Complainant,v.Patrick R. Donahoe, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionJul 24, 2014
0120141347 (E.E.O.C. Jul. 24, 2014)

0120141347

07-24-2014

Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service, Agency.


Complainant,

v.

Patrick R. Donahoe,

Postmaster General,

United States Postal Service,

Agency.

Appeal No. 0120141347

Agency No. 1K-271-0022-09

DECISION

On February 10, 2014, Complainant timely filed an appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from a final Agency decision (FAD) dated January 21, 2014, concerning the EEOC's order in Bosley v. United States Postal Service, EEOC Appeal No. 0120120510 (Aug. 20, 2013) which directed the Agency to process her impending request for attorney fees and issue a FAD on her entitlement to compensatory damages for a violation Title VII of the Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. � 2000e et seq. The Commission accepts the appeal pursuant to 29 C.F.R. � 1614.405(a).

BACKGROUND

At the time of events giving rise to her complaint, Complainant worked as a limited duty employee assigned to the Processing and Distribution Center (P&DC) in Greensboro, North Carolina.

On December 30, 2009, Complainant filed an equal employment opportunity (EEO) complaint, as amended. After an investigation, and hearing thereon before an EEOC Administrative Judge finding no discrimination, Complainant filed an appeal.

In EEOC Appeal No. 0120120510, the EEOC found that Complainant was discriminated against based on sex (female) when she was sexually harassed for a period of five to six months, which ended when she was assigned to a new area in April 2010. Specifically, Co-worker G wore his shorts in a manner that made his penis prominently outlined, sometimes visible (because he wore no underwear), and sometimes with the appearance of being erect. Complainant was subjected to viewing this, which was unwelcome. She sat at a table working with two other women, who were also subject to viewing Co-worker G.

We found that we need not address Complainant's other alleged bases of discrimination - race, color, disability, age, and reprisal for prior EEO activity because it would not entitle her to any greater relief. The EEOC found no discrimination on Complainant's remaining issues - receiving a letter from Injury Compensation late (September 2009) and being denied a job within her medical restrictions (since by July 2008).

In response to questions about the damages she incurred as a result of all the alleged discriminatory actions in her complaint, Complainant wrote in her February 2010 affidavit in part that she twice saw an Employee Assistance Counselor (EAP) in 2009, and did not have further counseling.

Referring to the sexual harassment, in her April 2010 affidavit, Complainant wrote that she felt intimidated, repulsed, anxious, fearful for her life; and subjugated, frustrated, betrayed, disrespected, and hopeless because management did not stop the harassment. Complainant wrote on this claim that she was unable to sleep well, her nerves were on edge, and she was given prescriptions for medicine for depression and to help her sleep.

At the August 2011 hearing, Complainant reiterated some of the above. In response to a question geared to all her claims, she repeated a number of the above effects, and added that she went to the emergency room with an anxiety attack in March 2010, had heart palpitations, her blood pressure problem was aggravated, and she was prescribed heart medicine. She testified that after her anxiety attack, she started seeing a psychologist.

Complainant retired in January 2013.

During the supplemental investigation on damages, in October 2013, Complainant submitted an affidavit. On appeal, she submits a "letter of demand" where she elaborated in much greater detail her contentions about nonpecuniary damages. While a certificate of mailing indicates Complainant mailed the letter of demand in October 2013 to the person who represented the Agency at the hearing, the status of the representative during the supplemental investigation is unclear from the record, and he does not represent the Agency on appeal. Complainant did not mail the letter of demand in October 2013 to the Agency's National EEO Investigative Service Office which conducted the supplemental investigation on damages.

In the above papers, Complainant described the emotional pain and suffering caused by the Agency's Injury Compensation losing her paperwork, her job being taken away without warning [on April 26, 2010] and being sent to a room with nothing to do for months while wondering whether she would have a job, her constant tug of war to have work within her restrictions, being humiliated when she was assigned as a custodian which she described as a very demanding assignment outside her medical restrictions which caused co-workers to be upset with her since she did it while receiving higher clerk pay, management trying to get rid of all injured employees, her trying to stay employed, the way the Agency processed her EEO complaints, and the and loss of consortium with her husband because she had to spend so much time prosecuting her EEO case. Regarding the sexual harassment by Co-worker G, Complainant contended that it continued or resumed after she was moved in April 2010 through her retirement, and that co-workers joked about her harassment case. She also contended that she was monitored by management when she worked at the table.

Complainant wrote she suffered a lot of emotional pain when Injury Compensation lost her paperwork. On her job being taken away in April 2010 and being sent to a room with no work to do, Complainant described being distressed, frustrated, angry, her nerves being on edge, and being reduced to tears. Regarding being assigned custodial work and management trying to get rid of all injured employees, Complainant wrote she constantly worried about staying employed, was humiliated, suffered lots of stress, was upset, made to feel dispensable, and suffered a tremendous blow to her self-esteem. Complainant, without specifically identifying the work triggers, also described depression, isolating herself, trouble sleeping, anxiety, and nightmares concerning problems at work. She wrote that she retired because she could not bear the degradation and humiliation caused by management's hostile and arrogant practices, and submitted a statement from a co-worker that Complainant was forced to take an early retirement because management said it did not have any tasks she could do within her medical limitations.

Concerning the sexual harassment and action not being taken to stop it, Complainant wrote, in addition to what she already linked thereto, that she felt humiliated, many times got nauseated just seeing or hearing of Co-worker G, was stressed out by being reminded of him when she worked on her case, was very emotional when the AJ ruled against her because it reminded her of bad memories of Co-worker G, had an anxiety attack in March 2010, heart palpitations, saw a cardiologist, suffered increased blood pressure, started subconsciously grinding her teeth in 2009, resulting in a tooth breaking off and dental work in August 2011, seeing a psychologist, and being embarrassed talking about the sexual harassment with her health care professionals.

Complainant requested $360,000 in nonpecuniary damages, and payment of $201,250 for time she spent prosecuting this case -- 1150 hours at $175 an hour, which she mistakenly categorized as part of "non-pecuniary damages," adding up to $561,250.

Complainant requested $14,571 in pecuniary damages and costs for prosecuting her complaint. The pecuniary damages were comprised of medical bills, drugs, mileage for medical treatment, and future medical expense. The costs were comprised of mileage for driving to her representative and the post office to mail letters, and office supplies and postage. Complainant also requested reimbursement for gasoline.

In its FAD, the Agency awarded Complainant $6,000 in nonpecuniary damages, and $237.07 in costs. It denied payment of all pecuniary damages.

On appeal, Complainant argues that the Agency did not timely issue its FAD, and for this reason it has no effect and a default judgment should be entered in her favor for the full monetary remedy she requested. She also makes arguments in support of the monetary remedy she requests.

In opposition to the appeal, the Agency's National EEO Investigative Services Office contends that Complainant did not submit her letter of demand until filing her appeal, and argues that it is an embellishment of what she previously submitted, and less credible and reliable than information she submitted closer in time to the alleged discrimination. The Agency addresses the merits of the letter, and also argues that to the extent it constitutes new evidence on appeal, it should not be considered. Regarding not timely issuing the FAD, the Agency argues it made a good faith effort to timely do so, and Complainant has not described how she was harmed by the slight delay. The Agency argues that its FAD should be affirmed.

ANALYSIS AND FINDINGS

We decline to sanction the Agency for failure to timely issue its FAD by awarding Complainant all the compensatory damages and costs she requested. Such a sanction would not be appropriate. See generally, Ferebee v. Department of Homeland Security (U.S. Coast Guard), EEOC Appeal No. 0720100039 (April 24, 2012). Moreover the Agency substantially complied with the EEOC's order in Appeal No. 0120120510 to issue its FAD no later than 60 calendar days after Complainant submitted her evidence on compensatory damages. At the earliest, Complainant submitted her evidence thereon on October 3, 2013, the date of her supplemental affidavit on compensatory damages. The Agency issued its FAD on January 21, 2014. This is a small delay.

Next, we exercise our discretion to consider Complainant's letter of demand. We do so because the Agency concedes that it received it on appeal, had the opportunity to address it on the merits, and did so.

Compensatory damages may be awarded for past pecuniary losses, future pecuniary losses, and non-pecuniary losses that are directly or proximately caused by the agency's discriminatory conduct. Compensatory and Punitive Damages Available Under Section 102 of the Civil Rights Act of 1991 (July 14, 1992) (available at www.eeoc.gov.) Non-pecuniary losses are losses that are not subject to precise quantification including emotional pain and injury to character, professional standing, and reputation. Compensatory damages are awarded to compensate for losses or suffering inflicted due to discrimination. Damages for past pecuniary damages will not normally be sought without documentation such as receipts, records, bills, cancelled checks, or confirmation by other individuals of actual losses and expenses. Id.

Non-pecuniary damages

Here, the Agency's conduct which was found to be discriminatory was a co-worker of Complainant wearing his shorts in a manner that enabled his penis to be on display for five to six months ending in April 2010. As argued by the Agency, a lot of Complainant's claimed pain and suffering occurred for reasons which are not part of this finding. Most saliently, this includes Complainant's job being taken away in April 2010, being assigned as a custodian, and allegedly: not being assigned work within her medical restrictions, the Agency's effort to get rid of her, and her constant struggle to stay employed which culminated in her retirement when there were no tasks given to her within her medical limitations. Other matters which were not part of the discrimination finding include the alleged sexual harassment which continued or resumed after April 2010 to Complainant's retirement (in EEOC Appeal No. 0120120510 we found the harassment ended in April 2010), and people joking about Complainant's case.

Further, Complainant's claim for monetary remedy includes things which are patently incredible. For example, she contends that she worked on her case for 1150 hours. This constitutes her working on her case full time (40 hours a week) over six months and two weeks, which in no way comports with the complexity of her case, even for a pro se Complainant. We take this into account in weighing Complainant's statements regarding her entitlement to damages.

In her April 2010 affidavit, Complainant contended that Co-worker G made her fearful for her life. She did not contend that he threatened her, but did testify she heard he was angry about being reported, and afterwards would glare at them (the women who sat at the table). While we did not find discrimination regarding Co-worker G making any threats, his repeatedly coming into visual contact with the women who worked at the table in such a way that his penis was on display could fairly be perceived as intimidating.

The Agency, citing case law, found that a complainant cannot recover compensatory damages for emotional distress allegedly endured as a result of participating in the EEO complaint process. While this is true, painful harmful memories of the sexual harassment, no matter the trigger, are proximately related to the discrimination, and hence are compensable.

While Complainant contends that she saw healthcare professionals as a result of the sexual harassment, she submits no medical documentation from them indicating this was the reason therefore. But we still credit Complainant's statement that as a result of the sexual harassment she had anxiety attacks for which she sought treatment.

We find that the Agency's award of $6,000 in non-pecuniary damages was correct. This takes into account that as a result of the sexual harassment which continued for five or six months, Complainant felt humiliated, repulsed, anxious, betrayed, disrespected, fearful, had an anxiety attack, increased blood pressure, got nauseated when she was reminded about the perpetrator, saw a mental health counselor and psychologist, and was prescribed medication for depression and to help her sleep. See Williams v. Department of Veterans Affairs, EEOC Appeal No. 0120123334 (Aug. 15, 2013)(on one day the EEO Program Manager, who was not the complainant's supervisor, made sexually offensive comments to him, grabbled his buttock, lunged at him and said she wanted to dry hump him, and the next day his supervisor joked that has ass and butt were alright, and laughed. As a result, he took some sick leave, was upset and embarrassed, lost sleep, saw a psychologist, took medication for depression, lost his supervisor's trust, and people at work distanced themselves from him. Awarded $6,500 in non-pecuniary damages); Towns v. United States Postal Service, EEOC Appeal No. 0120112091 (July 11, 2012)(in a case where a manager harassed complainant for three weeks by subjecting her to close scrutiny, criticized her work, screamed at her, labeled her a disruptive person and refused her entry into the building, all making co-workers afraid to associate with her, she suffered weight loss, had aggravated colinitus, increased blood pressure, sleeplessness, and became more argumentative and withdrawn. Awarded $6,000 in non-pecuniary damages).

Pecuniary damages

Damages for past pecuniary damages will not normally be sought without documentation such as receipts, records, bills, cancelled checks, or confirmation by other individuals, or other proof of actual losses or expenses. Compensatory and Punitive Damages Available Under Section 102 of the Civil Rights Act of 1991 (July 14, 1992) (available at www.eeoc.gov.)

In support of her request for past pecuniary damages, Complainant presented a list with two columns, one entitled "amount spent or estimated," and the other "damages present in case." The columns were for expense types such as doctor, psychologist and doctor bills, and mileage for medical treatment. While each column row was for the same type of expense, one column was a multiple of 2x, 3x, and 3.5x (usually 3x) of the other (except future medical expenses), with no explanation for this. The expenses were listed by type, but were not otherwise itemized. Complainant requested pecuniary damages based on the multiple column. She requested $1,860 for doctor bills, $360 for psychologist bills, $1,057.92 in hospital bills, and $3,947.72 for drugs.

The medical bills Complainant provided were from Moses Cone Health System for treatment from February 8, 2010 to April 19, 2010, for office visits, lab work, medicine, and an EKG; $1,285.06 after negotiated insurance rates from the Forsyth Medical Group for x-ray and lab work services from April 21, 2010 to June 3, 2010; two visits to Primecare in May 2010 at $20 each for unidentified healthcare, and a dental bill for $400 for treatment in August 2011, to reconstruct a tooth. While not indentifying the purpose of all her visits to Moses Cone Health System and Primecare, Complainant indicated that they shared the same doctor who she saw in relation to her anxiety attacks which manifested themselves in heart palpitations, to treat her blood pressure, and to check her potassium levels.

In denying Complainant's request for medical expenses, the Agency found that she failed to adequately document them and did not show that they were the result of the sexual harassment which was found to have ended in April 2010. While we agree with this for the most part, we find that some of Complainant's medical expenses which were documented by both by bills or statements and her specified list by date of reasons for seeking treatment, are compensable when they relate to heart and blood pressure issues. We make this finding because we credit Complainant's statement that she had anxiety based heart palpitations because of the sexual harassment. We credit this statement up through April 26, 2010. Accordingly, we award Complainant $382.64 in pecuniary damages for past medical expenses. This is for medical visits on March 22, 2010, March 25, 2010, and April 19, 2010, at the insurance negotiated rates.

Complainant requested $1,000 in future medical expenses. In denying this expense, the Agency found that Complainant did not identify what future medical expenses she may incur which were caused by the discrimination. We agree, and add that Complainant did not submit any medical documentation regarding this.

Complainant submitted receipts for gasoline expenses. In denying this expense, the Agency noted that Complainant did not explain how these expenses were related with her case, and also requested mileage, which includes fuel costs. We agree. Complainant requested $875.20 (based on an unexplained multiple) for driving 825.67 miles at .53 cents a mile to medical appointments. The Agency denied this expense on the grounds that complainant did not establish a connection between the discrimination and medical appointments, nor offer evidence of the mileage driven. We agree with the later reason and for most the appointments the former reason.

Fees and Costs

A prevailing complainant is entitled to recovery of her costs in prosecuting the claims on which she prevailed. These include copying, postage, travel expenses, and so forth. 29 C.F.R. � 1614.501(e)(2)(ii)(C). Reasonable costs incurred directly by the prevailing complainant are compensable. Costs must be proved in the same manner as fees, and the complainant must provide documentation, such as bills or receipts. See EEOC Management Bulletin 110 (EEO MD-110), Chapter 11, Section V, pages 11-4 & 11-5 (Nov. 9, 1999).

Complainant requests a payment of $201,250 for time she spent prosecuting this case -- 1150 hours at $175 an hour. As argued by the Agency in opposition to Complainant's appeal, Complainant is not an attorney and is not entitled to reimbursement. 29 C.F.R. � 1614.501(e)(1)(iii).

Complainant requested $1,270.94 for driving 1199 miles at .53 cents a mile to meet with her labor representative, and $861.78 for driving 813 miles at .53 cents a mile to drop off mailings at the post office. These dollar amounts were based on an unexplained multiple of 2x. The Agency denied these payments. It found Complainant's mileage for mailing questionable in that she works at postal facility and there are postal stations on her way to work. We agree, and also deny all this mileage because none of it was itemized - insufficient documentation thereof.

Complainant requested $107.83 (based on an unexplained multiple) for driving 194.28 miles at .55.5 cents a mile to the EEOC hearing. The Agency found that the two day hearing was 16.15 miles from Complainant's residence, and hence a round trip would involve 64.60 miles, not 194.28 miles. Accordingly, the Agency awarded Complainant $35.85 for mileage to and from the hearing. We agree with this calculation, and on appeal, Complainant does not contest it.

Lastly, Complainant requested $2,552.68 (based on an unexplained multiple of 4x) in office supplies and postage. After reviewing her receipts for mailing letters, the Agency identified $150.64 in mailings directly related to the processing of this complaint, and awarded this amount. While we agree with the Agency's deductions for duplicate receipts and mailings in relation to other EEO complaints, it also deducted postage for this case for things such as mailings to the EEOC Chair, Congress, and her premature appeal. We disagree with these specified deductions, as they are still reasonable and related to the prosecution of Complainant's complaint. Our review of receipts for mailings indicates $225.72 was properly related to mailing costs in prosecuting this complaint, and award this amount. Finally, the Agency awarded Complainant $38.22 for ink and $12.36 for paper. While this is less than Complainant requested, we find this amount is supported by the record.

Accordingly, the Agency's decision is MODIFIED. On remand, the Agency shall comply with the order below.

ORDER

The Agency is ordered to take the following remedial actions:

To the extent it has not already done so, the Agency shall pay Complainant $6,000 in non-pecuniary damages, $382.64 in past pecuniary damages for medical expenses, and $312.15 in costs incurred in prosecuting her EEO complaint (a total of $6,694.79). The Agency shall make this payment to Complainant within 60 calendar days after this decision becomes final.1

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.

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:

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 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

July 24, 2014

__________________

Date

1 If neither party files a request for reconsideration, this decision becomes final within 30 days after the parties receive this decision. The Commission presumes the parties will receive this decision within five calendar days after it is mailed.

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U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Office of Federal Operations

P.O. Box 77960

Washington, DC 20013

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