0720090037
03-10-2010
Toni Champion, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, (Pacific Area), Agency.
Toni Champion,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
(Pacific Area),
Agency.
Appeal No. 0720090037
Hearing No. 480-2007-00240X
Agency No. 1F924001907
DECISION
Following its May 19, 2009 final order, the agency filed a timely
appeal which the Commission accepts pursuant to 29 C.F.R. � 1614.405(a).
On appeal, the agency implemented an EEOC Administrative Judge's (AJ)
finding of discrimination in violation of Title VII of the Civil Rights
Act of 1964 (Title VII), as amended, 42 U.S.C. � 2000e et seq., and
Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act),
as amended, 29 U.S.C. � 791 et seq. However, the agency requests that
the Commission affirm its rejection of the compensatory damages award
ordered by the AJ.
ISSUES PRESENTED
The issue presented is whether the agency properly rejected the AJ's
decision to award complainant $125,000 in compensatory damages.
BACKGROUND
At the time of events giving rise to this complaint, complainant was
assigned to the maintenance department at the agency's Processing and
Distribution Center facility in San Bernardino, California. Complainant
had transferred from another agency facility in June 2005. At the time of
her transfer, the evidence establishes that a "large packet" documenting
her prior and ongoing EEO activity, as well as grievance issues,
was forwarded to the San Bernardino Manager, Maintenance Operations
(MMO). The record also establishes that in August 2005, shortly
after her transfer to San Bernardino, complainant injured her right
knee while performing her job, which resulted in an accepted workers'
compensation claim. As a result, in September 2005, she was provided with
a limited duty job assignment in the San Bernardino maintenance department
purporting to provide her work within her medical restrictions.
On October 17, 2006, complainant filed an EEO complaint alleging that
she had been subjected to discrimination on the bases of race (Black),
disability (right knee injury), and reprisal for prior protected EEO
activity under Title VII and the Rehabilitation Act, when:
1. From June 10, 2006 and continuing, she was subjected to disparate
treatment and harassment. In addition, complainant asserted that the
agency offered her a limited duty position that placed her in an unsafe
work environment.
2. From April 24, 2007 and continuing, she was subjected to
harassment due to her disability and/or her prior protected activity.
At the conclusion of the investigation, complainant was provided 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 May 13, 2008 and June
20, 2008. Subsequently, the AJ issued a decision on March 31, 2009.
The AJ found that complainant did not prove that the agency failed to
provide her with a reasonable accommodation with its original limited duty
offer. However, the AJ did find that management's actions from May 30,
2006 through June 13, 2007, amounted to unlawful harassment sufficient
to create a discriminatory hostile work environment. The AJ further
determined that these actions taken by MMO and the Acting Supervisor (S1)
were based on complainant's disability and her prior protected activities
(prior EEO complaints, as well as exercising her right to be provided
reasonable accommodation). Finally, the AJ determined that the agency
failed to meet its burden of establishing an affirmative defense that it
exercised reasonable care to prevent and promptly correct the harassment
caused by S1 and MMO.
In a lengthy decision, the AJ described in detail the actions taken by
S1 and MMO that the AJ concluded amounted to discriminatory harassment
sufficient to create a hostile work environment:
(1) S1 routinely asking for updated medical documentation from
complainant, and when she would request leave to attend physical therapy
or to obtain the required doctor's appointments to provide the updates,
S1 would give her a difficult time, which would involve multiple and
unnecessary interactions between complainant and S1 before complainant
could complete a request and obtain approval for leave.
(2) S1 gave Complainant direct orders to have her medical provider,
Kaiser, complete postal forms CA-17s to provide medical documentation
even after learning that Kaiser used its own form called the "DMI"
and that the Postal Service accepted that form in lieu of the CA-I7.
S1 did not explain the reasons for these direct orders.
(3) S1 loudly discussed complainant's medical condition and medical
restrictions in the workplace, violating complainant's right to privacy
in confidential medical information.
(4) S1 questioned and chided complainant about taking leave before and/or
after her scheduled days off even though complainant was using the leave
to attend physical therapy and/or attend doctor's visits to obtain the
requested updates on her medical restrictions.
(5) S1 would request further leave clarification on any leave complainant
requested even when the purpose of the leave was to attend EEOC
pre-hearing conferences or hearings.
(6) S1 and MMO conducted an investigative interview into why complainant,
who had significant restrictions on standing and walking, requested a
chair to sit in while attending a 30-
minute safety briefing in which a film was shown. Investigative interviews
are conducted when management is considering issuing discipline pursuant
to the terms of the applicable Collective Bargaining Agreement. Thus,
it was reasonable to infer that S1 and MMO either: (a) intended to issue
complainant discipline for requesting a chair or (b) intended to harass
and intimidate her for doing so.
(7) S1 questioned complainant's use of a cane in the workplace for
balance because her doctor apparently did not specifically list use of
a cane as absolutely required or necessary, even though it was clear
that complainant had a serious knee injury and severe limitations on
standing and walking, and even though complainant had been safely using
a cane to ambulate in the workplace.
(8) S1 conducted a pre-disciplinary investigative interview after
she called complainant twice in one day about complainant's latest
CA-17/DMI, and after complainant told S1 that she had sent it to the
Injury Compensation Specialist and was not required to send it to S1.
S1 unreasonably ordered complainant to go back to her doctor and get
another copy.
(9) During the investigative interview, complainant felt so threatened by
S1's statement that complainant's behavior was not going to be tolerated,
that she had a panic attack at work that was so severe it required
an emergency room visit. Complainant was still to provide medical
documentation excusing her absence from work. S1 still continued to
pursue obtaining information about complainant's knee when complainant's
union representative provided the
panic attack documentation.
(10) After complainant complained to MMO about S1's treatment of her,
he conducted an "investigation" which resulted in his counseling S1 on
how to deal with "problematic employees" like Complainant. MMO also
admitted that he intentionally destroyed his investigative report into
complainant's claim about S1's harassing treatment.
(11) MMO believed complainant was a "problematic employee" because she
continued to have "disagreements as far as CA-17s and limited duty job
offers" and because he believed that complainant was "unreasonable in
her behavior and demands," and she was "aggressive and uncooperative"
concerning her claims for reasonable accommodation.
(12) MMO and S1 tried to intimidate complainant into accepting new limited
duty job offers because they asserted that her medical restrictions had
improved, but yet when they drafted the September 12, 2006 offer they
intentionally did not allow for complainant's use of a cane to perform
the prescribed duties despite Complainant clearly communicating to S1
that she needed the cane to ambulate in the workplace for stability.
(13) After complainant rejected the first revised limited duty job offer
and stated why she felt it was unsafe to perform the cleaning duties
requested, she was offered a second limited duty job that required her
to do the cleaning duties with a cane in one hand.
(14) After complainant rejected the second offer as violating her medical
restrictions, all the core duties complainant was then-performing were
taken out of the position description and complainant was left with
mostly cleaning duties which the AJ found she could perform only with
great difficulty and risk of injury.
(15) S1 complainant over not signing the observation of work practices
form when complainant disagreed with S1's assessment because she had not
performed the duties described, and reasonably believed she was being
"set up";
(16) MMO appointed another management official to conduct an investigative
interview with complainant because she did not immediately report to
S1 that a coworker allegedly blocked her path and called her a "nigger"
under his breath as she walked by. The AJ found that the investigation
was structured so that it looked like complainant was the individual
who had committed a transgression and was set up with the pre-determined
task of determining the appropriate discipline for complainant.
(17) MMO and S1 refused to sign for certified mail sent by complainant
documenting her absence from work from May 15, 2007 onward, and then
charged Complainant as being AWOL beginning on June 4, 2007, because
they said complainant never submitted required documentation to support
her absence.
Following the finding of ongoing discriminatory harassment, the AJ
determined that complainant was entitled to $125,000 in non-pecuniary
damages. The AJ noted that complainant did not request a specific
amount in non-pecuniary damages but deferred to the AJ's judgment.1
Complainant's evidence of her injury and its causation consisted of her
testimony at the hearing. Complainant averred that over the course of
the harassment, she was unable to sleep, was required to take sleeping
medication, experienced nightmares, was diagnosed with depression,
became uninterested in doing the things she used to do, experienced pain
in her back, severe stress, and being forced to lie down in order to
relieve the back pain. Complainant also testified that because of her
sleeping issues, stress and depression; she had been prescribed several
medications and was under the care of a psychiatrist and a psychologist.
Complainant indicated that she had been diagnosed with major depressive
disorder, anxiety disorder, and panic disorder.
The AJ found that due to the stress and harassment caused by S1 and the
MMO, complainant's psychologist placed complainant off work effective May
18, 2007. The AJ noted that, based on the record, complainant had been
negatively impacted by the harassment for more than 2 years, from June
2006 through the date of the hearing in June 2008 and beyond. Based on
the totality of the circumstances, the AJ determined that complainant
was entitled to $125,000 in non-pecuniary damages. The AJ noted that
this amount was not "monstrously excessive" and was consistent with the
Commission's previous decisions in similar cases. The AJ also ordered
the agency to take other corrective action.
FINAL ORDER AND AGENCY'S CONTENTIONS ON APPEAL
The agency subsequently issued a final order affirming the AJ's
conclusion that complainant had proven that she had been subjected to
harassment based on her disability and her prior protected activity
that was sufficiently severe or pervasive to establish a discriminatory
hostile work environment. However, the agency argued that the AJ's
award of $125,000 in compensatory damages was "grossly excessive" and
far out of line with compensatory damages awards in other cases, citing
to several older court cases involving sexual harassment, In sum, the
agency requested that no compensatory damages be awarded to complainant
in this case.
In response to the agency's appeal, complainant requested that the
Commission affirm the AJ's determination that she is entitled to
$125,000.
ANALYSIS AND FINDINGS
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. 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).
The Commission notes that the agency implemented the AJ's findings
of discrimination. The Commission affirms the agency's final order
adopting those findings by the AJ. Therefore, the sole issue before the
Commission on appeal is the agency's decision to reject the AJ's award
of compensatory damages.
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. 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.
The Commission notes that, in its brief submitted on appeal, the agency
makes no real argument contesting the AJ's conclusion that complainant
established a causal connection between the discriminatory harassment
and the harm caused, which as described by the AJ included a diagnosis
of major depressive disorder, anxiety disorder, and panic disorder that
has required psychiatric treatment, including an ongoing course of a
variety of medications, as well as a number of physical symptoms such
as persistent back pain. Instead, the agency sought to minimize the
events found to be part of the pattern of discriminatory harassment,
in an apparent attempt to argue that the conduct on the part of the two
agency managers did not warrant the damages award.
Taking into account the evidence of non-pecuniary damages submitted
by the complainant, including the fact that the harassment was ongoing
for over two years and resulted in a diagnosis of a number of serious
psychiatric disorders, we find the AJ's award of $125,000 to be
appropriate. This amount takes into account the severity of the harm
suffered, and is consistent with prior Commission precedent. See Ellis
v. Department of Defense, EEOC Appeal No. 01A13314 (April 29, 2003)
(awarding $125,000 in a disability and sexual harassment where agency's
misconduct exacerbated complainant's fibromyalgia, which caused intense
physical and emotional pain. Complainant also experienced nightmares,
fear, financial problems, mental anguish, loss of enjoyment of life,
exhaustion, and difficulty concentrating for over 18 months.); Bohac
v. Department of Agriculture, EEOC Appeal No. 07A00030 (September 29,
2003), request for reconsid. denied EEOC Request No. 05A40111 (January
5, 2004) (awarding $110,000 in compensatory damages in a harassment
case where complainant suffered several years of depression, headaches,
muscle spasms, and problems at home with her family, as well as damage to
her professional reputation); Sanford v. United States Postal Serv.,
EEOC Appeal No. 01A31818 (May 13, 2004). (awarding $115,000 in a
harassment case where complainant diagnosed with post traumatic stress
disorder, and experienced a number of physical and emotional symptoms,
including anxiety attacks. Complainant stated that she feels lost and
the harassment took control of her life. She was moody, irritable,
and unable to participate in social events or do normal chores.)
CONCLUSION
Based on a thorough review of the record and the contentions on appeal,
including those not specifically addressed herein, we AFFIRM that
portion of the agency's final order implementing the AJ's finding of
disability and retaliatory harassment. However, the Commission REVERSES
the agency's rejection of the AJ's award of $125,000 in non-pecuniary
compensatory damages. As such, we REMAND the matter in accordance with
the ORDER below.
ORDER
The agency is ordered to take the following remedial action:
1. The Agency shall offer complainant reinstatement into her former
Limited Duty Job Offer position, or one equal to it, ensuring that the
duties are in compliance with her current medical restrictions and she
shall be provided with reasonable accommodation as needed. The agency
shall find a work location where complainant does not have to work
for either of the responsible management officials (S1 and/or MMO).
If complainant accepts the offer, she shall have up to three month before
she needs to report to duty.
2. The agency shall determine the appropriate amount of back pay
beginning May 15, 2007, to the date complainant either returns to work
with the agency or rejects the agency job offer, with interest, and other
benefits due complainant, pursuant to 29 C.F.R. � 1614.501, no later than
sixty (60) calendar days after the date this decision becomes final.
The 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 the complainant for the undisputed amount within sixty (60) calendar
days of the date the agency determines the amount it believes to be due.
The 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 restore any sick leave and annual leave and reimburse
Complainant for any Leave Without Pay used as the result of the unlawful
discriminatory harassment discussed. Complainant shall present all
documentation to support this restoration order as soon as possible so
that the Agency can have full compliance.
4. The agency shall pay complainant $125,000 in non-pecuniary damages.
5. The agency shall purge the June 2007 Absence Without Official Leave
charge from complainant's personnel file and reimburse her for any pay
denied during this period of time.
6. The agency is directed to conduct a minimum of 40 hours of EEO
training for the management officials responsible for the discriminatory
harassment, with a special focus on disability discrimination and
reprisal-based harassment.
7. The agency shall consider taking disciplinary action against S1 and
MMO. 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.
8. The agency shall post the attached notice as ORDERED below.
9. 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 backpay and other benefits due complainant,
including evidence that the corrective action has been implemented.
XII. The agency shall complete all of the above actions within ninety
(90) calendar days from the date on which the decision becomes final.
POSTING ORDER (G0900)
The agency is ordered to post at its San Bernardino Processing and
Distribution Center 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 (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.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1208)
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 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 (T0408)
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.
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 (Z1008)
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
March 10, 2010
__________________
Date
1 It is noted that complainant did not make a request for pecuniary
damages nor did she provide the AJ with documentation to support
pecuniary damages. Therefore, the AJ did not award complainant any
pecuniary damages.
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0720090037
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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