071.29 for pharmacy copayments, the Agency determined that while Complainant provided payment descriptions for these amounts, Complainant failed to provide evidence linking the copayments to the discrimination Complainant suffered on October 30, 2018. Therefore, the Agency declined these requests. Regarding non-pecuniary damages, the Agency stated that based upon Complainant’s documentation, and in researching prior award amounts in other accommodation matters, that an award of $5,000.00 would be more appropriate. 2022000907 3 In reaching this amount, the Agency noted that despite the documents provided, none of the paperwork mentioned the October 30, 2018, incident specifically. Instead, the various statements discussed Complainant’s overall experience and alleged discrimination over a decade. Based on the submissions, the Agency awarded Complainant $5,000.00 in non-pecuniary damages and $29.40 in pecuniary damages. CONTENTIONS ON APPEAL On appeal, Complainant contends that the Agency continuously denies him a reasonable accommodation on an ongoing basis. Complainant asserts that this has led to others undermining his authority and value at work, resulting in him feeling overwhelmed, stressed, and irritable. Complainant notes the statements submitted with his request and asserts that the ongoing behavior and constant denials more than justifies the $25,000.00 non-pecuniary request. Regarding pecuniary damages, Complainant stated that the $29.40 amount was insufficient. Complainant provides ten receipts for items mailed associated with his EEO complaint and asserts that two other receipts were previously provided during the investigation: $6.70 for the submission of his formal complaint on December 26, 2018, and $10.40 for submission of his EEO affidavit. There receipts were found at 212 and 305 of the Report of Investigation and were not originally calculated by the Agency. These twelve receipts total $134.26. Complainant also requests that the Commission modify the pecuniary damages award to what he originally requested, which included restoration of leave/backpay of time off, editing services, and payment for his medical visit copayments and medication expenses. The Agency did not provide a response brief. ANALYSIS AND FINDINGS Compensatory Damages To receive an award of compensatory damages, Complainant must demonstrate that he has been harmed as a result of the Agency's discriminatory action; the extent, nature, and severity of the harm; 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 recon. denied, EEOC Request No. 05940927 (Dec. 11, 1995); Compensatory and Punitive Damages Available Under Section 102 of the Civil Rights Act of 1991(EEOC Notice No. 915.002), EEOC Notice No. 915.002 (July 14, 1992), at 11-12, 14. Compensatory damages may be awarded for past and future pecuniary losses (i.e., out-of-pocket expenses) and non-pecuniary losses (e.g., pain and suffering, mental anguish) which are directly or proximately caused by the agency's discriminatory conduct. EEOC Notice No. 915.002 at 8. 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. Id. 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, see Goetze v. Dep't. of the Navy, EEOC Appeal No. 01991530 (Aug. 23, 2001). 2022000907 4 In Carle v. Dep’t 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 (Jan. 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. 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. Dep’t of Agric., EEOC Appeal No. 01945652 (July 17, 1995). Pecuniary Damages Pecuniary damages are quantifiable out-of-pocket expenses incurred due to the Agency's discriminatory actions. Damages for past pecuniary damages will not normally be granted without documentation such as receipts, records, bills, cancelled checks, or confirmation by other individuals of actual loss and expenses. Missed Work - Lost Wages Complainant requests compensation for 40 days of missed work he allegedly incurred because of the Agency’s discrimination. Based on the record, we find that Complainant has not shown that his absences from work were related to the denial of interpreter services on October 30, 2018. To the extent that Complainant is requesting pecuniary damages for lost wages, we note lost wages are statutorily excluded from compensatory damage awards. See 42 U.S.C. § 1981a(b)(2), 1991. Coralee H. v. U.S. Postal Serv., EEOC Appeal No. 2019004219 (Aug. 6, 2020). Therefore, we affirm the Agency’s decision to deny compensation for lost wages. Medical Expenses In his supplemental affidavit and on appeal, Complainant requested reimbursement for $1,045.00 in copayments incurred from health visits from January 1, 2018, to September 7, 2021. The record reflects that 20 of the 57 medical visits occurred from January 2, 2018, through October 12, 2018, which were before the October 30, 2018, discriminatory act at issue. Therefore, those copayments are not attributable to the Agency’s discriminatory act. The record further reflects that Complainant’s next medical visit occurred on November 2, 2018, and the statement balance ends on August 13, 2021. The closest visit in time to the discriminatory act was Complainant’s November 2, 2018, visit. However, there is no specific indication that this visit, or the other subsequent visits were in direct relation to the Agency’s denial of interpreter services on October 30, 2018. 2022000907 5 Other than attending these appointments, there are no details about the nature of the appointments or the treatment that Complainant received. As such, we find that Complainant has not shown that his medical visits were connected to the finding of denial of reasonable accommodation. Complainant requested reimbursement for $1,671.19 for pharmaceutical copayments from January 23, 2018, to June 2, 2021. Complainant provided the list of medications, date, and cost of purchase. However, Complainant does not specify what the medications are for or how the medications relate to the October 30, 2018, incident. Therefore, we affirm the Agency’s decision to deny Complainant’s request for a pecuniary damages award with respect to pharmaceutical copayments. Non-Pecuniary Damages Non-pecuniary compensatory damages are losses that are not subject to precise quantification, i.e., emotional pain, suffering, inconvenience, mental anguish, loss of enjoyment of life, injury to professional standing, injury to character and reputation, injury to credit standing, and loss of health. See Enforcement Guidance: Compensatory and Punitive Damages Available under § 102 of the Civil Rights Act of 1991 (EEOC Guidance), EEOC Notice No. 915.002 at 10 (July 14, 1992). Non-pecuniary damages must be limited to compensation for the actual harm suffered as a result of the Agency's discriminatory actions. See Carter v. Duncan-Higgans. Ltd., 727 F.2d 1225 (D.C. Cir. 1994); EEOC Guidance at 13. Additionally, 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 Jackson v. U.S. Postal Serv., EEOC Appeal No. 01972555 (April 15, 1999) (citing Cygnar v. City of Chicago, 865 F. 2d 827, 848 (7th Cir. 1989)). We note that evidence from a health care provider or other expert is not a mandatory prerequisite for recovery of compensatory damages for emotional harm. See 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 (Jan. 5, 1993)). Objective evidence of compensatory damages can include statements from a complainant concerning 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. Id. Based on the Agency’s history of not providing interpreters, Complainant requested $25,000.00 in non-pecuniary compensatory damages. Complainant requested this amount for his emotional pain and suffering, mental anguish, loss of enjoyment of life, injury to his professional standing and character. Complainant explained that the Agency was aware that he was deaf and required an American Sign Language interpreter, especially given his prior EEO complaints and settlements on this matter. Given this prior history, Complainant stated that his need for an interpreter is clear and on-going. 2022000907 6 Complainant noted that he continues to experience profound feelings of low self-esteem and extreme frustration associated with his work environment, and that he has endured ongoing acts of degradation by management due to his disability. Complainant states that he is angry, hurt, ashamed and feels isolated by his deafness. Additionally, the supplemental investigation contains testimony from two of Complainant's co- workers, both of whom are deaf. Both coworkers recounted similar instances where management failed to provide interpreter services. We note that both coworkers also detailed numerous incidents that occurred outside of the issue at hand. We acknowledge the statements that Complainant and his supporting coworkers have shared as well as the emotional difficulty of separating other events from the incident at hand. However, the award should only encompass the harm Complainant sustained by the discriminatory act that occurred on October 30, 2018. Here, the Agency awarded Complainant $5,000 in non-pecuniary damages. In reviewing this matter, we find that the Agency’s award of $5,000 is insufficient. Based on the record, we find an award of $10,000.00 is more consistent with the amounts awarded in similar cases and supported by the record. See Coralee H. v. U.S. Postal Serv., EEOC Appeal No. 2019004219 (Aug. 6, 2020) (complainant awarded $10,000.00 for the Agency’s denial of her request for an American Sign Language interpreter for a one-time safety and service talk. Complainant stated she experienced emotional distress since 2015, however, the award of damages only encompassed the harm the complainant sustained from the discriminatory act at issue); Don S. v. U.S. Postal Serv., EEOC Appeal No. 0120142824 (Dec. 22, 2016) (the complainant was awarded $12,000.00 in non-pecuniary compensatory damages for a variety of claims, including being denied attendance at mail handlers' meetings, safety talks, and trainings due to no interpreter being provided); and Howard v. Dep’t of Def., EEOC Appeal No. 07A10098 (Sept. 30, 2002) ($10,000.00 in non-pecuniary compensatory damages where, as a result of the discriminatory conduct, complainant's professional reputation was harmed, and she was physically and socially isolated from her co-workers). Therefore, we modify the Agency's award of non-pecuniary compensatory damages to provide for an award of $10,000.00. The Commission finds that this award of $10,000.00 is not “monstrously excessive” standing alone, is not the product of passion or prejudice, and is consistent with the amounts awarded in similar cases. See Jackson v. U.S. Postal Serv., EEOC Appeal No. 01972555 (Apr. 15, 1999) (citing Cygnar v. City of Chicago, 865 F. 2d 827, 848 (7th Cir. 1989)). Costs We note that the Agency provided Complainant with costs associated with the processing of the complaint as part of his pecuniary damages. By federal regulation, the Agency is required to award costs for the successful processing of an EEO complaint in accordance with existing case law and regulatory standards. EEOC Regulation 29 C.F.R. § 1614.501(e)(1)(ii). Reasonable costs can include court reporter fees, transcripts, printing, witnesses, photocopying, mileage, postage, telephone calls, or any other reasonable out-of-pocket expense incurred by the attorney 2022000907 7 that are normally charged to a fee-paying client in the normal course of providing representation. 29 C.F.R. § 1614.501(e)(2)(ii)(C); Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at Chap. 11, § VI.E. (Aug. 5, 2015). Therefore, we find that these awarded amounts constitute costs rather than compensatory damages. Postage In Complainant’s supplemental brief for compensatory damages, he claimed $29.40 in postage, but only provided receipts for a portion of the claim. The Agency found it reasonable that Complainant would have spent $29.40 and decided to award the requested amount. On appeal, Complainant provides additional receipts supporting his request for a total of $134.26 in postage. Complainant indicates that two of the receipts were provided during the investigation. However, Complainant did not explain why he did not submit ten of the twelve receipts prior. Nonetheless, Complainant has provided the receipts and indicated that the postage was related to the processing of this matter. The Agency did not contest the submission. Therefore, upon review, we find that Complainant is entitled to $134.26 in mailing costs. Editing Services Complainant requested reimbursement for $30.00 in costs incurred from hiring a company to edit his EEO appeal statements. Complainant provided a detailed invoice from the company. Here, the Agency likened the service as a fee to a non-attorney representative. We disagree and note that the Commission has previously awarded a similar fee in another matter where the same Agency also denied interpreter services for a hearing-impaired complainant. Coralee H., v. U.S. Postal Serv., EEOC Appeal No. 2019004219 (Aug. 6, 2020). Accordingly, we find that Complainant is entitled to $30.00 in editing service fee. CONCLUSION Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we MODIFY the Agency’s final decision and REMAND the matter to the Agency in order to comply with the ORDER below. ORDER The Agency is ordered, to the extent that it has not already done so, to: 1. within sixty (60) calendar days of the date on which this decision is issued, pay Complainant $10,000.00 in non-pecuniary damages; 2. within sixty (60) calendar days of the date on which this decision is issued, pay Complainant $30.00 in editing service fees; and 3. within sixty (60) calendar days of the date on which this decision is issued, pay Complainant $134.26 in postage costs. 2022000907 8 The Agency is further directed to submit a report of compliance in digital format as provided in the statement entitled "Implementation of the Commission's Decision." The report shall be submitted via the Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). Further, the report must include supporting documentation of the Agency's calculation of back pay and other benefits due Complainant, including evidence that the corrective action has been implemented. IMPLEMENTATION OF THE COMMISSION’S DECISION (K0719) Under 29 C.F.R. § 1614.405(c) and §1614.502, compliance with the Commission’s corrective action is mandatory. Within seven (7) calendar days of the completion of each ordered corrective action, the Agency shall submit via the Federal Sector EEO Portal (FedSEP) supporting documents in the digital format required by the Commission, referencing the compliance docket number under which compliance was being monitored. Once all compliance is complete, the Agency shall submit via FedSEP a final compliance report in the digital format required by the Commission. See 29 C.F.R. § 1614.403(g). The Agency’s final report must contain supporting documentation when previously not uploaded, and the Agency must send a copy of all submissions to the Complainant and his/her representative. 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. Failure by an agency to either file a compliance report or implement any of the orders set forth in this decision, without good cause shown, may result in the referral of this matter to the Office of Special Counsel pursuant to 29 C.F.R. § 1614.503(f) for enforcement by that agency. STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0920) The Commission may, in its discretion, reconsider this appellate decision if Complainant or the Agency submits a written request that contains arguments or evidence that tend to establish that: 1. The appellate decision involved a clearly erroneous interpretation of material fact or law; or 2022000907 9 2. The appellate decision will have a substantial impact on the policies, practices, or operations of the agency. Requests for reconsideration must be filed with EEOC’s Office of Federal Operations (OFO) within thirty (30) calendar days of receipt of this decision. If the party requesting reconsideration elects to file a statement or brief in support of the request, that statement or brief must be filed together with the request for reconsideration. A party shall have twenty (20) calendar days from receipt of another party’s request for reconsideration within which to submit a brief or statement in opposition. See 29 C.F.R. § 1614.405; Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at Chap. 9 § VII.B (Aug. 5, 2015). Complainant should submit his or her request for reconsideration, and any statement or brief in support of his or her request, via the EEOC Public Portal, which can be found at https://publicportal.eeoc.gov/Portal/Login.aspx. Alternatively, Complainant can submit his or her request and arguments to the Director, Office of Federal Operations, Equal Employment Opportunity Commission, via regular mail addressed to P.O. Box 77960, Washington, DC 20013, or by certified mail addressed to 131 M Street, NE, Washington, DC 20507. In the absence of a legible postmark, a complainant’s request to reconsider shall be deemed timely filed if OFO receives it by mail within five days of the expiration of the applicable filing period. See 29 C.F.R. § 1614.604. An agency’s request for reconsideration must be submitted in digital format via the EEOC’s Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). Either party’s request and/or statement or brief in opposition must also include proof of service on the other party, unless Complainant files his or her request via the EEOC Public Portal, in which case no proof of service is required. Failure to file within the 30-day time period will result in dismissal of the party’s request for reconsideration as untimely, unless extenuating circumstances prevented the timely filing of the request. Any supporting documentation must be submitted together with the 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 (T0610) This decision affirms the Agency’s final decision/action in part, but it also requires the Agency to continue its administrative processing of a portion of your complaint. 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 on both that portion of your complaint which the Commission has affirmed and that portion of the complaint which has been remanded for continued administrative processing. 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 your appeal with the Commission, until such time as the Agency issues its final decision on your complaint. 2022000907 10 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 (Z0815) If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may request permission from the court to proceed with the civil action without paying these fees or costs. Similarly, if you cannot afford an attorney to represent you in the civil action, you may request the court to appoint an attorney for you. You must submit the requests for waiver of court costs or appointment of an attorney directly to the court, not the Commission. The court has the sole discretion to grant or deny these types of requests. Such requests do not alter the time limits for filing a civil action (please read the paragraph titled Complainant’s Right to File a Civil Action for the specific time limits). FOR THE COMMISSION: Carlton M. Hadden’s signature Carlton M. Hadden, Director Office of Federal Operations March 29, 2023 Date