0720120017
07-12-2012
Kimberly Leggett, Anna Sturgeon, Gail Brunjes, Michelle Laign-Robbins, Nina Whitmore, Jeanette French, and Linda Marshall, Complainants, v. Patrick R. Donahoe, Postmaster General, United States Postal Service (Capital Metro Area), Agency.
Kimberly Leggett, Anna Sturgeon, Gail Brunjes, Michelle Laign-Robbins, Nina Whitmore, Jeanette French, and Linda Marshall,
Complainants,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service
(Capital Metro Area),
Agency.
Appeal Nos. 0720110039, 0720120014, 0720120015, 0720120016, 0720120017, 0720120018, and 0720120019
Hearing No. 430-2008-00443X
Agency Nos. 4K230003208, 4K230003108, 4K230003508, 4K230003008, 4K230002908, 4K230003808, and 4K230003608.
DECISION
Following its July 22, 2011, 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) award of relief for 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 modifies the Agency's final order.1
BACKGROUND
At the time of events giving rise to this complaint, Complainants worked at the Hayes Post Office in Hayes, Virginia. All Complainants worked as Rural Carriers except for Complainant Sturgeon, who was a Rural Carrier Associate, or a substitute carrier.
On February 23, 2008, Complainants filed an EEO complaint as a group, alleging that the Agency discriminated against them and subjected them to a hostile work environment on the bases of sex (female) and reprisal for prior protected EEO activity under Title VII of the Civil Rights Act of 1964 when management failed to address the abusive behavior of a male coworker and they were ultimately removed from the Agency.2 The male employee's abusive behavior included, among other things: he told female employees that he always turned down the heat so he could look at their hardened nipples; he told a female employee that she looked "good, bend you over that chair good"; he made comments to a female employee that he wished her sister who was sick with cancer would hurry up and die; he taunted a female employee about her son's sexual orientation; he told a female employee that her future daughter-in-law would be fun in bed because she was a gymnast; he told a female employee that her "headlights were on" in reference to her nipples; he told female employees that women should be "barefoot and pregnant" and that there was "no room for them in the workplace" because they were taking "jobs away from the men"; he hid mail from the female employees and purposefully delayed the performance of their duties as often as once to three times a week; he violently and angrily threw a stack of tubs across the room; he slammed his cart into female employees' carts; he knocked over female employees' mail and packages; he blocked the back door so female employees could not enter the building; and he told the female employees that he had ways of getting back at them without getting caught.
At the conclusion of the investigation, the Agency provided Complainants with a copy of the report of investigation and notice of their right to request a hearing before an EEOC Administrative Judge (AJ). Complainants timely requested a hearing and the AJ held a hearing on December 9 through 11, 2009, February 8 through 12, 2010, March 25 and 26, 2010, and April 29 and 30, 2010.
On August 24, 2010, the AJ issued a decision. The AJ found that Complainants established that they were subjected to a hostile work environment on the basis of sex by their male coworker and the Agency was liable for the harassment because it did not respond to the situation. The AJ found that the Complainants did not establish that they were subjected to discrimination or retaliation when they were removed from their positions, because the Agency articulated legitimate, nondiscriminatory reasons for the removals. Specifically, the Complainants were removed because they walked out of work, resulting in a work stoppage.
The AJ conducted a separate hearing focused on damages between March 21 and 25, 2011, and April 1, 2011. On June 14, 2011, the AJ issued a decision awarding Complainants, in total, $428,777.15 in compensatory damages and reimbursable expenses. The AJ also awarded Complainants' counsel $350,625 in attorney's fees and $23,502.21 in costs.
The Agency subsequently issued a final order partially implementing the AJ's decision. The Agency agreed with the AJ's finding that Complainants proved that the Agency was liable for the hostile work environment from a male coworker. However, the Agency did not agree with the AJ's ordered relief. As a result, the Agency filed this appeal.
CONTENTIONS ON APPEAL
On appeal the Agency contends that the AJ erred in awarding the Complainants compensatory damages and costs totaling more than $428,000 when they were not successful on all of their claims. The Agency also contends that the AJ erred in calculating attorney's fees and costs Complainants' counsel could recover based upon their clients' partial success. In opposition to the appeal, Complainants contend that the AJ's awards for compensatory damages and attorney's fees were reasonable. Complainants do not appeal the AJ's finding that they did not establish that they were discriminated against when they were removed from their positions.
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. (November 9, 1999).
Here, neither party contests on appeal the AJ's finding that the Agency is liable for the male coworker's harassment of the Complainants. After a review of the entire record, we find that substantial evidence supports the AJ's finding of discrimination and the Agency's liability for that discrimination.
Non-Pecuniary Compensatory Damages
In a claim for compensatory damages, a Complainant must demonstrate, through appropriate evidence and documentation, the harm suffered as a result of the Agency's discriminatory action; the extent, nature, and severity of the harm suffered; and the duration or expected duration of the harm. Rivera v. Dep't of the Navy, EEOC Appeal No. 01934156 (July 22, 1994); Notice at 11-12, 14; Carpenter v. Dep't of Agriculture, EEOC Appeal No. 01945652 (July 17, 1995). Objective evidence in support of a claim for non-pecuniary damages claims includes statements from the Complainant and others, including family members, co-workers, and medical professionals. See Compensatory and Punitive Damages Available Under Section 102 of the Civil Rights Act of 1991, EEOC Notice No. N915.002 (July 14, 1992) (hereafter referred to as "Notice"); Carle v. Dep't of the Navy, EEOC Appeal No. 01922369 (January 5, 1993). Non-pecuniary damages must be limited to compensation for the actual harm suffered as a result of the Agency's discriminatory actions. See Carter v. Duncan-Higgans, Ltd., 727 F.2d 1225 (D.C. Cir. 1994); Notice at 13. 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, supra. Additionally, 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). Finally, we note that in determining non-pecuniary compensatory damages, the Commission has also taken into consideration the nature of the Agency's discriminatory actions. See Utt v. United States Postal Service, EEOC Appeal No. 0720070001 (March 26, 2009); Brown-Fleming v. Dep't of Justice, EEOC Appeal No. 0120082667 (October 28, 2010).
The Agency contends on appeal that the AJ erred in his award of damages because he based the awards on a finding of discrimination on the bases of sex and retaliation. We agree that the AJ erred when he noted in his damages decision that he had found discrimination on the basis of sex and retaliation; the liability decision states that Complainants established they were subjected to a hostile work environment on the bases of sex. However, we find that it is a harmless error. As discussed below, the record reflects that the Complainants established the harm they suffered as a result of the hostile work environment based on their sex.
Additionally, the Agency asserts that Complainants failed to establish that the majority of the harm they suffered resulted from the hostile work environment caused by the male coworker, and instead claims that their damages result from their lawful removal. The Agency argues that no damages should be considered past February 4, 2008, because that incident led to the lawful removal.
The record reflects that on February 4, 2008, Complainants3 came to work to find that their equipment had been taken away. Complainants believed this was another act of harassment instigated by the male coworker and they had very emotional and sometimes serious physical reactions that required medical attention. As a result, the Complainants left work. Evidence in the record establishes that some Complainants sought medical assistance after the incident. Additionally, the record establishes that soon after this incident all of the Complainants met with the EAP therapist as a group, who diagnosed them all with post traumatic stress disorder because of the culmination of the harassment they had been subjected to over the years. The Complainants were not issued Notices of Removal for walking out until March 25, 2008, April 1, 2008, and April 21, 2008. The AJ found the removal was lawful because Complainants had caused a work stoppage.
While the removals issued on March 25, 2008, April 1, 2008, and April 21, 2008, may have been found to be lawful because the Complainants caused a work stoppage, the AJ did not state that removal of the equipment on February 4, 2008, was not attributable to the harassment. The record indicates that Complainants' emotional and physical reactions on February 4, 2008, were the result of suffering years of harassment by their male coworker. The record supports a finding that the many of the Complainants were still suffering from the effects at the time this appeal was filed. Just because the removals on March 25, 2008, April 1, 2008, and April 21, 2008, were found to be lawful does not mean that the damages from the harassment should be cut off on February 4, 2008. We find that the record establishes that the damages from the male coworker's harassment extended past the February 4, 2008 incident that led to the removal. Additionally, the hearing transcript from the damages hearing clearly distinguishes the damages from the removals and the extensive damages from the male coworker's harassment.
The Agency also asserts that the AJ's explanations of the Complainants' damages were vague and the awards were not justified in the decision. The detailed analysis below describes Complainant's damages directly attributable to the male coworker's harassment.
Gail Brunjes
The AJ awarded Complainant Brunjes $60,000 in non-pecuniary compensatory damages from the harm she suffered as a result of the male coworker's harassment.
The AJ found that the male coworker's harassment of the Complainants began in approximately 2004. AJ's June 24, 2011 Decision at 2. Further, the AJ noted that the Postmaster stated that he first received complaints about the male coworker from the Complainants in 2003-2004. Id. at 3.
Complainant Brunjes testified that she first went to a physician about the stress from the male coworker's harassment in 2005 and was prescribed Wellbutrin. March 21, 2011 Damages Hearing Transcript at 106. The record reflects that because of the coworker's harassment, Complainant began to see a therapist through the Agency's EAP Program in 2007. Id. at 115. In October 2007, the EAP therapist diagnosed Complainant Brunjes as having post-traumatic stress disorder caused by the ongoing harassment at work. March 24, 2011 Damages Hearing Transcript at 8. Further, following the February 4, 2008 incident, the EAP therapist met with all the Complainants as a group and diagnosed each of them, including Complainant Brunjes, with post-traumatic stress disorder as a result of the workplace harassment. Id. at 121-124.
Complainant Brunjes testified that the male coworker's harassment caused her to suffer both emotional and physical symptoms. She stated that the male coworker's harassment caused her to have diarrhea and an upset stomach, and it aggravated her diabetes because the anxiety caused her sugar levels to go up. March 21, 2011 Damages Hearing Transcript at 111-112. She testified that because of the male coworker's harassment she couldn't sleep, and when she did sleep she would wake up every couple of hours and have nightmares about the Post Office. Id. at 113. She stated that she would often wake crying. Id. Complainant Brunjes also stated that she often cried while going to and from work and while she was at work. Id. at 109. Complainant Brunjes testified that she was scared that the male coworker would act violently towards her and she was afraid to go into the Post Office alone. Id. at 119. Complainant Brunjes stated that the stress from the male coworker's harassment caused her to break out in red itchy hives all over which sent her to the hospital. Id. at 130.
Complainant Brunjes testified that the male coworker's harassment caused a strain on her marriage and she would often get mad at her husband and yell at him when she got home from work. Id. at 110. She testified that she stopped cooking, stopped washing clothes unless she had to, and often just went to bed when she came home from work. Id. at 110. Complainant Brunjes stated that she stopped having family holidays and stopped seeing her grandchildren. Id. at 135.
Complainant Brunjes' husband testified that in 2004 he began noticing differences in his wife attributed to the male coworker's harassment. Id. at 188. The husband testified that they would have disagreements about what was happening at work, and Complainant Brunjes would often be withdrawn, ignored him, would not want to talk, often went right to bed when she went home, and all physical affection ceased. Id. at 190 - 191; 192. The husband also noted that she had a lot of health problems after the male coworker's harassment started, including nightmares about the Post Office, diarrhea, and hives. Id. at 191.
Complainant Brunjes' sister, who worked with her at the Post Office, testified that she saw Complainant Brunjes crying almost every day because of the male coworker's harassment. Id. at 197. The sister testified that Complainant Brunjes became withdrawn and unhappy, stopped going to family functions, and became sick with an upset stomach and diarrhea during the relevant time of the male coworker's harassment. Id. at 199 - 200.
Complainant Brunjes' daughter testified that during the relevant time of the male coworker's harassment her mother would often cry, went from having a backbone to being a pushover, always stayed at home, and became mean to her father. Id. at 208 - 209. The daughter stated that Complainant Brunjes "wasn't the same mom. She just wasn't the same person." Id. at 210.
After careful consideration of the evidence of record, including evidence not specifically mentioned herein, we find an award of $75,000 for non-pecuniary compensatory damages is appropriate. This amount takes into consideration the nature of the discriminatory acts, the severity of the physical and emotional harm suffered, the many years that Complainant suffered the harm, and is consistent with prior Commission precedent. See Mohar v. U.S. Postal Service, EEOC Appeal No. 0720100019 (August 29, 2011) (Complainant was awarded $100,000 in non-pecuniary compensatory damages where the harassment resulted in Complainant suffering major depression and post traumatic stress disorder which was triggered by the work environment which the Agency took no action to address); Miles v. USPS, EEOC Appeal No. 07A30019 (February 27, 2004) (Complainant, who was diagnosed with exacerbation of major depression, post traumatic stress disorder, and adjustment disorder, was awarded $75,000 in non-pecuniary compensatory damages after sexual harassment resulted in Complainant working in fear and feeling anger, depression, and distance from her husband); Crear v. Department of Veterans Affairs, EEOC Appeal No. 07A50079 (January 26, 2006) (Complainant was awarded $70,000 in non-pecuniary damages after sex based harassment resulted in her feeling fear, anger, worry, embarrassment, degraded, and she had nightmares, hair loss, and problems with her husband and children). Accordingly, we conclude that an award of $75,000 will adequately compensate Complainant for the physical and emotional harm she suffered as a result of the male coworker's harassment.
Jeannette French
The AJ awarded Complainant French $60,000 in non-pecuniary compensatory damages from the harm she suffered as a result of the male coworker's harassment.
As we noted earlier, the AJ found that the male coworker's harassment of the Complainants began in approximately 2004. AJ's June 24, 2011 Decision at 2. Further, the AJ noted that the Postmaster stated that he first received complaints about the male coworker from the Complainants in 2003-2004. Id. at 3.
The record reflects that because of the male coworker's harassment, Complainant French began to see a therapist through the Agency's EAP Program in 2007. March 23, 2011 Damages Hearing Transcript at 41. The EAP therapist diagnosed Complainant French in 2007 as having adjustment disorder with anxiety, which was caused by the conditions of her work environment. March 24, 2011 Damages Hearing Transcript at 46. Further, following the February 4, 2008 incident, the EAP therapist met with all the Complainants as a group and diagnosed each of them, including Complainant French, with post-traumatic stress disorder as a result of the workplace harassment. Id. at 121-124.
Complainant French testified that the male coworker's harassment made her lose focus and she became confused, scared, paranoid, and afraid that the coworker was going to kill her. March 23, 2011 Damages Hearing Transcript at 35; 41. Complainant French stated that management's failure to address the male coworker's harassment made her feel a sense of loss, a sense a worthlessness, and that she was of ignored and of no value. Id. at 36.
Complainant French testified that the male coworker's harassment resulted in her suffering physical symptoms as well. Complainant French stated that the stress caused her stomach to severely cramp at least two or three times a week, she stopped eating, and she had pains in her chest. Id. at 43 - 44. Complainant French stated that she became delusional, she became unorganized, she couldn't concentrate, and "everything was unraveling." Id. at 41; 43. Complainant also testified that because of the male coworker's harassment she no longer did normal things such as washing the floor, taking the dogs out, washing clothes, cooking dinner, or watching movies. Id. at 43. Complainant French stated that she "lost my joy of life." Id. at 44.
Complainant French's husband testified that because of the male coworker's harassment his wife became unfriendly, paranoid, distraught, leery, and went from "happy go lucky" to "gloom and doom." Id. at 6 - 15. He testified that the male coworker's harassment put a strain on their relationship and all intimacy ended. Id. at 6. They no longer went places and she snapped at him so often that he avoided her. Id. at 8. The husband also testified that Complainant French suffered physical symptoms, such as loss of significant weight, and several times he found her on the floor with stomach cramps. Id. at 6. He testified that Complainant French stopped washing clothes and stopped cooking dinner. Id. at 8. The husband also stated that he believes it is a real probability that the male coworker will try to hurt his wife. Id. at 18.
Complainant French's daughter testified that the male coworker's harassment made her mother depressed, stressed, caused her a lot of anxiety, and made her feel put down. Id. at 26-27. The daughter testified that at times it was as if her mother was not mentally there, and she wouldn't even answer questions because her mind couldn't focus on what was being said. Id. at 28. The daughter stated that her mother lost a significant amount of weight and went down to about 100 pounds. Id. at 29.
After careful consideration of the evidence of record, including evidence not specifically mentioned herein, we find an award of $75,000 for non-pecuniary compensatory damages is appropriate. This amount takes into consideration the nature of the discriminatory acts, the severity of the physical and emotional harm suffered, the length of time Complainant suffered the harm, and is consistent with prior Commission precedent. See Mohar, supra (Complainant was awarded $100,000 in non-pecuniary compensatory damages where the harassment resulted in Complainant suffering major depression and post traumatic stress disorder which was triggered by the work environment which the Agency took no action to address); Miles, supra (Complainant, who was diagnosed with exacerbation of major depression, post traumatic stress disorder, and adjustment disorder, was awarded $75,000 in non-pecuniary compensatory damages after sexual harassment resulted in Complainant working in fear and feeling anger, depression, and distance from her husband); Crear, supra (Complainant was awarded $70,000 in non-pecuniary damages after sex based harassment resulted in her feeling fear, anger, worry, embarrassment, degraded, and she had nightmares, hair loss, and problems with her husband and children). Accordingly, we conclude that an award of $75,000 will adequately compensate Complainant for the physical and emotional harm she suffered as a result of the male coworker's harassment.
Michelle Laign-Robbins
The AJ awarded Complainant Laign-Robbins $40,000 in non-pecuniary compensatory damages from the harm she suffered as a result of the male coworker's harassment.
As we noted earlier, the AJ found that the male coworker's harassment of the Complainants began in approximately 2004. AJ's June 24, 2011 Decision at 2. Further, the AJ noted that the Postmaster stated that he first received complaints about the male coworker from the Complainants in 2003-2004. Id. at 3.
The record reflects that because of the coworker's harassment, Complainant Laign-Robbins began to see a therapist through the Agency's EAP Program in 2007. The EAP therapist noted in 2007 that Complainant was having anxiety attacks at work, she had a racing heart, trouble breathing, ringing ears, and felt edgy, irritable, and fearful. March 24, 2011 Damages Hearing Transcript at 21. The therapist diagnosed her as having a generalized anxiety disorder and a panic disorder caused by the ongoing harassment at work. Id. at 22; 23. Complainant Laign-Robbins' physician ultimately prescribed her Lexapro. March 25, 2011 Damages Hearing Transcript at 97. Further, following the February 4, 2008 incident, the EAP therapist met with all the Complainants as a group and diagnosed each of them, including Complainant Laign-Robbins, with post-traumatic stress disorder as a result of the workplace harassment. March 24, 2011 Damages Hearing Transcript at 121-124.
Complainant Laign-Robbins testified that the coworker's harassment made her feel threatened and she had nausea, severe headaches, queasiness, sleeplessness, and muscle spasms in the back, shoulder, and neck. March 25, 2011 Damages Hearing Transcript at 91; 96. She testified that management's failure to address the male coworker's harassment made her feel very inconsequential. Id. at 92. Complainant Laign-Robbins testified that while she is no longer in the environment and doesn't feel the affects of the male coworker's harassment as much, she still doesn't trust people and she is not as approachable. Id. at 100-101.
Complainant Laign-Robbins' husband testified that during the time period of the male coworker's harassment his wife was less pleasant to be around, was irritable, and cried about the harassment. Id. at 120-121. Complainant Laign-Robbins' daughter testified that during the relevant time of the harassment her mother was moody, more reserved, and it caused a strain on their relationship because they no longer communicated. Id. at 124-125. The record also reflects that Complainant Laign-Robbins also experienced deaths in the family during the time of the male coworker's harassment. Id. at 120.
After careful consideration of the evidence of record, including evidence not specifically mentioned herein, we find an award of $45,000 for non-pecuniary compensatory damages is appropriate. This amount takes into consideration the nature of the discriminatory acts, the severity of the physical and emotional harm suffered, the length of time Complainant suffered the harm, and is consistent with prior Commission precedent. See Servold v. Department of Homeland Security, EEOC Appeal No. 0120053029 (March 29, 2007) (Complainant was awarded $45,000 in non-pecuniary compensatory damages after a hostile work environment based on sex caused her to feel stress, misery, torment, and insomnia); Powell v. US PS, EEOC Appeal No. 01A50989 (March 3, 2006) (Complainant was awarded $45,000 in non-pecuniary compensatory damages when the hostile work environment caused emotional distress. The medical documentation attributed additional factors besides just the discrimination to her medical disorders); Scott v. Department of Energy, EEOC Appeal No. 0720070018 (April 24, 2007) (Complainant was awarded $45,000 in non-pecuniary compensatory damages when the sexual harassment had a significant emotional impact for her, and testimony by family members substantiated her claim). Accordingly, we conclude that an award of $45,000 will adequately compensate Complainant for the physical and emotional harm she suffered as a result of the male coworker's harassment.
Kimberly Leggett
The AJ awarded Complainant Leggett $60,000 in non-pecuniary compensatory damages from the harm she suffered as a result of the male coworker's harassment.
As we noted earlier, the AJ found that the male coworker's harassment of the Complainants began in approximately 2004. AJ's June 24, 2011 Decision at 2. Further, the AJ noted that the Postmaster stated that he first received complaints about the male coworker from the Complainants in 2003-2004. Id. at 3. However, Complainant Leggett asserts that the male coworker's behavior began to have an impact on her in 2002 or 2003. March 22, 2011 Damages Hearing Transcript at 89.
Complainant first went to her primary care physician about the stress associated with the male coworker's harassment in April of 2006, and was prescribed Prozac. Id. at 90; 101. The physician noted during that visit that Complainant Leggett "describes severe stress with anxiety and depression symptoms with her job in the post office." Id. Additionally, because of the male coworker's harassment, Complainant Leggett began to see a therapist through the Agency's EAP Program in 2007. Id. at 99. The EAP therapist testified that in 2007 she diagnosed Complainant Leggett as having a severe major depressive episode and post traumatic stress disorder, both caused by the ongoing harassment at work. March 24, 2011 Damages Hearing Transcript at 24-25. Further, following the February 4, 2008 incident, the EAP therapist met with all the Complainants as a group and diagnosed each of them, including Complainant Leggett, with post-traumatic stress disorder as a result of the workplace harassment. Id. at 121-124.
Complainant Leggett testified that the male coworker's harassment left her with difficulty concentrating, depression, confusion, no sleep, and feeling nervous and edgy. March 22, 2011 Damages Hearing Transcript at 90; 93; 102. She also stated that she was afraid of the male coworker because of his violent temper. Id. at 93. Complainant Leggett testified that management's failure to address the male coworker's harassment made her feel "minute, unworthy, like I didn't matter. I was of no value." Id. at 95. Complainant Leggett testified that because of the male coworker's harassment and management's inaction, she has lost joy, her sprit is broken, she no longer entertains or cooks, and she sleeps with a loaded shotgun within reach because she fears her male coworker. Id. at 120-121. Further, Complainant Leggett stated that because of the male coworker's harassment, during Christmas of 2007 she was unable to function; she didn't put up a tree, did very little shopping, and was unable to feel enjoyment. Id. at 103.
Complainant Leggett testified that the male coworker's harassment also caused strain on her marriage. She testified that after she was harassed by the male coworker she started to yell at her husband, which was something she never did before. Id. at 97. Complainant reported this to her physician, who prescribed her Xanax. Id.
Complainant Leggett's husband testified that because of the male coworker's harassment his wife was frustrated, aggravated, and acted like she didn't have control. Id. at 168. He testified that the harassment caused a strain on their relationship, she engaged in fewer activities, and she socialized less. Id. at 170. Complainant Leggett's husband also stated that his wife became fearful that the male coworker was going to hurt her after she saw him driving slowly past their house, and as a result she put a loaded shotgun next to the bed. Id. at 173.
Complainant Leggett's sister stated that after the male coworker's harassment, her sister stopped returning her calls, started to look unhealthy, stopped caring about her appearance, and was "a totally different person." Id. at 181-182. The sister also testified that Complainant Leggett is still scared that the male coworker will try to hurt her. Id. at 184.
After careful consideration of the evidence of record, including evidence not specifically mentioned herein, we find an award of $75,000 for non-pecuniary compensatory damages is appropriate. This amount takes into consideration the nature of the discriminatory acts, the severity of the physical and emotional harm suffered, the many years that Complainant suffered the harm, and is consistent with prior Commission precedent. See Mohar, supra (Complainant was awarded $100,000 in non-pecuniary compensatory damages where the harassment resulted in Complainant suffering major depression and post traumatic stress disorder which was triggered by the work environment which the Agency took no action to address); Miles, supra (Complainant, who was diagnosed with exacerbation of major depression, post traumatic stress disorder, and adjustment disorder, was awarded $75,000 in non-pecuniary compensatory damages after sexual harassment resulted in Complainant working in fear and feeling anger, depression, and distance from her husband); Crear, supra (Complainant was awarded $70,000 in non-pecuniary damages after sex based harassment resulted in her feeling fear, anger, worry, embarrassment, degraded, and she had nightmares, hair loss, and problems with her husband and children). Accordingly, we conclude that an award of $75,000 will adequately compensate Complainant for the physical and emotional harm she suffered as a result of the male coworker's harassment.
Linda Marshall
The AJ awarded Complainant Marshall $50,000 in non-pecuniary compensatory damages from the harm she suffered as a result of the male coworker's harassment.
As we noted earlier, the AJ found that the male coworker's harassment of the Complainants began in approximately 2004. AJ's June 24, 2011 Decision at 2. Further, the AJ noted that the Postmaster stated that he first received complaints about the male coworker from the Complainants in 2003-2004. Id. at 3.
Complainant Marshall stated that the coworker's harassment made her fearful that he would act violently towards her and she would not go into the Post Office alone. March 23, 2011 Damages Hearing Transcript at 119. Complainant Marshall testified that the harassment made her feel more strained at work and under more tension, and that she no longer trusts people. Id. at 121; 133. She testified that at home she was more short tempered with her family and she did not want to celebrate the holidays with her family. Id. Because of the male coworker's harassment, Complainant Marshall began to see a therapist through the Agency's EAP Program in 2008.4 Id. at 130. The EAP therapist diagnosed Complainant Marshall in 2008 as having a diagnosis of adjustment disorder with mixed disturbance of emotions and conduct caused by stress from the negative work environment. March 24, 2011 Damages Hearing Transcript at 52 - 53. Further, following the February 4, 2008 incident, the EAP therapist met with all the Complainants as a group and diagnosed each of them, including Complainant Marshall, with post-traumatic stress disorder as a result of the workplace harassment. Id. at 121-124.
Complainant Marshall's husband testified that he noticed changes in his wife's personality during the relevant time of the male coworker's harassment. Specifically, he noticed that his wife was depressed, had anxiety, was abrupt when asked questions, she stopped doing housework, and she stayed up all times of the night. March 23, 2011 Damages Hearing Transcript at 144. Complainant Marshall's daughter testified that the harassment from the male coworker put a strain on their relationship and they were no longer close. Id. at 152. The daughter stated that the harassment made her mother distraught, on edge, very testy, irritated, aggravated, and distant. Id. at 150. The daughter testified that her mother no longer wanted to leave the house, and instead would sit in a corner or nap. Id. at 152.
After careful consideration of the evidence of record, including evidence not specifically mentioned herein, we find an award of $60,000 for non-pecuniary compensatory damages is appropriate. This amount takes into consideration the nature of the discriminatory acts, the severity of the physical and emotional harm suffered, the length of time Complainant suffered the harm, and is consistent with prior Commission precedent. See Tewilliager v. Department of Homeland Security, EEOC Appeal No. 01A53028 (September 13, 2006) (Complainant was awarded $65,000 for sexual harassment that left her feeling tired, short tempered, secluded, depressed, anxious, and trouble eating and sleeping. The harassment caused stress on her marriage and her condition lasted two years). Servold v. Department of Homeland Security, EEOC Appeal No. 0120053029 (March 29, 2007) (Complainant was awarded $45,000 in non-pecuniary compensatory damages after a hostile work environment based on sex caused her to feel stress, misery, torment, and insomnia); Powell v. United States Postal Service, EEOC Appeal No. 01A50989 (March 3, 2006) (Complainant was awarded $45,000 in non-pecuniary compensatory damages when the hostile work environment caused emotional distress). Accordingly, we conclude that an award of $60,000 will adequately compensate Complainant for the physical and emotional harm she suffered as a result of the male coworker's harassment.
Anna Sturgeon
The AJ awarded Complainant Sturgeon $60,000 in non-pecuniary compensatory damages from the harm she suffered as a result of the male coworker's harassment.
As we noted earlier, the AJ found that the male coworker's harassment of the Complainants began in approximately 2004. AJ's June 24, 2011 Decision at 2. Further, the AJ noted that the Postmaster stated that he first received complaints about the male coworker from the Complainants in 2003-2004. Id. at 3.
Complainant Sturgeon began to see a therapist through the Agency's EAP Program in 2007 because of the male coworker's harassment. March 22, 2011 Damages Hearing Transcript at 14. The EAP therapist diagnosed Complainant Sturgeon in 2007 as having adjustment disorder with anxiety and post traumatic stress disorder, both caused by the harassment at her place of employment. March 24, 2011 Damages Hearing Transcript at 34. Further, following the February 4, 2008 incident, the EAP therapist met with all the Complainants as a group and diagnosed each of them, including Complainant Sturgeon, with post-traumatic stress disorder as a result of the workplace harassment. Id. at 121-124.
Complainant Sturgeon stated that the harassment and management's inaction left her with feelings of inadequacy, fear, tenseness, anxiety, and a lack of confidence and self esteem. March 22, 2011 Damages Hearing Transcript at 7; 10-11. Complainant Sturgeon testified that she still has difficulty finding enjoyment in things, does not feel happy, and she doesn't want to do anything or go anywhere. Id. at 36-37. Additionally, Complainant Sturgeon stated that she is still to this day afraid that the male coworker will try to physically hurt her. Id. at 12.
Complainant Sturgeon also testified that she had physical symptoms from the male coworker's harassment. She testified that she had problems with her stomach which resulted in her going in and out of the bathroom, she had chest pains, and she gained 10 pounds within one month. Id. at 18.
Complainant Sturgeon testified that the male coworker's harassment affected her family relationships. She stated that she doesn't want her family to visit her, she gets frustrated with and has no patience her young son, and she doesn't talk to her husband as much because he doesn't want to hear about her work issues anymore. Id. at 37.
Complainant Sturgeon's husband testified that due to the male coworker's harassment, their relationship became strained and his wife was hurt, upset, stressed, and nervous. Id. at 73-74. She was no longer outgoing, was down all the time, and no longer was interested in participating in activities with their young son. Id. at 74-75. He testified that his wife developed sleeping problems, it was hard to talk to her, and she would be mean to him. Id. at 77.
Complainant Sturgeon's mother testified that the male coworker's harassment caused her daughter to feel shocked, appalled, hurt, and afraid. Id. at 82. She testified that her daughter became introverted and would not longer feel like seeing anybody, including family. Id. at 83.
After careful consideration of the evidence of record, including evidence not specifically mentioned herein, we find an award of $75,000 for non-pecuniary compensatory damages is appropriate. This amount takes into consideration the nature of the discriminatory acts, the severity of the physical and emotional harm suffered, the length of time Complainant suffered the harm, and is consistent with prior Commission precedent. See Mohar, supra (Complainant was awarded $100,000 in non-pecuniary compensatory damages where the harassment resulted in Complainant suffering major depression and post traumatic stress disorder which was triggered by the work environment which the Agency took no action to address); Miles, supra (Complainant, who was diagnosed with exacerbation of major depression, post traumatic stress disorder, and adjustment disorder, was awarded $75,000 in non-pecuniary compensatory damages after sexual harassment resulted in Complainant working in fear and feeling anger, depression, and distance from her husband); Crear, supra (Complainant was awarded $70,000 in non-pecuniary damages after sex based harassment resulted in her feeling fear, anger, worry, embarrassment, degraded, and she had nightmares, hair loss, and problems with her husband and children). Accordingly, we conclude that an award of $75,000 will adequately compensate Complainant for the physical and emotional harm she suffered as a result of the male coworker's harassment.
Nina Whitmore
The AJ awarded Complainant Whitmore $60,000 in non-pecuniary compensatory damages from the harm she suffered as a result of the male coworker's harassment.
As we noted earlier, the AJ found that the male coworker's harassment of the Complainants began in approximately 2004. AJ's June 24, 2011 Decision at 2. Further, the AJ noted that the Postmaster stated that he first received complaints about the male coworker from the Complainants in 2003-2004. Id. at 3.
The record reflects that because of the coworker's harassment, Complainant Whitmore began to see a therapist through the Agency's EAP Program. March 21, 2011 Damages Hearing Transcript at 18. Complainant stated that her sessions with the therapist focused on the harassment by the male coworker and how management was not doing anything about it. Id. at 20. The EAP therapist diagnosed Complainant Whitmore in 2007 as having a panic disorder caused by the harassment at her workplace. March 24, 2011 Damages Hearing Transcript at 40. Further, following the February 4, 2008 incident, the EAP therapist met with all the Complainants as a group and diagnosed each of them, including Complainant Whitmore, with post-traumatic stress disorder as a result of the workplace harassment. Id. at 121-124.
Complainant Whitmore testified that the male coworker made her cry at work and at home and that his violent actions made her feel frightened and scared. March 21, 2011 Damages Hearing Transcript at 13, 16. Complainant Whitmore testified that she was afraid that the male coworker may cause her physical harm, and she was so paranoid that he was tampering with her mail that she opened a PO Box in another town and had her mail directed to her in-laws. Id. at 19; 80.
Complainant Whitmore testified that she also suffered physical symptoms from the male coworker's harassment. She lost a significant amount of weight, she had chest pain, couldn't catch her breath, had headaches, and wasn't sleeping well at night. Id. at 14-15, 21. Complainant jumps when she sees someone who resembles the male coworker. Id. at 83.
Complainant Whitmore also stated that the male coworker's harassment affected her personal relationships. She stated that it put a strain on her marriage. Id. at 33. Complainant Whitmore's husband testified that every day she came home for work she would talk about how she was afraid of her male coworker, and she was scared to be alone with him in the post office. Id. at 85. He testified that his wife was afraid that the coworker would act violently towards her and was paranoid that he was going to do something with her social security number. Id. He testified that his wife lost weight and looked sick, had head aches, chest pains, couldn't sleep at night, woke up with nightmares about the male coworker, and is still very emotional. Id. at 85-86. He stated that after the harassment his wife wasn't the same woman he married. Id. at 86.
Complainant Whitmore's daughter testified that her mother use to be "happy go-lucky," but changed and she had trouble sleeping at night, was depressed, moody, and "down in the dumps." Id. at 96-97. She testified that her mother snaps, has a bad temper, and is easy to anger now. Id. at 101. Her daughter testified that because of the male coworker's harassment Complainant Whitmore lost a lot of weight and didn't look healthy. Id. at 98. She also testified that her mother still gets nervous if she sees someone who looks like the male coworker. Id. at 100.
After careful consideration of the evidence of record, including evidence not specifically mentioned herein, we find an award of $75,000 for non-pecuniary compensatory damages is appropriate. This amount takes into consideration the nature of the discriminatory acts, the many years that Complainant suffered the harm, the length of time Complainant suffered the harm, and is consistent with prior Commission precedent. See Mohar, supra (Complainant was awarded $100,000 in non-pecuniary compensatory damages where the harassment resulted in Complainant suffering major depression and post traumatic stress disorder which was triggered by the work environment which the Agency took no action to address); Miles, supra (Complainant, who was diagnosed with exacerbation of major depression, post traumatic stress disorder, and adjustment disorder, was awarded $75,000 in non-pecuniary compensatory damages after sexual harassment resulted in Complainant working in fear and feeling anger, depression, and distance from her husband); Crear, supra (Complainant was awarded $70,000 in non-pecuniary damages after sex based harassment resulted in her feeling fear, anger, worry, embarrassment, degraded, and she had nightmares, hair loss, and problems with her husband and children). Accordingly, we conclude that an award of $75,000 will adequately compensate Complainant for the physical and emotional harm she suffered as a result of the male coworker's harassment.
Pecuniary Damages
The AJ awarded the following pecuniary damages: Complainant Brunjes, $10,666.49; Complainant French, $9,732.32; Complainant Laign-Robbins, $905.85; Complainant Leggett, $10,871.65; Complainant Marshall, $631.92; Complainant Sturgeon, $1,633.08; and Complainant Whitmore, $4,335.84.
Objective evidence in support of a claim for pecuniary damages includes documentation showing actual out-of-pocket expenses with an explanation of the expenditure and, for non-pecuniary claims, statements from the complainant and others, including family members, co-workers, and medical professionals. See Compensatory and Punitive Damages Available Under Section 102 of the Civil Rights Act of 1991, EEOC Notice No. N915.002 (July 14, 1992) (Notice); Carle v. Department of the Navy, EEOC Appeal No. 01922369 (January 5, 1993). Awards are limited to compensation for the actual harm suffered as a result of the agency's discriminatory actions. See Carter v. Duncan-Higgans, Ltd., 727 F.2d 1225 (D.C. Cir. 1994); Notice at 13. The agency is only responsible for those damages that are clearly shown to be caused by the agency's discriminatory conduct. Carle v. Department of the Navy, supra.
The Agency asserts on appeal that the AJ erred when he granted most of Complainants' requested reimbursable expenses. The Agency asserts that many of the Complainants' costs are attributable to the damages associated with the Complainants' lawful removal, and therefore they should not be compensated for them.
As we noted earlier, the record indicates that Complainants' emotional and physical reactions on February 4, 2008, were the result of suffering years of harassment by their male coworker and their belief that this incident was another act of harassment by the male coworker. Further, the record indicates that "but for" the ongoing harassment and the Agency's continuous failure to address that harassment, the Complainants would not have had to seek medical help and assistance from a therapist as a group on or around February 4, 2008. Additionally, Complainants were not removed until March 25, 2008, April 1, 2008, and April 21, 2008, so the expenses related to the February 4, 2008 incident are not necessarily because of the later removal action. We find that the Agency did not establish that any of the costs awarded by the AJ were solely caused by the removal action and were not attributable to the ongoing harassment. Therefore, we affirm the AJ's award of costs to the Complainants.
Attorney's Fees
Complainants' attorneys requested $450,625 for attorneys' fees. Specifically, the attorneys requested compensation for 383.75 hours at rates of $350 and $200 per hour, and $23,502.21 for costs. The AJ reduced the requested fees by $100,000 because Complainants did not prevail on the removal claim. The AJ awarded $350,625 in attorneys' fees and $23,502.21 in costs. On appeal the Agency argues that the AJ erred in reducing the award by only $100,000 and that the reduction lacked reasoning.
Title VII authorizes the award of reasonable attorney's fees, including for an attorney's processing of a compensatory damages claim. 29 C.F.R. � 1614.501(e). To establish entitlement to attorney's fees, complainant must first show that he or she is a prevailing party. Buckhannon Bd. and Care Home Inc. v. West Virginia Dept. of Health and Human Resources, et al. 532 U.S. 598 (2001). A prevailing party for this purpose is one who succeeds on any significant issue, and achieves some of the benefit sought in bringing the action. Davis v. Dep't of Transportation, EEOC Request No. 05970101 (February 4, 1999) (citing Hensley v. Eckerhart, 461 U.S. 427, 433 (1983)).
The fee award is ordinarily determined by multiplying a reasonable number of hours expended on the case by a reasonable hourly rate, also known as a "lodestar." See 29 C.F.R. � 1614.501(e)(2)(ii)(B); Bernard v. Dep't of Veterans Affairs, EEOC Appeal No. 01966861 (July 17, 1998). In determining the number of hours expended the Commission recognizes that the attorney "is not required to record in great detail the manner in which each minute of his time was expended." Bernard, supra. However, the attorney does have the burden of identifying the subject matters which he spent his time by submitting sufficiently detailed and contemporaneous time records to ensure that the time spent was accurately recorded. Id.
Furthermore, the Commission weighs factors regarding cases as to whether there is justification for more than one attorney working on the same case, including the volume of pleadings filed in the case, the complexity involved in the case, the length of the hearing, and novel legal issues raised in the litigation. Katz v. Dep't of State, Appeal Nos. 0720060024, 0720060025 (March 26, 2009).
We note that the fact that a complainant did not prevail on every aspect of her complaint does not, in itself, justify a reduction in the hours expended where the claims are intertwined, making it impossible to segregate the hours involved in each claim. It is true that attorney fees may not be recovered for work on unsuccessful claims. Hensley v. Eckerhart, 461 U.S. 424, 433 (1983). However, courts have held that fee applicants should exclude time expended on "truly fractionable" claims or issues on which they did not prevail. See National Association of Concerned Veterans (NACV) v. Secretary of Defense, 675 F.2d 1319, 1337 n.13 (D.C. Cir. 1982). Claims are fractionable or unrelated when they involve "distinctly different claims for relief that are based on different facts and legal theories." Hensley, 461 U.S. at 434-35.
While Complainants were not successful on their removal claims, they were successful on their hostile work environment claims, which were inextricably intertwined to the events leading up to the removal. Additionally, the hostile work environment claims were the most material claims in the case. A review of the record does not reveal any wasted or duplicative work on behalf of Complainants' attorneys. This case was more complex than an average discrimination complaint because it involved seven complainants. Besides the voluminous motions and affidavits associated with this complaint, each Complainant had a full day deposition and Complainants' counsel deposed 15 additional witnesses. The liability hearing in this case lasted 12 days, and the damages hearing lasted an additional 6 days. Therefore, the AJ's reduction of attorney's fees by $100,000 (or approximately 22%) was reasonable, and no additional reductions are warranted. See Taylor v. United States Postal Service, EEOC Appeal No. 0720090036 (December 7, 2010) (AJ's reduction of attorney's fees by 15% is reasonable); Moresi v. Dep't of Homeland Security, EEOC Appeal No. 0720090049 (March 29, 2010) (An across the board 20% reduction in attorney's fees was reasonable).
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we REVERSE the Agency's final action. We ORDER the Agency to comply with the order below.
ORDER
The Agency, to the extent it has not already done so, is ordered to take the following remedial actions:
1. Within thirty (30) calendar days of the date this decision becomes final, pay Complainants the following compensatory damages:
a. Complainant Brunjes: $75,000 in non-pecuniary damages and $10,666.49 in pecuniary damages;
b. Complainant French: $75,000 in non-pecuniary damages and $9,732.32 in pecuniary damages;
c. Complainant Laign-Robbins: $45,000 in non-pecuniary damages and $905.85 in pecuniary damages;
d. Complainant Leggett: $75,000 in non-pecuniary damages and $10,871.65 in pecuniary damages;
e. Complainant Marshall: $60,000 in non-pecuniary damages and $631.92 in pecuniary damages;
f. Complainant Sturgeon: $75,000 in non-pecuniary damages and $1,633.08 in pecuniary damages;
g. Complainant Whitmore: $75,000 in non-pecuniary damages and $4,335.84 in pecuniary damages;
2. Within thirty (30) calendar days of the date this decision becomes final, pay Complainants $350,625 in attorney's fees and $23,502.21 for costs.
3. The Agency shall provide training to all management officials in the Hayes Post Office in Hayes, Virginia, regarding their responsibilities with respect to Title VII with special emphasis on preventing and responding to harassment and EEO anti-retaliation provisions.
4. The Agency shall consider taking appropriate disciplinary action against the responsible management officials. The Commission does not consider training to be disciplinary action. The Agency shall report its decision to the compliance officer. If the Agency decides to take disciplinary action, it shall identify the action taken. If the Agency decides not to take disciplinary action, it shall set forth the reason(s) for its decision not to impose discipline. If any of the responsible management officials have left the Agency's employ, the agency shall furnish documentation of their departure date(s).
5. The Agency shall post the attached notice of discrimination, as described 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 of the Agency's calculation of back pay and other benefits due complainant, including evidence that the corrective action has been implemented.
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.
POSTING ORDER (G0610)
The Agency is ordered to post at its Hayes Post Office in Hayes, Virginia 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 (H0610)
If Complainants have been represented by an attorney (as defined by 29 C.F.R. � 1614.501(e)(1)(iii)), they are 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.
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 (S0610)
You have the right to file a civil action in an appropriate United States District Court within ninety (90) calendar days from the date that you receive this decision. If you file a civil action, you must name as the defendant in the complaint the person who is the official Agency head or department head, identifying that person by his or her full name and official title. Failure to do so may result in the dismissal of your case in court. "Agency" or "department" means the national organization, and not the local office, facility or department in which you work. If you file a request to reconsider and also file a civil action, filing a civil action will terminate the administrative processing of your complaint.
RIGHT TO REQUEST COUNSEL (Z0610)
If you decide to file a civil action, and if you do not have or cannot afford the services of an attorney, you may request from the Court that the Court appoint an attorney to represent you and that the Court also permit you to file the action without payment of fees, costs, or other security. See Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e et seq.; the Rehabilitation Act of 1973, as amended, 29 U.S.C. �� 791, 794(c). The grant or denial of the request is within the sole discretion of the Court. Filing a request for an attorney 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
7/12/12
__________________
Date
1 We note that in the final order the Agency accepted the AJ's finding of discrimination but rejected the AJ's award of relief. The Agency did not provide any relief in the final action.
2 We note that all Complainants were subjected to the removal except for Complainant Laign-Robbins, who was not at work the day of the incident that led to the removal actions.
3 We note that Complainant Laign-Robbins was not at work on February 4, 2008, and therefore was not issued a removal.
4 We note that Complainant Marshall first went to the EAP therapist after the incident where the Complainants walked out of the Post Office on February 4, 2008. There is no medical evidence for Complainant Marshall prior to this date.
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0720110039
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0720110039