01A14848
03-22-2002
Sheryl L. Harrison, Complainant, v. John E. Potter, Postmaster General, United States Postal Service (Southeast Area), Agency.
Sheryl L. Harrison v. United States Postal Service
01A14848
3/22/02
.
Sheryl L. Harrison,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service
(Southeast Area),
Agency.
Appeal No. 01A14848
Agency No. 4G-770-1735-94
Hearing No. 330-95-8091X
DECISION
Complainant timely initiated an appeal from the agency's final decision
concerning her award of compensatory damages. The appeal is accepted
pursuant to 29 C.F.R. � 1614.405. For the following reasons, the
Commission MODIFIES the agency's final decision.
In her formal complaint, complainant alleges she was discriminated
against on the bases of sex (female) when her supervisor made unwelcome
requests for sexual favors on two occasions which complainant rejected;
and when she was placed on absence without official leave for seven
and one half hours and then issued a seven day suspension for failure
to follow instructions. The complaint was later amended to include
retaliation allegations raised during the investigation. Specifically,
complainant alleged that the supervisor made disparaging and loud
remarks concerning her physical appearance, insinuated she was a liar,
enforced dress policies against her that were not enforced on others,
and unnecessarily monitored her lunch schedule.
Following an investigation into the complaint, complainant requested a
hearing before an EEOC Administrative Judge (AJ). After the hearing,
the AJ issued a decision finding no sexual harassment, but did find
complainant established the agency retaliated against her based on prior
EEO activity. The agency rejected the AJ's finding of retaliation, and
complainant appealed to the Commission. See Sheryl Harrison v. United
States Postal Service, EEOC Appeal No. 01961272 (March 4, 1998),
recon. denied, EEOC Request No. 05980640 (June 24, 1999). Therein,
we reversed the agency's final decision and ordered that the agency
conduct a supplemetal investigation into complainant's entitlement to
compensatory damages. See id.
On August 3, 2001, the agency issued a final decision that awarded
complainant $6,500.00 in non-pecuniary compensatory damages, and $540.00
for pecuniary damages. The agency denied complainant's request for any
reimbursement for annual or sick leave that she could not establish
was causally related to the discrimination. Furthermore, the agency
denied complainant's request for attorney's fees as she failed to submit
adequate proof thereof. The agency also denied complainant's request
for lost income related to a detail which occurred subsequent to the
discrimination.
Complainant thereafter filed the instant appeal. Therein, she argued
that the agency failed to timely comply with the Commission's order
in her prior case, and as such, she should be entitled to interest on
her compensatory award. Moreover, complainant contends that the award
does not sufficiently compensate her for emotional distress suffered due
to the discrimination. Specifically, she contends that as a result of
the agency's failure to adequately remedy the discrimination, in March
1995, she sought a detail to another facility and chose not to bid on a
position. She states she suffered further retaliation when she was then
permanently assigned to the other facility by the Supervisor who was the
subject of her EEO complaint. Complainant alleges that she was assigned
a midnight shift and as a result, suffered emotional distress, marital
problems and was forced to take Family Medical Leave so that she could
care for her mother. She therefore requests additional non-pecuniary
damages, attorney's fees, and reimbursement of annual and sick leave
taken as a result of the agency's further retaliation.
Section 102(a) of the Civil Rights Act of 1991 (the CRA 1991), Stat. 1071,
Pub. L. No. 102-166,
codified as 42 U.S.C. 1981a, authorizes an award of compensatory damages
as part of the "make
whole" relief for intentional discrimination in violation of Title
VII, as amended. Section 1981a(b)(2) indicates that compensatory
damages do not include back pay, interest on back pay, or any other
type of equitable relief authorized by Title VII. Section 1981a(b)(3)
limits the total amount of compensatory damages that may be awarded
to each complaining party for future pecuniary losses, emotional pain,
suffering, inconvenience, mental anguish, loss of enjoyment of life, and
other non-pecuniary losses, according to the number of persons employed
by the respondent employer. The limit for an employer with more than
500 employees, such as the agency, is $300,000. 42 U.S.C. 1981a(b)(3)(D).
To receive an award of compensatory damages, a complainant must
demonstrate that he or she 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. Department
of the Navy, EEOC Appeal No. 01934157 (July 22, 1994) req. for
recon. den. EEOC Request No. 05940927 (December 11, 1995); Compensatory
and Punitive Damages Available Under Section 102 of the Civil Rights
Act of 1991, EEOC Notice No. 915.002 (July 14, 1992), at 11-12, 14.
Non-pecuniary losses are losses that are not subject to precise
quantification, including 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. 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. Non-pecuniary damages must be
limited to the sums necessary to compensate the injured party for actual
harm, even where the harm is intangible, see, Carter v. Duncan-Higgins,
Ltd., 727 F.2d 1225 (D.C. Cir. 1994), and should take into account the
severity of the harm and the length of time that the injured party has
suffered from the harm. Compensatory and Punitive Damages Available Under
Section 102 of the Civil Rights Act of 1991, EEOC Notice No. 915.002 at
14 (July 14, 1992). 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).
Several Commission decisions have awarded compensatory damages in
cases similar to appellant's. Benson v. Dept. of Agriculture, EEOC
Appeal No. 01952854 (June 27, 1996) ($5,000 non-pecuniary damages
where appellant was denied promotional opportunities on the bases of
race and reprisal, and consequently experienced stress, skin rashes,
withdrawal, and isolation); Lawrence v. U.S. Postal Service, EEOC Appeal
No. 01952288 (April 18, 1996) ($3,000 in non-pecuniary damages for sexual
harassment where appellant presented primarily nonmedical evidence that
she was irritable, experienced anxiety attacks, and was shunned by her
co-workers); Rountree v. Dept. of Agriculture, EEOC Appeal No. 01941906
(July 7, 1995) ($8,000 in non-pecuniary damages where appellant received
a low performance appraisal and was denied bonus pay because of race and
reprisal; medical evidence testimony was provided regarding appellant's
emotional distress, but the majority of appellant's emotional problems
were caused by factors other than the discrimination).
The agency awarded complainant $6,500 in non-pecuniary damages for
emotional distress she suffered as a result of the discrimination
including humiliation, embarrassment, anxiety, and anger. The agency
also noted that complainant was diagnosed with Major Depression by
a psychiatrist, and prescribed Zoloft. The agency acknowledged that
complainant was forced to stop attending her church since the Supervisor
was also a member of the same church. The agency also stated that it
examined complainant's psychiatrist's progress notes from February 13,
1995 through May 9, 1995. After a review of the evidence, the agency
found that $6,500 was an appropriate amount to compensate complainant
for her emotional distress.
Taking into account the evidence of non-pecuniary damages submitted
by complainant, the Commission finds that complainant is entitled to
non-pecuniary damages in the amount of $8,000.00. This amount takes
into account the evidence provided and the severity and duration of
the harm suffered, and is consistent with prior Commission precedent.
In particular, we note the record reveals complainant suffered from
tearfulness, anxiety, was diagnosed with Major Depression and prescribed
anti-depressants.
However, we deny complainant's request for a larger award for emotional
distress caused by a subsequent detail, marital problems, and need to
care for her mother. Despite complainant's contentions to the contrary,
we find much of complainant's cited emotional distress occurred after
the events in question, and was unrelated to the discrimination alleged
in the instant complaint. Indeed, complainant acknowledges that her
emotional distress improved with therapy by May 1995.
Nonetheless, we do agree that complainant is entitled to interest on
her compensatory damage award due to the agency's delay in paying proven
compensatory damages. See Chow v. Department of the Army, EEOC Request
No. 05991106 (February 13, 2001) (where the agency failed to issue a
decision for more than two years, the Commission found that complainant
was entitled to interest as of the date on which the agency was to have
issued its final decision addressing the issue of compensatory damages).
Our records indicate that on March 4, 1998, the Commission ordered the
agency to conduct a supplemental investigation regarding complainant's
claim for compensatory damages. See Sheryl Harrison v. United
States Postal Service, EEOC Appeal No. 01961272 (March 4, 1998).
The Commission's order was final on June 24, 1999, when the Commission
denied the agency's Request for Reconsideration. See Sheryl Harrison
v. United States Postal Service, EEOC Request No. 05980640 (June 24,
1999). Therein, the Commission further ordered the agency to complete
the supplemental investigation and issue a final decision within 60
calendar days of the date its decision became final. Accordingly,
given our findings herein, the agency was required to issue an award of
$8,000 of non-pecuniary compensatory damages on August 23, 1999 (i.e.,
60 days after the Commission's decision was final).
The record reveals the agency issued a final decision awarding complainant
$6,500 in non-pecuniary damages on August 3, 2001, and issued complainant
a check in the amount of $6,500 for non-pecuniary damages on September 4,
2001.<1> This award, issued two years late by the agency was inadequate.
Accordingly, we deem it appropriate to award complainant interest on
$8,000 from August 23, 1999 to September 4, 2001.
As for complainant's request for reimbursement for leave, we note that
a request for compensation for leave taken, due to emotional distress,
as a result of discrimination is a claim for equitable relief, not
compensatory damages. McGowan-Butler v. Department of Treasury,
EEOC Request No. 05940636 (September 9, 1994). The Commission
has previously held that restoration of leave taken for purposes of
avoiding or recovering from discriminatory conduct is a valid component
of equitable relief. See Whiting v. ACTION, EEOC Request No. 05900093
(June 27, 1990). In order to be entitled to leave restoration, the
employee must demonstrate a causal nexus between the discrimination and
need to take leave. Velez v. United States Postal Service, EEOC Appeal
No. 01902746 (November 16, 1990). Complainant presented sufficient
documentation supporting sixty-four hours related to the discrimination
in November 1994, and 104 hours of sick and annual leave in early 1995.
As such, the agency shall reimburse her for those absences as directed
below. Complainant' request for leave taken as a result of her mother's
injury is denied, as she failed to establish it was causally related to
the discrimination.
Based upon our review of the record, and for the foregoing reasons, it is
the decision of the Commission to MODIFY the agency's FAD. The agency
is directed to take remedial actions in accordance with this decision
and ORDER below.
ORDER (C0900)
The agency is ordered to take the following remedial action:
Within thirty (30) days of the date on which this decision becomes
final, the agency shall tender to complainant non-pecuniary damages
in the amount of $8,000.00, less any amounts of non-pecuniary damages
previously paid to complainant.
Within thirty (30) days of the date on which this decision becomes final,
the agency shall tender to complainant interest on $8,000 during the
period August 23, 1999 to September 4, 2001.
The agency shall reimburse complainant 168 hours of leave.
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 verifying
that the corrective action has been implemented.
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).
ATTORNEY'S FEES (H0900)
If complainant has been represented by an attorney (as defined by
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.
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
3/22/02
Date
1Complainant states in the record that she has not yet deposited the
check, as the amount was in dispute.