0720070031
12-07-2009
Jannell Smith, Complainant, v. John E. Potter, Postmaster General, United States Postal Service (Western Region), Agency.
Jannell Smith,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service
(Western Region),
Agency.
Appeal No. 0720070031
Hearing No. 320-2005-00241X
Agency No. 4E-800-0464-03
DECISION
Following its January 16, 2007 final order, the agency filed a timely
appeal which the Commission accepts pursuant to 29 C.F.R. � 1614.405(a).
On appeal, the agency requests that the Commission affirm its rejection of
an EEOC Administrative Judge's (AJ) order to award complainant $30,000.00
in non-pecuniary compensatory damages. For the following reasons,
the Commission AFFIRMS the AJ's decision.
ISSUES PRESENTED
The issue on appeal is whether the AJ properly awarded complainant
$30,000 in non-pecuniary compensatory damages.
BACKGROUND
At the time of events giving rise to this complaint, complainant worked
as an Address Management Systems (AMS) Specialist at the agency's
Holly Street facility in Denver, Colorado.1 Complainant filed an EEO
complaint on June 6, 2003, alleging that she was discriminated against
on the bases of sex (female) and reprisal for prior protected EEO
activity under Title VII of the Civil Rights Act of 1964 (Title VII),
as amended, 42 U.S.C. � 2000e et seq., when she was required to move
out of her office into a cubicle, and when she was treated differently
than male employees, resulting in harassment. At the conclusion of the
investigation, complainant was provided with a copy of the report of
investigation and notice of her right to request a hearing before an AJ.
Complainant timely requested a hearing. The AJ held a hearing on March
21-23, 2006 and issued a decision on September 25, 2006.
The AJ's decision found that complainant failed to establish she was
subjected to retaliation, but had successfully established she was
discriminated against and harassed based on sex in connection with the
issues raised in the complaint. The AJ awarded complainant $30,000 in
non-pecuniary compensatory damages.
The agency subsequently issued a final order accepting the AJ's finding
of discrimination but rejecting the AJ's decision to award complainant
$30,000 in non-pecuniary compensatory damages. In a subsequent appeal,
the agency argued that the AJ's award of $30,000 is excessive and not
supported by substantial evidence in the record. The agency's submits
that the award was not reduced by 20 percent to account for the other
stressors in complainant's life unrelated to the issues in the case,
and that the award is inconsistent with amounts awarded in similar cases.
Complainant requests that the Commission uphold the $30,000 award as
appropriate to the facts and circumstances of this case, as well as,
being consistent with similar cases. Complainant contends that the
agency's argument that the award was not reduced is misplaced because
the AJ stated in her decision that she reduced the award by 20 percent.
Further, complainant contends that the amount the AJ awarded in this
case is consistent with the amount awarded in other Commission cases.
Complainant submits that there were many similarities between the
cases cited by the AJ in her decision and complainant's case. Further,
complainant proffers that the agency's argument that there are similar
cases to complainant's where the amount of non-pecuniary compensatory
damages awards were significantly lower is misplaced because the agency
did not consider the differences in the duration as well as the stated
long-term affects the discriminatory actions had on complainant in this
case as compared to the complainants in the cases to which the agency
cited. In addition to the Commission affirming the AJ's decision,
complainant seeks an award of additional attorney's fees and costs
incurred in connection with this appeal.
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). 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 EEOC Management Directive 110, Chapter 9, � VI.B. (November 9, 1999).
Compensatory damages may be awarded for the past pecuniary losses,
future pecuniary losses, and non-pecuniary losses which are directly or
proximately caused by the agency's discriminatory conduct. Enforcement
Guidance: Compensatory and Punitive Damages Available Under Section
102 of the Civil Rights Act of 1991 (Enforcement Guidance), EEOC Notice
No. 915.002, at 8 (July 14, 1992). Objective evidence of compensatory
damages can include statements from the complainant concerning his or
her 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. United States Postal Service, EEOC
Appeal No. 01952288 (Apr. 18, 1996) (citing Carle v. Department 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. Complainant's own
testimony, along with the circumstances of a particular case, can suffice
to sustain her burden in this regard. The more inherently degrading or
humiliating the 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. United States Postal Service,
EEOC Appeal No. 07A20037 (September 29, 2003) (citing Lawrence v. United
States Postal Service, EEOC Appeal No. 01952288 (Apr. 18, 1996)).
An award of non-pecuniary compensatory damages should reflect the extent
to which the agency's discriminatory action directly or proximately caused
the harm as well as the extent to which other factors also caused the
harm. Johnson v. Department of the Interior, EEOC Appeal No. 01961812
(June 18, 1998). It is the complainant's burden to provide objective
evidence in support of her claim and proof linking the damages to the
alleged discrimination. Papas v. United States Postal Service, EEOC Appeal
No. 01930547 (Mar. 17, 1994); Mims v. Department of the Navy, EEOC Appeal
No. 01933956 (Nov. 24, 1993). The Commission recognizes that not all
harms are amenable to a precise quantification; the burden of limiting
the remedy, however, rests with the employer. Chow v. Department of the
Army, EEOC Appeal No. 01981308 (Feb. 12, 2001). Moreover, the amount of
an 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. Cygnar v. Chicago, 865 F.2d
827, 848 (7th Cir. 1989); EEOC v. AIC Security Investigations, Ltd.,
823 F. Supp. 571, 574 (N.D. Ill. 1993).
The record reveals that complainant suffered from emotional harm in the
form of humiliation, harassment, feelings of uncertainty about her job
and career, and a relapse of depression. See Hearing Transcript (HT),
p. 103-04, 106-07, 180-81. The record reflects that complainant worked
with the supervisor responsible for the alleged discriminatory actions
underlying this complaint for about five years. For about three years
(September 2000 - March 2003), complainant worked under conditions she
alleges often caused her to feel anxious that her career may be at risk.
Complainant states that she worked with uncertainty as to what would
happen each day, was often sleep-deprived as a result of the anxiety,
was unable to concentrate when she was at work, and struggled with
constant feelings of humiliation and depression as a result of the
treatment she was enduring. See HT, p. 104, 106-07. Complainant states
that after being moved out of her office, the humiliation intensified
because co-workers constantly commented on how sorry they were that she
had lost her office space. See HT, p. 103, 181.
The Commission has awarded varying amounts of non-pecuniary compensatory
damages for emotional harm, depending upon the extent and duration of
the harm suffered. See Bahaudin v. Department of the Army, EEOC Appeal
No. 01993594 (Sept. 13, 2000) ($85,000 awarded where complainant,
diagnosed with Major Depression, produced evidence indicating that the
agency's discriminatory actions caused him to, among other things,
become very irritable and distant; wake up at night and make sudden
jerking movements; not want to go to work; just lie in bed when he was
not working; neglect his home duties; and not eat); McCann v. Department
of the Air Force, EEOC Appeal No. 01971851 (Oct. 23, 1998) ($75,000
awarded where complainant's testimony and several reports supported a
finding that the agency's discrimination reawakened complainant's post
traumatic stress disorder); Turner v. Department of the Interior, EEOC
Appeal No. 01956390 (Apr. 27, 1998) ($40,000 awarded where discriminatory
harassment, particularly forcing complainant to carry a forty-five pound
back pack, caused her to experience psychological trauma and physical
injury with permanent effects); Jackson v. United States Postal Service,
EEOC Appeal No. 01972555 (Apr. 15, 1999) ($30,000 awarded for emotional
harm suffered during a six month period); Christian v. Department of
Veterans Affairs, EEOC Appeal No. 01996342 (Sept. 7, 2001) ($30,000
awarded where complainant was continuously sexually harassed by a
co-worker for a period of six years, no medical evidence produced); Mooney
v. United States Dep't of Agric., EEOC Appeal No. 01974494 (May 24, 2000)
($20,000 awarded where complainant suffered from depression and anxiety
for six to seven months, followed by a four to five month period of Major
Depression, due to the agency's discrimination); Wan v. United States
Postal Service, EEOC Appeal No. 01995204 (July 11, 2001) ($15,000 awarded
where there was loss of marital harmony, emotional distress, depression,
and inability to sleep); Banks v. United States Postal Service, EEOC
Appeal No. 07A20037 (Sept. 29, 2003) ($35,000 awarded where complainant
suffered from emotional harm in the form of humiliation, intimidation,
embarrassment, and deep depression without any medical testimony or
documentation to support the depression).
Based on the review of the evidence in light of Commission cases regarding
non-pecuniary compensatory damages awarded for emotional harm, we find
that the AJ's award of $30,000.00 in non-pecuniary compensatory damages is
consistent with what the Commission has awarded or affirmed in cases where
complainants have suffered emotional harm similar in severity and duration
to the emotional harm complainant suffered in the instant case. We do not
find the amount of the award to be "monstrously excessive." Further,
we note the that agency's contention that the award was not reduced
by 20 percent to account for the other stressors in complainant's life
unrelated to the issues in the case is without merit, as the AJ states in
her decision that she reduced the award accordingly to account for these
"other stressors." See AJ Decision, p. 20.
We further note that complainant requested that we award additional
attorney's fees and costs associated with responding to the instant
appeal. As the prevailing party, complainant is entitled to attorney's
fees and cost associated with the processing of the underlying complaint
as well as any subsequent appeals where complainant is also the prevailing
party. 29 C.F.R. � 1614.501(e).2
CONCLUSION
Based upon a thorough review of the record and the contentions on appeal,
including those not specifically addressed herein, we REVERSE the agency's
final order and remand the matter to the agency to take corrective action
consistent with this decision and the Order of the Commission, below.
ORDER
1. The Agency, its officials, managers, and supervisors, are hereby
enjoined from discriminating against complainant. The agency shall
ensure that complainant is not subject to discrimination, or restraint,
coercion, and/or interference related to her right to participate in
the EEO process.
2. Not later than thirty (30) days from the date on which this decision
becomes final, the agency shall tender to complainant non-pecuniary
compensatory damages in the amount of $30,000.
POSTING ORDER (G0900)
The agency is ordered to post at its Denver, Colorado General Mail
Facility 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 (K1208)
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 (M1208)
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 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 (R0408)
This is a decision requiring the agency to continue its administrative
processing of your complaint. However, if you wish to file a civil
action, you have the right to file such action in an appropriate United
States District Court within ninety (90) calendar days from the date
that you receive this decision. 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 filed your appeal with the
Commission. 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. Filing a civil
action will terminate the administrative processing of your complaint.
RIGHT TO REQUEST COUNSEL (Z1008)
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
December 7, 2009
Date
1 The record reflects that the AMS unit has since relocated to the
agency's Denver General Mail Facility.
2 We also note that complainant is entitled to a posted notice of the
finding of discrimination, and will amend the AJ's award of relief
accordingly. See 29 C.F.R. � 1614.501(a).
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0720070031
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0720070031