01995773
12-12-2001
Donna M. Sullivan, Complainant, v. John E. Potter, Postmaster General, United States Postal Service (Northeast Area), Agency.
Donna M. Sullivan v. United States Postal Service
01995773
December 12, 2001
.
Donna M. Sullivan,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service
(Northeast Area),
Agency.
Appeal No. 01995773
Agency No. 4B020110495
Hearing No. 160-97-8241
DECISION
Donna M. Sullivan (complainant) timely initiated an appeal from the
agency's final decision (FAD) concerning her equal employment opportunity
(EEO) complaint of unlawful discrimination in violation of Title VII
of the Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. �
2000e et seq. The appeal is accepted pursuant to 29 C.F.R. � 1614.405.
Complainant alleges she was discriminated against on the basis of sex
(female) and subjected to retaliation due to prior EEO activity (on the
basis of sex) when:
(1) her acting manager referred to her in a derogatory manner at
a supervisory staff meeting, which she became aware of on June 30,
1995; and
(2) on July 11, 1995, she was removed from her bid assignment.
Complainant alleged that these actions created a hostile work environment.
For the following reasons, the Commission AFFIRMS, in part, and REVERSES,
in part, the agency's final decision.
The record reveals that complainant, a General Clerk at the agency's Fort
Point Station in Boston, Massachusetts, filed a formal EEO complaint with
the agency on July 28, 1995, alleging that the agency had discriminated
against her as referenced above.
At the conclusion of the investigation, complainant was provided a
copy of the investigative report and requested a hearing before an EEOC
Administrative Judge (AJ). Following a hearing, the AJ issued a decision
finding that complainant had not been subjected to sex discrimination
but that she had been subjected to retaliation in regard to claim 2.
The AJ first concluded that the one time complainant's acting manager
(AM) called complainant a �b�tch�during a meeting at which complainant
was not present, was not actionable in itself. The AJ also found that
the fact that AM proposed to change complainant's bid assignment was
not actionable.
The AJ went on to note, however, that soon after complainant contacted
an EEO Counselor about the �b-tch� comment and an EEO settlement was
proposed, AM ordered complainant's supervisor to change complainant's
lunch hour from 11:00 am to 9:00 am and to report to AM's office at
9:30 each day instead of performing her regular bid assignment. The AJ
found that AM then began to harass complainant on a daily basis by,
for example, calling her on the car phone to �check� on her to see if
she was working, snapping his fingers at her in a demeaning manner,
and requiring her to come into his office and sit at his conference
table to purge folders. The AJ found that AM also harassed complainant
by auditing her separately from others, telling other supervisors not
to give complainant typing projects so that she might not appear to
be busy, and requiring complainant to do jobs that were not her own.
The AJ further held that complainant was assigned to a desk in the
Financial Section where she had no experience and was forced to ask
others for help, that she was told to type labels but was not given
a typewriter, so that she had to provide her own typewriter, and that
she was given tasks to perform without receiving the training on those
tasks for weeks. The AJ concluded that the retaliatory actions of AM
eventually led complainant to leave her job on September 2, 1995.
The AJ went on to find that testimony from a Union official concerning
AM's habits of lying, ignoring grievance decisions, and causing harm to
the emotional health of employees, was credible. The AJ noted that AM's
testimony that his actions were motivated by a desire to create a more
efficient system was unreliable, �to say the least.� In conclusion,
the AJ found that the preponderance of the evidence established that
after being confronted with complainant's EEO complaint, AM engaged in
retaliatory harassment against complainant.
In its final decision, the agency adopted the AJ's finding of no
sex discrimination, but determined that the AJ finding of retaliatory
harassment was erroneous. The agency noted that complainant's complaint
only included claims (1) and (2) and that the AJ limited the scope of the
hearing to these issues. The agency held that complainant was not moved
out of her bid assignment on July 11, 1995, but rather was simply given
a different lunch hour. The agency found that complainant's work hours
were not changed and that complainant did not lose any pay or benefits
due to the change in her lunch hour. The agency concluded that change
of complainant's lunch hour was not sufficiently severe or pervasive
to create a hostile work environment and found that the AJ erred when
he based his finding of retaliatory harassment on issues which were not
properly before him.
On appeal, complainant contends that the AJ's decision correctly
summarized the facts and reached the appropriate conclusions of law.
She argues, among other things, that she claimed in her complaint that
the changing of her bid assignment created a hostile work environment and
that the actions the AJ based his finding on were part of that hostile
work environment. In response, the agency reiterates arguments set
forth in its final decision and asks that its final decision be affirmed.
ANALYSIS AND FINDINGS
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. National Labor Relations Board, 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).
After a careful review of the record, the Commission finds that the AJ's
decision summarized the relevant facts and referenced the appropriate
regulations, policies, and laws. In so finding, we note that the agency's
argument that the AJ should not have considered the actions taken by AM
after July 11, 1995 is without merit. Complainant clearly alleged in her
complaint that she was subjected to harassment at the hands of AM when
he changed her bid assignment and evidence of the treatment AM subjected
complainant to upon changing her assignment is essential to this claim.
The AJ's finding that AM changed complainant's assignment and began
a daily campaign of harassment in an attempt to retaliate against
complainant for her EEO contact is supported by substantial evidence.
The record establishes that shortly after complainant sought EEO
counseling in regard to the �b-tch� comment, AM ordered complainant's
supervisor to move complainant from her regular assignment and assign
her to AM. Complainant testified that AM used his daily contact with
her to harass her by taking actions such as snapping his fingers at her,
assigning her typing duties without giving her access to a typewriter,
requiring her to sit in his office so he could observe her working,
checking up on her via his car phone, and instructing other supervisors
not to give her work so that she would appear to be not working. The AJ
found this testimony to be credible. Such incidents are sufficiently
severe and pervasive to alter the conditions of complainant's work
environment. See Harris v. Forklift Systems, Inc., 510 U.S. 17, 21
(1993); EEOC Notice No. 915.002 (March 8, 1994), Enforcement Guidance
on Harris v. Forklift Systems, Inc. at 3, 6; Cobb v. Department of the
Treasury, EEOC Request No. 05970077 (March 13, 1997).
Moreover, the AJ noted that AM's explanation for his behavior�that
he was attempting to create a more efficient system�was unreliable
and not supported by the record. We discern no basis to disturb
the AJ's decision. Therefore, after a careful review of the record,
including complainant's arguments on appeal, the agency's response,
and arguments and evidence not specifically discussed in this decision,
the Commission REVERSES the agency's final decision in regard to the
claim of retaliatory harassment. The agency's finding that complainant
was not subjected to sex discrimination is AFFIRMED.
Compensatory Damages
Pursuant to section 102(a) of the Civil Rights Act of 1991, a complainant
who establishes her claim of unlawful discrimination may receive, in
addition to equitable remedies, compensatory damages for past and future
pecuniary losses (i.e., out-of-pocket expenses) and non-pecuniary losses
(i.e., pain and suffering, mental anguish). 42 U.S.C. � 1981a(b)(3).
For an employer with more than 500 employees, such as the agency, the
limit of liability for future pecuniary and non-pecuniary damages is
$300,000. Id. The Supreme Court has confirmed that the Commission
possesses the legal authority to require federal agencies to pay
compensatory damages. See West v. Gibson, 527 U.S. 212 (1999).
A review of the record reveals that complainant requested $7,500.00
in compensatory damages for the suffering she endured due to AM's
discriminatory actions. As noted above, the Commission agrees with
the AJ's determination that complainant was subjected to retaliation
by AM. Based on complainant's testimony, we also agree with the AJ's
determination that AM's retaliatory actions, which occurred over
a period of three months, affected complainant both physically and
mentally. Complainant testified that the retaliation AM subjected her to
caused her to become depressed and that she was sick to her stomach on a
daily basis. Complainant also noted that at home she would �break down.�
There are no definitive rules governing the amount of non-pecuniary
damages to be awarded. Non-pecuniary damages must be limited, however,
to the sums necessary to compensate the injured party for actual harm,
even where the harm is intangible. The existence, nature, and severity
of emotional harm must be proved. See Compensatory and Punitive Damages
Available Under Section 102 of the Civil Rights Act of 1991, EEOC Notice
No. N-915.002 (July 14, 1992) at 11. Emotional harm may manifest itself,
for example, as sleepiness, anxiety, stress, depression, marital strain,
humiliation, emotional distress, loss of self esteem, excessive fatigue,
or a nervous breakdown. Id. A proper award should take into account
the severity of the harm and the length of time that the injured party
suffered the harm. See Carpenter v. Department of Agriculture, EEOC
Appeal No. 01945652 (July 17, 1995). Finally, the amount of the award
should not be �monstrously excessive� standing alone, should not be the
product of passion or prejudice, and should be consistent with the amount
awarded in similar cases. See Jackson v. United States Postal Service,
EEOC Appeal No. 01972555 (April 15, 1999), citing Cygnar v. City of
Chicago, 865 F. 2d 827, 848 (7th Cir. 1989).
Several Commission decisions have awarded compensatory damages in cases
somewhat similar to complainant's. See, e.g., Batieste v. Department
of the Air Force, EEOC Appeal No. 01974616 (May 26, 2000) ($12,000.00 in
non-pecuniary damages based on complainant's and others' statements of
emotional distress due to agency's discriminatory termination); Mooney
v. United States Department of Agriculture, EEOC Appeal No. 01974494
(May 24, 2000) ($20,000 in non-pecuniary damages where complainant
suffered from depression and anxiety for 6 - 7 months, followed by a 4-5
month period of Major Depression, due to the agency's discrimination);
Butler v. Department of Agriculture, EEOC Appeal No. 01971729 (April 15,
1999) ($7,500.00 in non-pecuniary damages based on complainant's testimony
regarding his emotional distress); Hull v. Department of Veterans Affairs,
EEOC Appeal No. 01951441 (Sept. 18, 1998) ($12,000.00 in non-pecuniary
damages based on complainant's testimony of emotional distress due
to retaliatory harassment occurring between May and June 1993); White
v. Department of Veterans Affairs, EEOC Appeal No. 01950342 (June 13,
1997) ($5,000.00 in non pecuniary damages based on emotional distress).
After analyzing the evidence which establishes the harm sustained by
complainant and upon consideration of damage awards reached in comparable
cases, the Commission finds that complainant is entitled to an award of
non- pecuniary damages in the amount of $7,500.00. We find this case
analogous to the above-referenced cases with respect to the nature,
severity and duration of the harm. Finally, we note that this award
is not motivated by passion or prejudice, is not monstrously excessive
standing alone, and is consistent with the amounts awarded in similar
cases. See Cygnar, 865 F.2d at 848.
CONCLUSION
The agency's finding of no sex discrimination is AFFIRMED. The agency's
decision in regard to complainant's claim of retaliation is REVERSED
and the matter is REMANDED to the agency to take remedial actions in
accordance with this decision and the ORDER below.
ORDER
The agency is ORDERED to take the following remedial actions:
Within thirty (30) calendar days of the date this decision becomes final,
the agency shall offer to reinstate complainant to her prior 40 hour
week position at the Fort Point Station, with her original schedule,
duties and pay. Complainant shall be given a minimum of fifteen (15)
calendar days to accept or decline the offer. Failure to accept the
offer within the time period set by the agency will be considered a
rejection of the offer, unless complainant can show that circumstances
beyond her control prevented a response within the time limit.
The agency shall determine the appropriate amount of back pay, interest
and other benefits due complainant, pursuant to 29 C.F.R. � 1614.501,
no later than sixty (60) calendar days after the date this decision
becomes final. The back pay period shall begin on September 2, 1995 and
continue through complainant's return to the 40 hour position at Fort
Point Station. If complainant declines to accept the position, the back
pay period shall end on the date she declines the offer of placement.
Complainant shall cooperate in the agency's efforts to compute the
amount of back pay and benefits due, and shall provide all relevant
information requested by the agency. If there is a dispute regarding
the exact amount of back pay and/or benefits, the agency shall issue a
check to complainant for the undisputed amount within sixty (60) calendar
days of the date the agency determines the amount it believes to be due.
Complainant may petition for enforcement or clarification of the amount
in dispute. The petition for clarification or enforcement must be filed
with the Compliance officer, at the address referenced in the statement
entitled �Implementation of the Commission's Decision.�
The agency shall issue a check to complainant for non-pecuniary damages
in the amount of $7,500.00 within fifteen (15) calendar days of the date
this decision becomes final.
The agency shall provide at least eight (8) hours of training in the
obligations and duties imposed by Title VII to AM.
The issue of attorney's fees and costs is REMANDED to the agency.
Complainant, through counsel, shall submit a request for attorney's
fees and costs in accordance with the Attorney's Fees paragraph set
forth below. No later than sixty (60) days after the agency's receipt
of the attorney's fees statement and supporting affidavit, the agency
shall issue a final agency decision addressing the issues of attorney's
fees and costs. The agency shall submit a copy of the final decision
to the Compliance Officer at the address set forth below.
The agency shall post the attached Notice in accordance with the
directive below.
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.
INTERIM RELIEF (F0900)
When the agency requests reconsideration and the case involves a
finding of discrimination regarding a removal, separation, or suspension
continuing beyond the date of the request for reconsideration, and when
the decision orders retroactive restoration, the agency shall comply with
the decision to the extent of the temporary or conditional restoration
of the complainant to duty status in the position specified by the
Commission, pending the outcome of the agency request for reconsideration.
See 29 C.F.R. � 1614.502(b).
The agency shall notify the Commission and the complainant in writing at
the same time it requests reconsideration that the relief it provides
is temporary or conditional and, if applicable, that it will delay
the payment of any amounts owed but will pay interest from the date
of the original appellate decision until payment is made. Failure of
the agency to provide notification will result in the dismissal of the
agency's request. See 29 C.F.R. � 1614.502(b)(3).
POSTING ORDER (G0900)
The agency is ordered to post at its Fort Point Station in Boston,
Massachusetts, 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.
ATTORNEY'S FEES (H0900)
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 (K0900)
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 19848,
Washington, D.C. 20036. 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)(Supp. V 1993). 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 (M0701)
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), 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 19848,
Washington, D.C. 20036. 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 (T0900)
This decision affirms the agency's final decision 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 (Z1199)
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 that the Court appoint
an attorney to represent you and that the Court 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 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
December 12, 2001
Date
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
An Agency of the United States Government
This Notice is posted pursuant to an Order by the United States Equal
Employment Opportunity Commission dated which found that a
violation of Title VII of the Civil Rights Act of 1964, as amended, 42
U.S.C. � 2000e et seq., has occurred at the agency's Fort Point Station,
Boston, Massachusetts facility (hereinafter �facility�).
Federal law requires that there be no discrimination against any
employee or applicant for employment because of the person's RACE,
COLOR, RELIGION, SEX, NATIONAL ORIGIN, AGE, or DISABILITY with respect
to hiring, firing, promotion, compensation, or other terms, conditions
or privileges of employment.
The facility supports and will comply with such federal law and will
not take action against individuals because they have exercised their
rights under law.
The facility was found to have retaliated against an employee in
violation of Title VII when that employee was removed from her bid
assignment and subjected to harassment at the hands of her acting
manager. The facility was ordered to: (1) offer to reinstate the
employee to her original 40 hour week position; (2) determine the
appropriate amount of back pay and other benefits owed employee;
(3) provide EEO training to the responsible management official; (4)
issue a check to the employee for non-pecuniary damages in the amount
of $7,500.00; (5) award reasonable attorney's fees, if applicable; and
(6) post this notice.
The employee's claims for compensatory damages and attorney's fees
and costs were remanded to an EEOC Administrative Judge.
The facility will not in any manner restrain, interfere, coerce, or
retaliate against any individual who exercises his or her right to
oppose practices made unlawful by, or who participates in proceedings
pursuant to, federal equal employment opportunity law.
Date Posted:
Posting Expires:
29 C.F.R. Part 1614