Complainant,v.Patrick R. Donahoe, Postmaster General, United States Postal Service (Southeast Area), Agency.

Equal Employment Opportunity Commission

Feb 21, 2013

0120114141 (E.E.O.C. Feb. 21, 2013)

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

,
Complainant,

v.

Patrick R. Donahoe,
Postmaster General,
United States Postal Service
(Southeast Area),
Agency.

Appeal No. 0120114141

Hearing No. 410-2010-00181X

Agency No. 4H-300-0129-09

DECISION

Pursuant to 29 C.F.R. § 1614.405, the Commission accepts Complainant’s appeal from the
Agency’s August 15, 2011 final order concerning his equal employment opportunity (EEO)
complaint alleging employment discrimination in violation of Title VII of the Civil Rights Act
of 1964 (Title VII), as amended, 42 U.S.C. § 2000e et seq. For the following reasons, the
Commission AFFIRMS the final order and relief ordered.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a Laborer
Custodian at the Agency’s Post Office in La Grange, Georgia. Complainant was one of two
custodians at the facility. The Agency’s policy at the time was that whenever one of the
custodians was out on leave, the other custodian would work either two hours of overtime on
regularly-scheduled days or eight hours of overtime on scheduled off-days. The other
custodian (CW1) went out on leave on February 17, 2009. However, around February 18,
2009, the facility received an order to reduce overtime. Complainant’s acting supervisor (S1)
informed Complainant that he would not be working overtime for the remainder of CW1’s
leave on February 19 - 21, 2009.

CW1 went out on leave again on March 2, 2009, which was Complainant’s off-day. As a
result, Complainant reported to work. After about five and half hours of work, S1 sent
Complainant home after consulting with the Postmaster. On March 17, 2009 and June 14,
2009, CW1 was allowed to work a full eight hours of overtime.
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On August 7, 2009, Complainant filed a formal complaint alleging that the Agency
discriminated against him on the bases of race (African-American), sex (male), color (Black),
and in reprisal for prior protected EEO activity when:

1. On February 19, 20, and 21, 2009, he was not allowed to work overtime when
relieving the other custodian;

2. On March 2, 2009, he was not allowed to work the guaranteed eight hours and not
paid for the entire day;

3. On an unspecified date, the workload was not evenly distributed; and

4. In November 2008, his leave request was denied and he was charged Leave Without
Pay (LWOP) instead.

At the conclusion of the investigation, the Agency provided Complainant with a copy of the
report of investigation (ROI) and notice of his right to request a hearing before an EEOC
Administrative Judge (AJ). Complainant timely requested a hearing. The AJ held a hearing
on March 3, 2011, and issued a bench decision immediately thereafter.1

In the decision, the AJ initially dismissed claim (4) as untimely. Next, the AJ determined that
Complainant had not established a prima facie case of discrimination as to claim (1). S1
testified that the Agency’s District Office issued a directive to eliminate unnecessary overtime.
As a result, Complainant’s two hours of overtime on those days was not allowed.
Additionally, the AJ found that Complainant failed to show that the work was unequally
distributed based on discriminatory or retaliatory animus.

As to claim (2), the AJ concluded that the Agency failed to explain why CW1 was allowed to
work two overtime shifts while Complainant was not. As a result, the AJ found that the
Agency had discriminated against Complainant based on race and sex when it did not allow
him to work a complete eight-hour overtime shift. The AJ then held a hearing regarding
damages on June 23, 2011, and issued a bench decision thereafter.

In the damages decision, the AJ determined that Complainant had presented no medical
documentation and failed to offer any testimony as to seeing a healthcare provider related to
the March 2, 2009 incident. Complainant testified that being sent home that day infuriated him
and made him feel worthless. As a result, the AJ found that an award of $1,000.00 in
compensatory damages would compensate Complainant for any pain and suffering.
Additionally, the AJ awarded Complainant $82.18 plus interest as back pay. The Agency
subsequently issued a final order adopting the AJ’s liability and damages decisions.

1 Complainant withdrew age as a basis of discrimination at the hearing.

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CONTENTIONS ON APPEAL

On appeal, Complainant contends that he has been subjected to a hostile work environment.
Complainant argues that the AJ erred in finding that he failed to show that the work was not
evenly distributed based on discriminatory and retaliatory animus. Complainant alleges that he
has been treated less favorably than CW1. Accordingly, Complainant requests that the
Commission modify the AJ’s damages award and award him a permanent duty assignment to
the Riverside Post Office.

STANDARD OF REVIEW

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. Nat'l Labor Relations Bd., 340 U.S. 474, 477 (1951) (citation
omitted). A finding regarding whether or not discriminatory intent existed is a factual finding.
See Pullman-Standard Co. v. Swint, 456 U.S. 273, 293 (1982). An AJ's conclusions of law
are subject to a de novo standard of review, whether or not a hearing was held.

An AJ's credibility determination based on the demeanor of a witness or on the tone of voice
of a witness will be accepted unless documents or other objective evidence so contradicts the
testimony or the testimony so lacks in credibility that a reasonable fact finder would not credit
it. See Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO
MD-110), at 9-16 (Nov. 9, 1999).

ANALYSIS AND FINDINGS

Dismissal of Claim (4)

As an initial matter, the Commission concurs with the AJ’s dismissal of claim (4) for untimely
EEO Counselor contact, pursuant to 29 C.F.R. §1614.107(a)(2). The record reveals that
Complainant's initial EEO contact occurred in March 2009, which is beyond the 45-day
limitation period. Complainant has presented no evidence warranting a waiver or tolling of the
time for initiating the EEO process. Accordingly, the Commission affirms the dismissal of
claim (4).

Disparate Treatment – Claims (1) – (3)

To prevail in a disparate treatment claim such as this, Complainant must satisfy the three-part
evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green,
411 U.S. 792 (1973). Complainant must initially establish a prima facie case by demonstrating
that he or she was subjected to an adverse employment action under circumstances that would
support an inference of discrimination. Furnco Constr. Corp. v. Waters, 438 U.S. 567, 576
(1978). Proof of a prima facie case will vary depending on the facts of the particular case.
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McDonnell Douglas, 411 U.S. at 804 n. 14. The burden then shifts to the Agency to articulate
a legitimate, nondiscriminatory reason for its actions. Tx. Dep't of Cmty. Affairs v. Burdine,
450 U.S. 248, 253 (1981). To ultimately prevail, Complainant must prove, by a
preponderance of the evidence, that the Agency's explanation is pretextual. Reeves v.
Sanderson Plumbing Products, Inc., 530 U.S. 133, 120 S.Ct. 2097 (2000); St. Mary's Honor
Ctr. v. Hicks, 509 U.S. 502, 519 (1993).

The Commission concurs with the AJ's finding that the Agency articulated legitimate,
nondiscriminatory reasons for its actions as to claim (1). Specifically, around February 19,
2009, the facility received a directive to not issue any unnecessary overtime. Hr’g Tr., Vol. 1,
at 97. Complainant worked overtime on February 17 and 18, 2009; however, pursuant to the
directive, Complainant was not allowed to work overtime for the remainder of CW1’s absence.
Id. Regarding claim (3), S1 testified that the custodians were assigned the same duties and
would try to work together to balance the workload. Hr’g Tr., Vol. 1, at 91-92. Further, S1
added that if CW1 could not perform some of her outside duties due to weather, they would
adjust her duties or they would help each other out in keeping the building clean. Id. at 83,
92. The Commission finds that the AJ's determination that Complainant failed to establish
pretext as to these claims is supported by substantial evidence in the record.

Regarding claim (2), the Commission concurs with the AJ that the Agency failed to provide
any explanation as to why CW1 was allowed to work overtime on two occasions after the no-
overtime directive and Complainant was not. As a result, the Commission AFFIRMS the AJ’s
finding of race and sex discrimination.2

REMEDIES

Back Pay

The purpose of a back pay award is to restore Complainant the income he would have
otherwise earned but for the discrimination. See Albemarle Paper Co. v. Moody, 442 U.S.
405, 418-19 (1975); Davis v. U.S. Postal Serv., EEOC Petition No. 04900010 (Nov. 29,
1990). The AJ found that Complainant was discriminated against when he was denied 2.3
hours of overtime on March 2, 2009. The AJ determined that Complainant was entitled to
$82.18 plus interest for the overtime he was denied. Complainant has presented no evidence
establishing his entitlement to a greater award of back pay. As a result, the Commission finds
no reason to disturb the AJ’s award of $82.18 plus interest in back pay.

Non-pecuniary Damages

Compensatory damages may be awarded for the past pecuniary losses, future pecuniary losses,
and non-pecuniary losses which are directly or proximately caused by an agency's

2 Because the AJ found discrimination with respect to the bases of race and sex, a finding of
color or reprisal would not increase the remedies awarded to Complainant.
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discriminatory conduct. EEOC Enforcement Guidance: Compensatory and Punitive Damages
Available under § 102 of the Civil Rights Act of 1991, EEOC Notice No. 915.002 (July 14,
1992). The Commission notes that Complainant has not established that he incurred any
pecuniary (out of pocket damages) because of the Agency's discriminatory actions.

As to non-pecuniary damages, objective evidence of damages can include statements from an
employee concerning his emotional pain or suffering, inconvenience, mental anguish, loss of
enjoyment of life, injury to professional standing, injury to character or reputation, injury to
credit standing, loss of health, and any other non-pecuniary losses that are incurred as a result
of the discriminatory conduct. Statements from others, including family members, friends,
health care providers, or other counselors (including clergy) could address the outward
manifestations or physical consequences of emotional distress, including sleeplessness, anxiety,
stress, depression, marital strain, humiliation, emotional distress, loss of self-esteem, excessive
fatigue, or a nervous breakdown. Lawrence v. U.S. Postal Serv., EEOC Appeal No.
01952288 (Apr. 18, 1996) (citing Carle v. Dep't of the Navy, EEOC Appeal No. 01922369
(Jan. 5, 1993)).

Evidence from a health care provider or other expert is not a prerequisite for recovery of
compensatory damages for emotional harm. The employee's own testimony, along with the
circumstances of a particular case, can suffice to sustain his burden in this regard. The more
inherently degrading or humiliating an agency's action is, the more reasonable it is to infer that
a person would suffer humiliation or distress from that action. The absence of supporting
evidence, however, may affect the amount of damages appropriate in specific cases. See Banks
v. U.S. Postal Serv., EEOC Appeal No. 07A20037 (Sept. 29, 2003) (citing Lawrence v. U.S.
Postal Serv., EEOC Appeal No. 01952288 (Apr. 18, 1996)).

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. 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). In the instant case, Complainant testified that he was infuriated
when he was sent home prior to working the full eight hours of overtime and that he felt
worthless.

Considering the nature, duration, and severity of Complainant's emotional harm and with
reference to damage awards reached in comparable cases, the Commission finds that the AJ's
award of $1,000 in non-pecuniary compensatory damages was appropriate. See Lee v. U.S.
Postal Serv., EEOC Appeal No. 0120091395 (Apr. 15, 2009) (award of $1,000 in non-
pecuniary damages when as a result of a denial of a requested schedule change, the
complainant suffered stress and had difficulty sleeping); Seda v. U.S. Postal Serv., EEOC
Appeal No. 0720050090 (Mar. 20, 2007) (complainant was entitled to $1,500 in non-pecuniary
compensatory damages for discrimination where Complainant provided only limited and non-
descriptive testimony concerning emotional pain). Finally, to the extent Complainant contends
he should be awarded a permanent reassignment to the Riverside Post Office, the Commission
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notes that the AJ did not award this remedy, and Complainant has not established that he is
entitled to such an award. Accordingly, the Commission discerns no basis to disturb the AJ’s
award of relief.

CONCLUSION

After a review of the record in its entirety, including consideration of all statements submitted
on appeal, it is the decision of the Equal Employment Opportunity Commission to AFFIRM
the Agency’s final order finding discrimination on the bases of race and sex with respect to
claim (2) and finding no discrimination for the remainder of the complaint.3

The Agency is
ORDERED to take corrective action in accordance with this decision and the Order of the
Commission below.
ORDER

The Agency shall take the following actions to the extent it has not already done so:

1. Within 30 days of the date this decision becomes final, the Agency shall pay
Complainant $1,000.00 in non-pecuniary compensatory damages;

2. Within 30 days of the date this decision becomes final, the Agency shall pay
Complainant $82.18 plus interest in back pay;

3. Within 180 days of the date this decision becomes final, the Agency is directed to
provide EEO training for the responsible management officials addressing their
responsibilities with respect to eliminating discrimination in the workplace with an
emphasis on race and sex discrimination; and

4. The Agency shall consider taking disciplinary action against the management officials
identified as being responsible for the discrimination perpetrated against Complainant.
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. The Commission
does not consider training to be disciplinary action.

The Agency is further directed to submit a report of compliance, as provided in the statement
entitled “Implementation of the Commission's Decision.”

3 We note that Complainant’s representative during the hearing process as well as on appeal is
not an attorney, thus precluding an award of attorney’s fees and costs. 29 C.F.R.
§ 1614.501(e).
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POSTING ORDER

(G0610)
The Agency is ordered to post at its Post Office in La Grange, Georgia 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.

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 (Nov. 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
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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

February 21, 2013
Date