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

Equal Employment Opportunity Commission

Jul 2, 2015

01-2013-2417-0500 (E.E.O.C. Jul. 2, 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
(Great Lakes Area),
Agency.

Appeal No. 0120132417

Hearing No. 440-2009-00112X

Agency No. 4J-606-0005-09

DECISION
Complainant timely filed an appeal from an Agency final order dated June 13, 2013, adopting
an Equal Employment Opportunity Commission Administrative Judge’s (AJ) decision finding
retaliation and awarding compensatory damages. For the following reasons, we AFFIRM the
Agency’s order.

BACKGROUND
At the time of events giving rise to this complaint, Complainant was a former Letter Carrier
with the Merchandise Mart Station, located in Chicago, Illinois. On November 8, 2008,
Complainant filed an EEO complaint alleging that the Agency discriminated against her in
reprisal for prior protected EEO activity when on August 22, 2008, an employment consulting
firm representative, who was hired by Complainant, contacted Complainant’s former
supervisor (S1) who made the statements: “I really can’t recommend her, she [Complainant]
sues everyone;” “No, she would not be allowed to come back to the Post Office;” and “She
was let go.”

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 AJ. Complainant
timely requested a hearing. The first AJ assigned to that case issued summary judgment in the
Agency’s favor. Complainant appealed, and we remanded the case for a hearing. EEOC
Appeal No. 0120112242 (March 7, 2012). A second AJ held a hearing on April 9, 2013, and
issued a decision on April 19, 2013.
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AJ’S DECISION
In 2001, Complainant filed an EEO claim against her supervisor, S1. In February 2002,
Complainant resigned from her employment as part of an EEO settlement. Following
Complainant's resignation she began looking for work. She held four or five temporary
positions between 2002 and 2009, including two unpaid internships. Complainant testified that
she went on 50 interviews between 2002 and 2009.

In July 2005, Complainant enrolled in a master's degree program at Loyola Law School.
Complainant attended school part-time for two years and earned a Masters Degree in
jurisprudence. In June 2009, Complainant accepted a full-time position at the U.S. Social
Security Administration. For some period during Complainant's employment search she used
a resume which disclosed the Agency as one of her former employers. At some point she took
the Agency off her resume, but she is not sure when that happened. Complainant testified that
she may have taken the Agency off her resume in 2009, but that would be a guess.

Global Verification Services (GVS) is a consulting firm which specializes in professional
reference checking. In 2008, Complainant began to suspect that the Agency was giving her a
negative employment reference and she hired GVS to check her references. In August 2008, a
GVS representative (SL) called the Agency and spoke with S1. S1 told SL that Complainant
had been “let go.” S1 also stated that she would not rehire Complainant because "she sues
everyone."

Following credibility determinations, the AJ concluded that the preponderance of the evidence
supports the conclusion that Complainant’s former supervisor gave a poor reference in
retaliation for Complainant’s prior EEO activity.

Compensatory Damages

Non-Pecuniary Damages

The AJ noted that Complainant did not offer any evidence that any of her potential employers
contacted S1 for an employment reference. Instead, Complainant offered evidence that
between 2002 and 2009, she applied for many positions but was unable until 2009 to land
anything other than temporary employment. Complainant also established that her other past
employers gave her a neutral or a positive reference to prospective employers.

The AJ concluded that Complainant did not offer sufficient evidence that the Agency's
retaliatory reference caused her an inability to find work between 2002 and 2009. First,
Complainant testified that she did not know when her resume listed the Agency as a past
employer. Second, Complainant testified that she did not know whether any of her prospective
employers asked S1 for a reference. Third, the AJ noted that the record shows that
Complainant was able to get four or five temporary positions (two with federal agencies) and a
regular position with the Social Security Administration, during the relevant time-frame. The
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AJ notes that the fact that Complainant obtained positions during her work search undermines
her theory that S1 hindered her ability to obtain work by giving her a bad reference. Finally,
the AJ notes that the evidence suggests that S1 gave Complainant a bad reference only after SL
questioned her at some length. The AJ explained that SL’s persistent questioning of S1 does
not excuse S1's act of reprisal, but it suggested that if one of Complainant's prospective
employers called S1, that employer may have been less aggressive in pursuit of a reference.

The AJ further concludes that while Complainant failed to show that the Agency’s act of
retaliation caused her lack of employment, she did establish that she suffered some emotional
distress because of the retaliation. Specifically, the AJ notes that Complainant offered
evidence that she suffered emotional distress once she learned that S1 had refused to give her a
good reference because she had previously filed a complaint against the Agency. Accordingly,
the AJ awarded Complainant $10,000 in emotional distress damages.

The AJ further explained that Complainant's emotional distress award was limited because: (1)
she failed to show that her lack of employment resulted from S1’s retaliatory reference; (2)
most of her emotional distress evidence emphasized her distress from lack of continuous
employment rather than her distress from learning of the retaliatory reference; (3) she failed to
differentiate between the stress and anxiety she felt while working at the Agency and her
subsequent emotional distress; and (4) she had obtained secure full-time employment by the
time she learned that S1 had given her a negative reference.

Pecuniary Damages

The AJ awarded Complainant out-of-pocket costs that were supported by documentary
evidence in the record. Complainant testified that she incurred an additional $4,000 since
April 2012 in pursuing this case, but she failed to offer any documents to substantiate the
alleged costs. Accordingly, the AJ denied those alleged costs. The AJ also denied
Complainant’s claim for reimbursement of medical bills associated with treatment of her
fibromyalgia which the record does not show was caused or aggravated by the unlawful
retaliation.

Other Remedies

The AJ also ordered training and the posting of a notice of retaliation.

Attorney's Fees

Lastly, the AJ denied Complainant reimbursement for the time she spent preparing this case.
The AJ noted that while Complainant has some legal training, she is not a lawyer, and has not
cited any EEOC precedent to the effect that a Complainant may recover legal fees for her own
time.

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The Agency subsequently issued a final order adopting the AJ’s finding that Complainant
proved that the Agency subjected her to retaliation as alleged. On appeal, Complainant only
seeks an increase in the compensatory damages award.

ANALYSIS AND FINDINGS
The Commission notes that damage awards for emotional harm are difficult to determine and
there are no definitive rules governing the amount to be awarded in given cases. 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).
The award should take into account the severity and duration of the harm. In determining non-
pecuniary compensatory damages, the Commission strives to make damage awards for
emotional harm consistent with awards in similar cases. In this case, the AJ considered the
entire record and evidence of emotional distress, but found minimal evidence to connect most
of the Complainant’s emotional distress to the retaliatory actions of S1. Upon review of the
record, we find nothing in the record sufficient to increase the AJ’s non-pecuniary damages
award.

In addition, the AJ awarded pecuniary damages that were identified in hearing exhibits L-4
through L-14, but did not specify the amount in her decision. We note that these hearing
exhibits are not part of the record provided on appeal, and efforts to locate the hearing exhibits
from the Agency were not successful. Upon review of the record we find sufficient
documentary evidence in support of $646.20 in pecuniary damages, which includes
professional reference checks/reports and postage charges. We note that Complainant also
asserts that she incurred faxing and copying costs totaling $504.00. We do not find
documentary evidence in the record to support such out-of-pocket costs. However, since the
Agency is not contesting the AJ’s unspecified pecuniary damages award, we conclude that the
total pecuniary damage award should be $1,150.20. We also affirm the Agency’s denial of
attorneys’ fees because Complainant was not represented by an attorney.

ORDER
Within one-hundred and twenty (120) days from the date this decision becomes final, the
Agency is ORDERED to take the following remedial action to the extent it has not yet done so:

1. The Agency shall pay Complainant $10,000.00 in non-pecuniary damages;

2. The Agency shall pay Complainant $1,150.20 in pecuniary damages.

3. The Agency shall provide training on retaliation for management employees at the
Merchandise Mart Station. The training shall be conducted by a qualified trainer
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familiar with EEO law. The training should include education regarding the fact that
the employment discrimination laws protect former employees from retaliatory
employment references.

POSTING ORDER
The Agency is ordered to post at its Post Office in Galax, Virginia, copies of the attached
notice. Copies of the notice, after being signed by the Agency's duly authorized
representative, shall be posted both in hard copy and electronic format by the Agency within
30 calendar days of the date this decision becomes final, and shall remain posted for 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 10 calendar days of the expiration of
the posting period.
(GO914)
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:

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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.

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
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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
July 2, 2015