Kendrick B.,1 Complainant,v.Megan J. Brennan, Postmaster General, United States Postal Service (Great Lakes Area), Agency.

Equal Employment Opportunity Commission

Sep 11, 2019

0120181605 (E.E.O.C. Sep. 11, 2019)

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

Kendrick B.,1
Complainant,

v.

Megan J. Brennan,
Postmaster General,
United States Postal Service
(Great Lakes Area),
Agency.

Appeal No. 0120181605

Hearing No. 440-2015-00030X

Agency No. 1J-607-0012-04

DECISION

On April 10, 2018, Complainant filed an appeal with the Equal Employment Opportunity
Commission (EEOC or Commission), pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s
March 8, 2018, final order on the limited issue of pecuniary, compensatory damages following
EEOC decisions finding that the Agency subjected him to unlawful 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 Agency’s final order.

BACKGROUND

Complainant’s two complaints

At the time of events giving rise to this complaint, Complainant worked as a Manager,
Distribution Operations (MDO), EAS-20, at the Cardiss Collins Processing & Distribution
Center (P&DC) in Chicago, Illinois. On December 12, 2003, Complainant filed an EEO
complaint (Agency No. lJ-607-0012-04) alleging that he was discriminated against on the bases
of national origin (Ghana) and in reprisal for prior protected EEO activity arising under Title VII

1 This case has been randomly assigned a pseudonym which will replace Complainant’s name
when the decision is published to non-parties and the Commission’s website.
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of the Civil Rights Act of 1964 when: (l) in October 2003, he was involuntarily reassigned to the
SPBS unit; and (2) he was denied higher-level pay for higher-level work.

On November 22, 2004, Complainant filed a second EEO complaint (Agency No. 4J-606- 0247-
04) alleging that he was discriminated against on the basis of national origin when, in August
2004, he was notified that the vacancy announcement for an MDO, EAS-24, position at the
Irving Park Road P&DC was being reposted in order to attract a larger pool of qualified
candidates. The Agency dismissed this second complaint for failure to state a claim, but in
EEOC Appeal No. 01A51572 (March 23, 2005), the Commission reversed the dismissal and
remanded the complaint for further processing, finding that Complainant had alleged that the
vacancy announcement was reposted in order to avoid selecting him for discriminatory reasons. 2

These complaints were ultimately consolidated and came before this Commission on appeal in
EEOC Appeal No. 0120060802 (Nov. 20, 2007), request for reconsideration denied, EEOC
Request No. 0520080211 (May 30, 2008). On appeal, the Commission reversed the Agency's
final order with respect to claims 1 and 2, finding that Complainant established that he was
subjected to unlawful national origin discrimination and reprisal when he was involuntarily
reassigned and denied higher-level pay. The decision found that the Agency had failed to
articulate any legitimate, nondiscriminatory reason for reassigning Complainant, and that
Complainant had shown that the Agency's reasons for denying him the higher-level pay were
pretext for discrimination. With respect to his third claim in Complainant's second complaint, the
Commission affirmed the finding of no discrimination, finding that Complainant had not
established that the vacancy announcement had been canceled, and that he was not selected for
the MDO, EAS-24, position, for discriminatory reasons. In addition to other remedies, we
remanded the complaint for an EEOC Administrative Judge (AJ) to render a determination on
the issue of compensatory damages and attorney's fees.

By Orders of December 18, 2008, and October 19, 2009, after receiving motions from both
parties, the AJ did not allow Complainant to submit testimony and evidence on lost
compensation from his outside employment as a consultant with the YMCA. The AJ found that
Complainant failed to detail his pecuniary loss in connection with the YMCA job in the original
discovery period in early 2005. The AJ also ruled that Complainant would be allowed to present
evidence on his entitlement to damages from the loss of promotional opportunities within the
Agency.

After holding a hearing on Complainant’s entitlement to damages and attorney’s fees, the AJ
issued a decision on December 17, 2009.

2 As this appeal is limited to pecuniary damages, this Commission decision will not restate the
full case background. We incorporate the background as provided in EEOC Appeal No.
0720100036 (May 13, 2014) herein. Rather this decision will focus on the subject of
Complainant’s appeal—his entitlement to pecuniary, compensatory damages following a hearing
ordered by this Commission.
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The AJ found Complainant had been fully compensated for back pay and that Complainant failed
to establish his entitlement to compensation for the loss of promotional opportunities. With
respect to nonpecuniary damages, the AJ found that Complainant was entitled to damages for the
harm caused by the October 2003 reassignment. On March 15, 2010, the AJ issued an order
entering his decision to award Complainant $210,000 in nonpecuniary, compensatory damages
and $29,705 in attorney's fees. On April 28, 2010, the Agency issued a final order rejecting the
AJ' s decision.

Most Recent EEOC Decision

Both the Agency and Complainant appealed the Agency’s April 28, 2010 final order addressed
in EEOC Appeal No. 0720100036 (May 13, 2014). On appeal in EEOC Appeal No.
0720100036, Complainant challenged the AJ’s denial of any pecuniary damage award.
Complainant argued the AJ erred in denying evidence and testimony related to his resignation
from a YMCA consulting position due to the stress from his October 2003 reassignment by the
Agency. In EEOC Appeal No. 0720100036, we reversed the Agency’s final order and modified
the AJ’s order, by finding Complainant was entitled to $120,000 in nonpecuniary, compensatory
damages. Additionally, this Commission found the AJ erred in not allowing evidence and
testimony regarding Complainant’s YMCA job as it related to his 2003 discriminatory
reassignment. We remanded the matter to an AJ for a hearing on the sole issue of Complainant’s
entitlement to pecuniary damages in connection with his lost income from the YMCA position.

Decision on Pecuniary Damages

In accordance with the Commission’s Order on remand, the AJ held a hearing for the limited
issue of potential pecuniary damages from lost income from his YMCA job on June 21, 2017.
The AJ issued a decision on January 25, 2018. The Agency subsequently issued a final order
adopting the AJ’s finding that Complainant failed to establish that the discrimination in October
2003 was the cause of any claimed loss of YMCA income or the cause of any stress that had
caused Complainant to leave his position with the YMCA. Furthermore, the AJ noted that even if
Complainant could establish causation, he failed to present objective evidence of any lost wages.

Complainant filed the instant appeal. Complainant disputes the Agency’s finding and argues the
Agency erred in deciding that Complainant’s 2003 reassignment did not cause Complainant to
lose income at the YMCA organization. Complainant argues evidence presented during the June
21, 2017 hearing established that prior to his reassignment, which the Commission found to be
discriminatory, Complainant was excelling at his consulting position at the YMCA.

In contrast, the Agency argues the final order should be upheld. The Agency argues this denial is
supported by evidence that between the October 2003 reassignment and May 2004, in addition to
continuing to consult for the YMCA and working fulltime for the Agency, Complainant engaged
in ancillary business activities including purchasing an additional rental property and engaging in
litigation surrounding eviction of one of his tenants.
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The Agency argues Complainant’s unrelated, stressful life events as well as his continued ability
to engage in ancillary business activities while working full-time for the Agency support the AJ’s
determination that the October 2003 reassignment did not cause him to stop consulting for the
YMCA in May 2004.

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, at § VI.B. (Aug. 5, 2015).

With respect to Complainant’s request for pecuniary damages, pecuniary losses are out-of-pocket
expenses incurred due to an employer’s unlawful action, including job-hunting expenses, moving
expenses, medical expenses, psychiatric expenses, physical therapy expenses, and other
quantifiable out-of-pocket expenses. Past pecuniary losses are the pecuniary losses that are
incurred prior to the resolution of a complaint. The Commission, however, requires
documentation in support of these expenses, typically in the form of receipts, bills, or physician’s
statements. See Complainant v. United States Postal Service, EEOC Appeal No. 01981955
(October 3, 2000); Complainant v. Social Security Administration, EEOC Appeal No. 01972427
(March 8, 2000). We agree with the Agency’s decision to not award pecuniary damages for lost
income as a result of Complainant resigning as a consultant for the YMCA in May 2004. We
find that substantial evidence supports the AJ’s decision.

Although Complainant contends that the Agency’s discriminatory reassignment in October 2003,
played a role in his decision to resign from the YMCA, we agree with the AJ that Complainant
has not established a causal connection between the pecuniary damages requested and the
Agency’s discriminatory actions. Complainant argues that the Executive Director of the YMCA
in Chicago provided testimony that supported his claim that the stress of working for both the
Agency and the YMCA was the reason he left his consulting position and therefore, was entitled
to lost compensation.

However, a review of the evidence and testimony before the AJ shows Complainant left the
YMCA to focus on his position within the Agency, as he and the Executive Director stated
during the hearing. Complainant admitted that at no point did any medical professional advise
him that he should discontinue consulting for the YMCA.
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The record showed between October 2003 and May 2004, Complainant did not take any sick
days with the Agency. Contrary to Complainant’s claim that the Executive Director hired
someone to replace him following his departure, there was no evidence or testimony to support
this claim. Furthermore, while the Executive Director testified she believed she would have
continued to employ Complainant had he not quit, she provided no further evidence or testimony
establishing the need for Complainant's continued services or the quantity of work that would
have been performed.

Moreover, the record also established in November 2003, Complainant handled the sale of a
home for which he received rental income. He also represented himself in an eviction matter in
April 2004, regarding one of his rental properties. Complainant also testified that after his
reassignment, but prior to his departure from the YMCA, he was not selected for a position with
the Agency and that nonselection, which this Commission found to be nondiscriminatory, caused
him to hit rock bottom. We find the AJ’s decision that Complainant failed to meet his burden of
proof that the discriminatory reassignment was the cause of any loss of YMCA income is
supported by substantial evidence in the record.

CONCLUSION

Accordingly, we AFFIRM the Agency’s final order denying an award of pecuniary damages.

STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0617)

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. A party
shall have twenty (20) calendar days of receipt of another party’s timely request for
reconsideration in which to submit a brief or statement in opposition.
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See 29 C.F.R. § 1614.405; Equal Employment Opportunity Management Directive for 29 C.F.R.
Part 1614 (EEO MD-110), at Chap. 9 § VII.B (Aug. 5, 2015). All requests and arguments must
be submitted to the Director, Office of Federal Operations, Equal Employment Opportunity
Commission. Complainant’s request may be submitted via regular mail to P.O. Box 77960,
Washington, DC 20013, or by certified mail to 131 M Street, NE, Washington, DC 20507. 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 agency’s request must be submitted in digital format via the EEOC’s Federal
Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). 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 (Z0815)

If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may
request permission from the court to proceed with the civil action without paying these fees or
costs. Similarly, if you cannot afford an attorney to represent you in the civil action, you may
request the court to appoint an attorney for you. You must submit the requests for waiver of
court costs or appointment of an attorney directly to the court, not the Commission. The
court has the sole discretion to grant or deny these types of requests.
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Such requests do not alter the time limits for filing a civil action (please read the paragraph titled
Complainant’s Right to File a Civil Action for the specific time limits).
FOR THE COMMISSION:

______________________________ Carlton M. Hadden’s signature
Carlton M. Hadden, Director
Office of Federal Operations

September 11, 2019
Date