Complainant,v.Megan J. Brennan, Postmaster General, United States Postal Service (Capital Metro Area), Agency.

Equal Employment Opportunity Commission

Feb 25, 2015

0120123393 (E.E.O.C. Feb. 25, 2015)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013

Complainant,

v.

Megan J. Brennan,
Postmaster General,
United States Postal Service
(Capital Metro Area),
Agency.

Appeal No. 0120123393

Agency No. 1H301001209

DECISION
On September 6, 2012, Complainant filed an appeal from the Agency’s August 3, 2012 final
decision concerning her entitlement to non-pecuniary damages resulting from a violation of
Title VII of the Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. § 2000e et seq.
The Commission deems the appeal timely and accepts it for de novo review pursuant to 29
C.F.R. § 1614.405(a). For the following reasons, the Commission AFFIRMS the Agency’s
final decision.

BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Mail Processor at
the Agency’s Processing and Distribution Center in Atlanta, Georgia. On February 28, 2009,
Complainant filed an EEO complaint alleging that she was harassed on the basis of sex
(female) when a co-worker hugged and kissed her.

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. When Complainant did not request a hearing within the time frame
provided in 29 C.F.R. § 1614.108(f), the Agency issued a final decision pursuant to 29 C.F.R.
§ 1614.110(b). The decision concluded that Complainant did not prove that the Agency
subjected her to discrimination as alleged. Complainant appealed.

On appeal, the Commission found that Complainant had proven she had been subjected to
hostile workplace harassment. The Commission also concluded that the Agency was liable for
the harassment because it failed to take prompt corrective action. The matter was remanded to
the Agency for a supplemental investigation of Complainant’s entitlement to compensatory
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damages and other relief. Complainant v. United States Postal Serv.

, EEOC Appeal No.
0120110311 (January 31, 2012).
On remand the Agency conducted a supplemental investigation and, based on the results of the
investigation, concluded that Complainant was entitled to an award of $529.50 in pecuniary
compensatory damages and $15,000.00 in non-pecuniary compensatory damages.
Complainant now appeals the award of non-pecuniary compensatory damages, requesting that
the Commission increase the amount of the award to $60,000.00.

ANALYSIS AND FINDINGS
Non-pecuniary damages are available to compensate the injured party for actual harm, even
where the harm is intangible. Carter v. Duncan-Higgins, Ltd., 727 F.2d 1225 (D.C. Cir.
1984). Emotional harm will not be presumed simply because the complainant is a victim of
discrimination. The existence, nature, and severity of emotional harm must be proved. The
method for computing non-pecuniary damages should typically be based on a consideration of
the severity and duration of harm. Carpenter v. Department of Agriculture, EEOC Appeal No.
01945652 (July 17, 1995). We note that for a proper award of non-pecuniary damages, 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 Ward-Jenicins v. Department of the Interior, EEOC Appeal No. 01961483 (March
4, 1999) (citing Cygaar v. City of Chicago

, 865 F.2d 827, 848 (7th Cir. 1989)).
In this case, Complainant argues that she is entitled to an increased award of damages
primarily because of the extended duration of the harm to which she was subjected. In the
Agency’s analysis, the harassment occurred over the period from October 26, 2008 to
November 4, 2008 during which, on one occasion, the harasser kissed Complainant and, on
another occasion, the harasser hugged Complainant. In contrast, according to Complainant,
the consequences of the harassing behavior extended over a period of more than three years
during which the harasser, although no longer working closely with Complainant, was
permitted to continue to work in the Atlanta P&DC, causing Complainant to encounter him
periodically when she was on duty. According to Complainant, these encounters exacerbated
the damage caused by the original harassing incidents.

The authorities upon which Complainant relies do not support the conclusion that an increased
award of damages is called for in this case. Most of the cited authorities involved harassment
that extended over many months or years and involved multiple incidents of harassing
behavior. For example, in Holmes v. Department of Veterans Affairs, EEOC Appeal No.
0120082790 (September 29, 2008), cited by Complainant, the sexually harassing behavior
began in 1998 and continued until 2004. The Commission found that the resulting emotional
harm called for an award of non-pecuniary damages in the amount of $65,000.00. Similarly,
Hibbert v. Department of Justice, EEOC Appeal No. 0720070036 (October 25, 2007),
involved a pattern of racial harassment extending over a 5-year period which, the Commission
found, supported an award of $60,000.00 in non-pecuniary damages. In neither case did the
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Commission augment the award, as Complainant urges here, because the complainant was
continually reminded of the harassment by the presence of the harasser in the workplace. For
that reason, the authorities relied on by Complainant are inapposite.

The Agency’s determination that an award of $15,000.00 under these circumstances fully
compensates Complainant is consistent with the Commission authorities cited by the Agency.

Therefore, the amount of the award of non-pecuniary damages will not be modified.

CONCLUSION
Based on a thorough review of the record, we AFFIRM the Agency’s final decision.

ORDER
Within one hundred twenty (120) calendar days of the date this decision becomes final and to
the extent that it has not already done so, the Agency shall pay Complainant pecuniary
compensatory damages in the amount of $529.50 and non-pecuniary compensatory damages in
the amount of $15,000.00.

IMPLEMENTATION OF THE COMMISSION'S DECISION

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.
(K0610)
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.

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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

(S0610)
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.

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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

Date
February 25, 2015