EEOC Appeal No. 0120141161
02-03-2015
Complainant v. U.S. Postal Serv.
Brendon L.,
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service
(Capital Metro Area),
Agency.
Appeal No. 0120141161
Agency No. 4K-210-0034-11
DECISION
On February 7, 2014, Complainant filed an appeal from the Agency's January 9, 2014 final decision concerning his claim for compensatory damages with respect to his equal employment opportunity (EEO) complaint alleging employment discrimination in violation of Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq. The Commission deems the appeal timely and accepts it pursuant to 29 C.F.R. � 1614.405(a).
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Rural Carrier at the Agency's Post Office facility in Forest Hill, Maryland.
Finding of Discrimination - EEOC Appeal No. 0120131553
Complainant has had progressive hearing loss since the age of four. He had surgery as a teenager in an attempt to improve his hearing, but it was unsuccessful. His hearing continued to diminish and, when he was in his 20s, he started using a hearing aid that fit behind his ear. Complainant testified that even with his hearing aid it was difficult for him to hear what was going on around him, including conversations and instructions of his supervisors at work. Therefore, in March 2009, Complainant additionally started using a hearing amplifier to increase his ability to hear. He reported that the device helped his hearing, but he alleges that it negatively impacted his life at work.
When Complainant began wearing his amplifier at work, co-workers and management began complaining about feedback from the amplifier that purportedly resulted in a whistling noise. As a rural carrier, Complainant cased his mail in the same workspace as his co-workers. The Postmaster called Complainant and his supervisors into his office to discuss the noise issues. Complainant made adjustments to the device by changing the mold for his ear and the volume. However, the complaints by co-workers continued and worsened. Management held another meeting with Complainant during which they encouraged him to work without his hearing amplifier. Complainant reluctantly agreed to work without it. He immediately began sweating, feeling nervous and sick to his stomach, and having headaches. Complainant's doctor explained to him that he was having a panic attack due to the loss of hearing. Therefore, Complainant explained to management that he could not work without the amplifier.
Complainant indicated that things in the workplace got worse for him. Complainant alleged that he was called names by his co-workers, they interrupted his work several times each day to complain to him about his hearing device, and they filed workplace hazard reports against him. When a temporary clerk came to the workplace, she told a co-worker that the noise made her sick to her stomach. Following the temporary clerk's lead, the co-worker also started claiming that the noise caused her headaches. Complainant was called into another meeting with management following the submission of hazard reports by co-workers. According to Complainant, management told him he was a "safety hazard" and again asked him not to use his amplifier. Complainant refused to do so because of his prior anxiety attack. Complainant suggested that they move his casing station away from his co-workers so that the whistling did not bother them. Management flatly rejected the idea, asserting, according to Complainant, that he was creating a hazard for other employees and should remove his hearing device.
Finding no protection from management from the alleged harassment, Complainant sought EEO counseling. The record showed that the parties entered into a settlement agreement. In the settlement, management agreed to refer Complainant to the Agency's District Reasonable Accommodation Committee (DRAC) to explore solutions to the amplifier issue, as well as provide all the employees in the station with sensitivity training. However, Complainant later established that the Agency had breached the settlement agreement by failing to refer him to the DRAC in a timely manner or ever holding a DRAC meeting to resolve the issue.1 As such, Complainant's initial EEO matter was reinstated from the point where processing ceased. See Fetters v. U.S. Postal Service, EEOC Appeal No. 0120113978 (February 12, 2012).
On April 10, 2012, Complainant filed an EEO complaint alleging that the Agency discriminated against him on the basis of disability when, beginning in March 2009, Complainant was subjected to ongoing discriminatory harassment which management failed to properly address.
The Agency accepted the complaint, characterizing the claim as a denial of reasonable accommodation regarding use of his hearing amplifier. At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation and notice of his right to request a hearing before an EEOC Administrative Judge (AJ). Complainant timely requested a hearing but subsequently withdrew his request. Consequently, the Agency issued a final decision pursuant to 29 C.F.R. � 1614.110(b).
Complainant appealed the Agency's decision. In EEOC Appeal No. 0120131553, the Commission determined that Complainant established that he had been subjected to a hostile work environment from March 2009 to August 2011, when he had cochlear implant surgery. The decision held that Complainant's co-workers began complaining about a whistling noise apparently resulting from feedback from the device. Complainant asserted that multiple times during the day his co-workers would him surprise him by tapping on his shoulder, stop him from working, and tell him about the whistling. Complainant stated that this would happen every day at work for a year. Complainant noted that the co-workers would do this almost every 15 minutes over the 2-3 hours he was in the office. The co-workers would become more belligerent about the whistling and raise their voice as they yelled at him about the noise. They would also say things like "here comes the whistler" or call him "whistler." The decision also noted that the actions were not limited to co-workers. The Postmaster, the Supervisor, the Officer in Charge and the Acting Supervisor would similarly sneak up behind him and yell at him. Complainant also asserted that the Postmaster would sneak up on him to test if he was in fact deaf. Based on the evidence in the record, we concluded that Complainant was subjected to harassment. Further, management was made aware of the harassment but failed to take prompt effective action to address the harassment. Fetters v. U.S. Postal Service, EEOC Appeal No. 0120131553 (August 19, 2013).
In addition, the decision found that Complainant also alleged a claim of denial of reasonable accommodation. Complainant asked to be able to wear his amplifying device at work in order to properly hear what was going on around him and the conversations and instructions of his supervisors. In addition, Complainant asked to move his work area to help abate the situation, but management refused his request. The decision concluded that the Agency also failed to provide Complainant with an effective reasonable accommodation for his hearing impairment, and even refused to engage in a proper interactive discussion with the DRAC over the matter. Id.
Compensatory Damages
In EEOC Appeal No. 0120131553, following the finding of discrimination, the Agency was ordered, among other things, to conduct a supplement investigation into Complainant's claim for compensatory damages. Following the investigation, the Agency issued a final decision on January 9, 2014. Complainant had requested $86,744.93 for past medical expenses. Specifically, Complainant claimed the payment for cochlear implant surgery in August 2011, and an additional $18,400.00 for replacements of the "external elements" of the implant. Complainant also provided submissions for other medical procedures and treatments related to an automobile accident. Complainant asserted that he would not have had the cochlear implant surgery if he had not been exposed to the harassment at work. However, the Agency determined that Complainant's medical evidence did not support his claim that he obtained the cochlear implant due to the harassment. Complainant provided documentation from his physician stating that Complainant had drainage in his left ear and that the surgery was due to chronic ear disease. The Agency held that Complainant's medical documentation demonstrated that Complainant had "chronic mastoiditis" and "hearing loss" which was the reason for the cochlear implant surgery. Further, a post-operative report, from August 2011, stated that despite wearing a hearing aid in the ear, there was inadequate amplification. As such, the Agency found that Complainant failed to establish entitlement for compensatory damages for any medical expenses. Therefore, the Agency denied Complainant's request for $105,144.93 in pecuniary damages.
The Agency then turned to Complainant's claim for non-pecuniary damages. Complainant stated that he was called "Whistler" by coworkers, co-workers complained about the noise that was produced by his amplifiers, and co-workers would approach him "stealthily" and tap him on the shoulder to get his attention. He noted that this happened on a daily basis from March 2009 to August 2011. Complainant further stated that he had experienced problems sleeping, withdrew himself from family dinners, and becoming less communicative with his wife. Even after the harassment ended, Complainant stated that he still had a tendency to isolate himself which affected his "well being" and marriage. Complainant's wife provided supporting statements and added that Complainant chose not to act as a temporary supervisor in order to avoid co-workers. Complainant requested $175,000 in non-pecuniary damages.
The Agency found that this amount was unrealistic and not supported by Complainant's evidence and case law. The Agency found that $13,000.00 was a more reasonable award. The Agency cited Marker v. U.S. Postal Service, EEOC Appeal No. 01A33910 (June 16, 2004) (awarding $12,000.00 for Complainant who experienced harassment for over four years regarding her hearing impairment) and Sellers v. Dep't. of Veterans Affairs, EEOC Appeal No. 01964003 (Oct. 3, 2000) (awarding $13,000.00 to a Complainant who was denied reasonable accommodation for hearing impairment).
Complainant appealed the Agency's decision regarding compensatory damages. Complainant argued that the Agency's award of $13,000.00 in non-pecuniary damages was not sufficient. Complainant restated his affidavit provided in support of his claim for compensatory damages. In it, he recounts the harassment he experience daily for nearly two and a half years. He also noted that he had been a fairly good-natured person most of the time. However, after the harassment, Complainant stated that he became depressed and it weighed heavily on him. He would come home from work in a bad mood causing interference with his interactions with others including his family. He would skip family dinners, became less communicative, have difficulty sleeping, and caused him to become isolated at work and from home. He noted that he would have panic attacks creating problems with his blood pressure.
Complainant then turned to the Agency's failure to provide him with pecuniary damages. Complainant indicated that he requested $104,755.11 in past and future medical expenses. Complainant argued that he had the cochlear implant surgery due to the harassment. He asserted that he would not have had the surgery but for the harassment. He indicated that he did not have the procedure until after he was subjected to the harassment. Therefore, Complainant concluded that the Agency's award for non-pecuniary damages should be reversed and an amount reflecting the pain and suffering Complainant experienced over more than two years of harassment on a daily basis. In addition, Complainant requested that he should be provided with his past and future medical expenses as stated.
ANALYSIS AND FINDINGS
Non-Pecuniary Damages
Compensatory damages do not include back pay, interest on back pay, or any other type of equitable relief authorized by Title VII. To receive an award of compensatory damages, a complainant must demonstrate that he has been harmed as a result of the Agency's discriminatory action: the extent, nature and severity of the harm; and the duration or expected duration of the harm. See Rivera v. Dep't of the Navy. EEOC Appeal No. 01934157 (July 22, 1994), recon. denied, EEOC Request No. 05940927 (Dec. 11, 1995); EEOC's Enforcement Guidance: Compensatory and Punitive Damages Available Under Section 102 of the Civil Rights Act of 1991. EEOC Notice No. 915.002 at 11-12, 14 (July 14, 1992). A Complainant is required to provide objective evidence that will allow an Agency to assess the merits of his request for damages. See Carle v. Dep't of the Navy, EEOC Appeal No. 01922369 (Jan. 5, 1993).
The Commission applies the principle that "a tortfeasor takes its victims as it finds them." See Wallis v. U.S. Postal Serv., EEOC Appeal No. 01950510 (Nov. 13, 1995) (quoting Williamson v. Handy Button Machine Co., 817 F.2d 1290, 1295 (7th Cir. 1987)). However, the Commission also applies two exceptions to this general rule. First, when a complainant has a pre-existing condition, the Agency is liable only for the additional harm or aggravation caused by the discrimination. Second, if Complainant's pre-existing condition inevitably would have worsened, the Agency is entitled to a reduction in damages reflecting the extent to which the condition would have worsened even absent the discrimination; the burden of proof is on the Agency to establish the extent of these offsets. Wallis, supra, (citing Maurer v. United States, 668 F.2d 98 (2d Cir. 1981)); Finlay v. U.S. Postal Serv., EEOC Appeal No. 01942985 (Apr. 29, 1997). The Commission notes, therefore, that Complainant is entitled to recover damages only for injury, or additional injury, caused by the discrimination. See Terrell v. Dep't of Housing and Urban Dev., EEOC Appeal No. 01961030 (Oct. 25, 1996): EEOC Notice No. N 915.002 at 12.
Non-pecuniary losses are losses that are not subject to precise quantification, i.e., emotional pain, suffering, inconvenience, mental anguish, loss of enjoyment of life, injury to professional standing, injury to character and reputation, injury to credit standing, and loss of health. See EEOC Notice No. 915.002 at 10 (July 14, 1992).
After establishing entitlement to an award of compensatory damages, there is no precise formula for determining the amount of damages for non-pecuniary losses, except that the award should reflect the nature and severity of the harm and the duration or expected duration of the harm. See Loving v. Dep't of the Treasury, EEOC Appeal No. 01955789 (Aug. 29, 1997). It should likewise be consistent with amounts awarded in similar cases. See Hogeland v. Dep't of Agriculture, EEOC Appeal No. 01976440 (June 14, 1999). Moreover, we point out that non-pecuniary compensatory damages are designed to remedy a harm and not to punish the Agency for its discriminatory actions. Furthermore, compensatory damages should not be motivated by passion or prejudice or be "'monstrously excessive" standing alone but should be consistent with the amounts awarded in similar cases. See Ward-Jenkins v. Dep't of the Interior, EEOC Appeal No. 01961483 (March 4, 1999)
The Commission has held that evidence from a health care provider is not a prerequisite for recovery of compensatory damages. See Carpenter v. Dep't of Agriculture, EEOC Appeal No. 01945652 (July 17, 1995). Courts also have held that "expert testimony ordinarily is not required to ground money damages for mental anguish or emotional distress. See Wulf v. City of Wichita, 883 F.2d 842. 875 (10th Cir. 1989). A complainant's own testimony, along with the circumstances of a particular case, can suffice to sustain his/her burden in this regard. Nonetheless, the absence of supporting evidence may affect the amount of damages deemed appropriate in specific cases. See Lawrence v. U. S. Postal Serv., EEOC Appeal No. 01952288 (April 18, 1996).
Complainant had requested that the Agency provide him with $175,000.00 in non-pecuniary damages. In our previous decision, we found that Complainant was subjected to harassment nearly every day for almost two and a half years. We note, significantly, that the constant harassment was perpetrated not only by co-workers, but also by management officials, who should have been the ones preventing workplace harassment. In addition, Complainant was sought reasonable accommodation that would allow him to use his hearing amplifier in the workplace without disrupting his co-workers. The Agency failed to do so. Complainant provided an affidavit along with his family members in support of his claim for pecuniary damages. Based on the evidence provided by Complainant and the Agency's supplemental investigation, we determine that Complainant experienced embarrassment, humiliation, panic attacks, anxiety, withdrawal from co-workers and family, and sleeping problems. His wife provided an affidavit supporting Complainant's statements about how the discrimination affected him. She noted that he would withdraw from the family in order to prepare for the "torture to come." She also indicated that Complainant would fill in for a manager in the workplace. However, she stated that Complainant began to reject the temporary manager assignment because he felt that assignment exposed him to further "torture." Complainant's wife also averred that although the harassment stopped in August 2011, he still experienced the negative effects in October 2013, when she provided the affidavit. Based on the evidence in the supplemental investigation, we find the Agency's award of $13,000.00 to be insufficient.
In this case, based on our review of the evidence in the record and based upon Commission precedent, we find that Complainant is entitled to $150,000.00 in non-pecuniary, compensatory damages. This amount takes into account the severity of the harm suffered, and is consistent with prior Commission precedent. See Franklin v. U.S. Postal Service, EEOC Appeal No. 07A00025 (Jan. 19, 2001) ($150,000 in non-pecuniary damages where Agency failed to provide the complainant with a reasonable accommodation and testimony from the complainant and his wife reflected that he was withdrawn, depressed, embarrassed, and lost self esteem); Complainant v. Dep't of the Navy, EEOC Appeal No. 0720120013 (Mar. 12, 2014) (affirming the AJ's award of $145,000 in non-pecuniary damages where the Agency failed to provide a reasonable accommodation and harassed an employee based on his disability and he provided evidence that felt despair, loss, and isolation due to the discrimination); Goodridge v. Social Security Admininstration, EEOC Appeal No. 0720050026 (Nov. 15, 2006) (Complainant was awarded $150,000 in non-pecuniary compensatory damages where testimony of Complainant's family and friends established that the hostile work environment caused Complainant to be withdrawn socially, suffer anxiety and depression, he had difficulty maintaining relationships, he lost enjoyment of life, he had a diminished quality of life, and he displayed physical symptoms). Accordingly, we conclude that an award of $150,000.00 in non-pecuniary compensatory damages is appropriate given the circumstances of this case.
Pecuniary Damages
Pecuniary losses are out-of-pocket expenses that are incurred as a result of the employer's unlawful action. Typically these damages include reimbursement for medical expenses, job-hunting expenses, moving expenses, and other quantifiable out-of-pocket expenses. Enforcement Guidance: Compensatory and Punitive Damages Available Under Section 102 of the Civil Rights Act of 1991, EEOC Notice No. 915.002 (July 14, 1992), at 14. Past pecuniary losses are losses incurred prior to the resolution of a complaint through a finding of discrimination, the issuance of a full-relief offer, or a voluntary settlement. Id. at 8-9. Future pecuniary losses are losses that are likely to occur after resolution of a complaint. Id. at 9. For claims seeking pecuniary damages, such objective evidence should include documentation of out-of-pocket expenses for all actual costs and an explanation of the expense, e.g., medical and psychological billings, other costs associated with the injury caused by the agency's actions, and an explanation for the expenditure. Id. at 9.
In the case at hand, Complainant has asserted that he would not have undergone the cochlear implant but for the harassment. We find that Complainant has not supported his assertion. The medical documentation Complainant provided indicated that he has chronic ear disease. He met with his physician in April 2011, who recommended Complainant for an evaluation for further medical surgical treatment for his condition. In June 2011, the physician stated that Complainant had "complaints of intermittent hearing loss in the left ear and does wear hearing aids that are sort of an over the counter amplifier" that he has used for 7-8 years. The medical documentation provided by Complainant does not show that the surgery was caused by the Agency's actions. As such, we cannot find that Complainant is entitled to pecuniary losses.
CONCLUSION
The Commission MODIFIES the Agency's Final Decision regarding compensatory damages and REMANDS this matter to the Agency to take remedial action in accordance with this decision and the ORDER herein.
ORDER
The Agency, to the extent that it has not already done so, shall, within 60 days of the date this decision becomes final, pay Complainant $ 150,000 in non-pecuniary, compensatory damages.
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.
ATTORNEY'S FEES (H0610)
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.
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 (T0610)
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 (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
February 3, 2015
__________________
Date
1 At the time Complainant provided his affidavit during the investigation into his complaint, it appears he still had not been provided a meeting with the DRAC.
---------------
------------------------------------------------------------
---------------
------------------------------------------------------------
2
01-2014-1161
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120141161