0720090050
09-17-2013
Lea M. Smith, Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service (Southeast Area), Agency.
Lea M. Smith,
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service
(Southeast Area),
Agency.
Appeal No. 0720090050
Hearing No. 410-2008-0147X-LL
Agency No. 4H-300-0246-07
DECISION
An EEOC Administrative Judge (AJ) found that the Agency failed to reasonably accommodate Complainant, in violation of Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq. The AJ awarded Complainant $120,000 in compensatory damages and $19,000 in attorney's fees. On July 22, 2009, the Agency issued a final order, rejecting the AJ's finding of discrimination. The Agency also timely filed an appeal, which the Commission accepts, under 29 C.F.R. � 1614.405(a). On appeal, the Agency requests that the Commission affirm (1) its rejection of the AJ's finding of discrimination, and (2) its rejection of the AJ's ordered relief. For the following reasons, we REVERSE the Agency's final order.
BACKGROUND
Previous Discrimination
Complainant previously worked as a City Carrier at the Riverdale Post Office in Georgia, where she was discriminatorily retaliated against. See Smith v. U.S. Postal Serv., EEOC Appeal No. 0720050022 (June 29, 2005) (upholding the EEOC AJ's finding that the Agency retaliated against Complainant when it removed her). The Agency's discriminatory actions caused Complainant to suffer from work-related stress, and she was diagnosed with major depression. As a result, she could work only in a collegial environment.
To accommodate her need to work in a collegial environment, the Agency offered Complainant a modified (limited duty) assignment on October 10, 2004. The assignment would place her in a different facility in Duluth, Georgia, where she would work in the Human Resources Department, filing, alphabetizing, and pulling official personnel folders, and answering the telephone. Complainant accepted the modified assignment, and she worked there for nearly three years.
Although in public Complainant appeared to be asymptomatic during this time, in private she continued to receive treatment for her mental impairments. For example, on March 19, 2007, her psychiatrist placed her on a treatment plan in which she would continue to take medications, attend therapy sessions, and receive stress management training, among other things.
Reassignment to Previous Facility
Complainant's modified assignment abruptly ended on July 3, 2007. On that day, management emailed Complainant and other employees, who were either detailed to unauthorized positions or served in rehabilitation or modified assignments, and told them to return to their regular assignments, effective July 4, 2007.
For Complainant, this meant returning to the Riverdale Post Office. She informed Agency officials that she could not return to the Riverdale Post Office because (1) it violated her medical restrictions, and (2) several of the employees who had previously retaliated against her still worked at the Riverdale Post Office.
The prospect of returning to the Riverdale Post Office, according to Complainant, stressed her to such an extent that she could not return to her former position on July 18, 2007, and instead sought psychiatric care.
Psychiatric Care and Medical Documentation
In an October 1, 2007 letter, Complainant's psychiatrist wrote that Complainant had severe Post Traumatic Stress Disorder and Panic Disorder. Her condition was initially caused by the previous discriminatory acts at the old facility, but then it stabilized after she began working in the modified assignment in the Human Resources Department.
After the Agency recalled Complainant to her old post, she suffered a relapse, in which her symptoms of extreme depression, anxiety, and Post Traumatic Stress Disorder returned. Specifically, she experienced a rapid deterioration and return of hopelessness, morbid depression, overwhelming anxiety, and a panicked state. The psychiatrist indicated that Complainant was going to recover, but emphasized that "she cannot and must not be allowed to return to her old post at the Riverdale Post Office."
On January 10, 2008, the psychiatrist certified that Complainant was able to return to work, so long as she did not go back to work at the Riverdale Post Office.
On January 25, 2008, Complainant's psychiatrist submitted additional information to support Complainant's request for accommodation. He reiterated that Complainant had been diagnosed with major depression, panic disorder, generalized anxiety disorder, and cautioned that Complainant was not to go back to Riverdale Post Office. The psychiatrist indicated that Complainant could work in a different post office under a different supervisor.
Agency's Denial of Request for Reasonable Accommodation
On February 8, 2008, the Agency's District Reasonable Accommodation Committee denied Complainant's request for reasonable accommodation. The Committee reasoned that Complainant was not an individual with a disability, because her medications mitigated the effects of her mental impairments to such an extent that she was not substantially limited in a major life activity.
Complainant eventually began working in a new job as a school bus driver in September 2008.
EEO Formal Complaint
Complainant filed a formal complaint, and the Agency accepted the following claim for investigation:
whether the Agency discriminated against Complainant on the bases of race (Black), sex (female), mental disability, and reprisal for prior EEO activity when on July 5, 2007, the Agency took Complainant out of her rehabilitation assignment and returned her to her job as a carrier.
At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation and notice of her right to request a hearing before an EEOC Administrative Judge (AJ). Complainant timely requested a hearing.
On May 21, 2008 and June 4, 2008, the AJ held a hearing on liability and damages, and issued a decision on April 2, 2009.1
AJ's Decision
First, the AJ found that Complainant was an individual with a mental disability, based on medical documentation showing that Complainant had preexisting major depression, post traumatic stress disorder, and generalized anxiety disorder.
Second, the AJ determined that Complainant was a qualified individual with a disability because she could perform the functions of her position with a reasonable accommodation (working in a collegial environment at a postal facility other than the Riverdale Post Office, which was the original cause and ongoing trigger for her mental impairments and symptoms).
Third, the AJ found that the Agency failed to provide Complainant with a reasonable accommodation when it ultimately placed her back at the Riverdale Post Office. The AJ initially noted that management was aware of the casual connection between Complainant's mental impairments and the discriminatory behavior that occurred at that particular post office. Further, management possessed ample medical documentation, indicating that Complainant was only to work in a collegial work environment. The AJ found that that management failed to consider any other alternatives of reasonable accommodations for Complainant, besides placing her in the Riverdale Post Office. The AJ found that, "Instead of seeking to find whether or not there was another position to place her in or some other type of accommodations through a reasonable accommodation committee or any other effort being made, the Agency just held fast to its decision to place her back at the Riverdale Post Office . . . ."
Fourth, the AJ concluded that the Agency failed to establish that reassigning Complainant elsewhere would have caused an undue hardship to the Agency.
For relief, the AJ awarded Complainant a total of $120,000 in compensatory damages. For pecuniary damages, the AJ considered the savings and investments that Complainant lost in order to pay her bills. For example, Complainant took a loan from her thrift savings plan of $3,800 to pay her bills. Her spouse testified that they sold their possessions to pay bills, lost savings and investments, and had investment properties foreclosed on. And they took money out of their children's college savings account to pay bills.
For non-pecuniary damages, the AJ considered Complainant's testimony that the Agency's decision to return her to the Riverdale Post Office caused her to experience a relapse in depression, anxiety, and post traumatic stress disorder. She gained weight, could not sleep. Her spouse testified that the Agency's actions negatively affected Complainant's relationship with her children, and her personal and sexual relations with him. At one point, the spouse moved out and sometimes slept in his car because of the arguments caused by Complainant's response to her being returned to the Riverdale Post Office and subsequent financial losses. Complainant stopped going out and stopped interacting with her family.
The AJ also awarded Complainant $19,000 in attorney's fees.
Additionally, the AJ ordered the Agency to:
* place Complainant back into a letter carrier position at an Agency facility other than the Riverdale Post Office that is within a reasonable driving distance from Complainant's home;
* pay back-pay from July 7, 2007 to the present, mitigated by Complainant's subsequent lower-paying job as a school bus driver;
* adjust all of Complainant's sick leave, annual leave, and any other benefits not limited to health insurance, life insurance, and thrift savings to reflect the leave she would have had, had her employment continued from July 7, 2007 to the present, and that back pay and restoration of benefits continue until Complainant is returned back to work as a letter carrier.
The Agency subsequently issued a July 22, 2009 final order, rejecting the AJ's finding that Complainant proved that the Agency subjected her to discrimination as alleged.
CONTENTIONS ON APPEAL
Agency's Contentions
a. Liability
At the outset, the Agency appears to suggest that the relevant time period for evaluating the correctness of the Agency's actions was on July 3, 2007, when the Agency decided to place Complainant back at the Riverdale Post Office. "[A]t the critical moment when the Service made its decision, a disability of whatever nature was not "known" to the Postal Service; and a duty to reasonably accommodate accordingly did not then arise."2 Agency Brief, at 6. Because the relevant time period was on July 3, 2007, and not afterwards when Complainant requested reasonable accommodation, the Agency argues that Complainant's subsequent submissions of medical documentation to the Agency were not relevant, because they "were obtained and proffered well after the Agency terminated Complainant's detail in July 2007." Id.
Even if Complainant's medical documents were timely and relevant, the Agency argues that those medical opinions should be discounted because they were based solely on subjective information given by Complainant, rather than independent assessments (such as personally visiting the Riverdale Post Office to assess whether the facility was a collegial work environment). "[A]ny individual that has practiced in the health care arena is aware that you can always find an individual that is willing to say what you want them to say to fit your case." Id. at 14.
The Agency maintains that the Riverdale staff that previously retaliated against Complainant "were either no longer there or were not in supervisory capacities." See id. at 10. According to the Agency, it is "nothing more than mere conjecture" for Complainant's physician to opine that Complainant would require psychiatric hospitalization if she were to return to Riverdale. Id. at 11. For support, the Agency references a decision by the Department of Labor, which rejected Complainant's claim of occupational injury due to the Agency's decision to place her back at Riverdale.
In its brief, the Agency also reiterates the District Reasonable Accommodation Committee's rationale for denying Complainant's reasonable accommodation request: her mental conditions of depression, post traumatic stress disorder, panic disorder, and generalized anxiety, treated with medication as described by her psychiatrist, did not render her substantially limited in a major life activity at that time. Therefore, she was not an individual with a disability.
The Agency further cites the testimony of its Associate Area Medical Director, who opined that Complainant did not meet the elements of post traumatic stress disorder. The Associate Area Medical Director stated that:
Treating depression and PTSD-especially PTSD, which is quite common for soldiers, airmen, seamen and marines now that are performing tours in Iraq and Afghanistan is fairly routine. However, any hostile environment that [Complainant] may have encountered at the Riverdale Post office over seven (7) years ago is definitely not the caliber of the environment encountered in Iraq or Afghanistan. Any such diagnosis that is not supported by any medical foundation is preposterous.
Id. at 14-15.
In addition, the Agency faults Complainant for not requesting a transfer to another facility via the bid process (which the Agency maintains it would have honored), and instead pursuing reassignment through the reasonable accommodation process. Id. at 12-13. The Agency suggests that reassigning Complainant as a reasonable accommodation "without going through the bid process would constitute a violation of the Collective Bargaining Agreement." Id. at 9.
The Agency further defends its actions by stating that management articulated a legitimate, nondiscriminatory reason for placing Complainant back at the Riverdale Post Office on July 3, 2007: the Agency terminated all unauthorized details as requested by the Southeast Area Vice President due to a $2.6 million deficit.
b. Remedies
The Agency maintains that the AJ erred in awarding compensatory damages to Complainant because the Agency made a good faith effort in considering Complainant's request for accommodation by providing a proceeding before the District Reasonable Accommodation Committee.
It also argued that the AJ erred in awarding attorney's fees because Complainant's attorney did not submit a verified petition.
Finally, the Agency argues that the $120,000 compensatory damages award was monstrously excessive, and instead cited cases that awarded between $5,000 to $60,000.
Complainant's Contentions
a. Liability
In response to the Agency's arguments on appeal, Complainant maintains that there was substantial evidence in the record to support the AJ's finding that the Agency denied Complainant a reasonable accommodation. Hearing testimony indicates that Complainant missed work from 2002 to 2005 because she suffered from acute stress disorder resulting from retaliatory conduct at the Riverdale Post Office. Complainant testified that when she suffers panic attacks, she cannot perform functions necessary to live a normal life and those necessary to provide for her family. Hearing Transcript, at 59. Accordingly, Complainant's mental condition constituted a disability that substantially affected her major life activities of caring for herself and working.
Complainant also testified at the hearing that after being notified that she had to report to Riverdale, she told the Acting Manager of Human Resources that she could not do so because of her disability. Id. at 35. The Acting Manager of Human Resources informed her that the matter was out of his hands and told her to report to Riverdale as instructed despite her restrictions. Id. at 35-36. The Acting Manager took such action regardless of Complainant's disability and restrictions and with knowledge that two of the supervisors who had previously retaliated against Complainant were still working in supervision at the Riverdale Post Office. Id. at 36-37.
Complainant maintains that she provided sufficient medical documents from her physicians, who clearly articulated Complainant's medical condition and mandated that she be assigned to work outside the Riverdale Post Office. Complainant argues that her medical documentation constitutes substantial evidence to support the AJ's finding that she was an individual with a disability. The Agency's argument that there was no substantial evidence because the physicians did not testify at the hearing, but instead provided medical statements is not supported by any case law. Complainant further notes that the Agency did not make any attempt to depose her physicians in this case. "Consequently, the Agency did not feel the ability to question [Complainant's] physicians was critical until after an adverse decision was issued in this matter."
Finally, Complainant's attorney notes that whether the Agency had a legitimate, nondiscriminatory reason for returning Complainant back to Riverdale is not relevant in analyzing a denial of reasonable accommodation claim.
b. Remedies
Complainant argues that there is substantial evidence in the record to support a finding that the Agency did not make a good faith effort to accommodate her. The fact that the Agency belatedly assembled a District Reasonable Accommodation Committee, in which Complainant did not participate in and had no knowledge of, cannot immunize the Agency from being liable for compensatory damages.
Complainant maintains that there is substantial evidence to support the AJ's award of $120,000 in compensatory damages. And on the matter of attorney's fees, Complainant's attorney disputes the Agency's contention that he did not submit a verified fee petition. During the damages hearing on April 2, 2009, Complainant submitted a request for damages, which included an approximated request for $19,000.00 in attorney's fees. On that day, the AJ held the record open to allow the parties to try to settle this matter before she issued her decision. As a result, Complainant's attorney did not submit an attorney fee request during the negotiation process.
Ultimately, the parties were not able to settle the case, so the AJ granted Complainant's request for damages, including the estimated $19,000 in attorney's fees. Afterward, Complainant's attorney submitted to the Agency a verified fee petition on June 25, 2009, requesting $19,704.00 in fees. A copy of the fee petition is attached to Complainant's appellate brief.
ANALYSIS AND FINDINGS
Standard of Review
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).
Reasonable Accommodation
Under the Commission's regulations, federal agencies may not discriminate against individuals with disabilities and are required to make reasonable accommodations for the known physical and mental limitations of qualified individuals with disabilities, unless an Agency can show that reasonable accommodation would cause an undue hardship. See 29 C.F.R. �� 1630.2(o) and (p).
To establish that she was denied a reasonable accommodation, Complainant must show that: (1) she is an individual with a disability, as defined by 29 C.F.R. � 1630.2(g); (2) she is a "qualified" individual with a disability, pursuant to 29 C.F.R. � 1630.2(m); and (3) the Agency failed to provide a reasonable accommodation. See EEOC Enforcement Guidance on Reasonable Accommodation and Undue Hardship under the Americans with Disabilities Act, EEOC No. 915.002 (October 17, 2002).
a. Individual with a Disability
Complainant can show that she is an individual with a disability by demonstrating that she has a physical or mental impairment that substantially limits one or more major life activities. 29 C.F.R. � 1630.2(g)(1). A mental impairment can be "any mental or psychological disorder, such as . . . emotional or mental illness." 29 C.F.R. � 1630.2(h)(2). Examples of emotional or mental illnesses include major depression and anxiety disorders (which include panic disorder, obsessive compulsive disorder, and post-traumatic stress disorder). EEOC Enforcement Guidance on the Americans with Disabilities Act and Psychiatric Disabilities, EEOC No. 915.002 (March 25, 1997).
Chronic, episodic conditions may constitute substantially limiting impairments if they are substantially limiting when active or have a high likelihood of recurrence in substantially limiting forms. Id., at Question 8. For some individuals, psychiatric impairments such as major depression may remit and intensify, sometimes repeatedly, over the course of several months or several years. Id.
After review, the Commission finds the record to be incomplete: it is missing the transcript of the first day of the hearing, May 21, 2008, when Complainant and her witnesses testified. In July and August 2013, the Commission requested that the Agency produce the full hearing transcript of these proceedings, but the Agency was only able to send the hearing transcript for the afternoon session on June 4, 2008, and the damages hearing. Therefore, the record contains no hearing testimony from either Complainant or any of her witnesses.
When determining whether a particular individual has a substantially limiting impairment, a fact finder must examine evidence about how the impairment affects that individual. Relevant evidence includes descriptions of an individual's typical level of functioning at home, at work, and in other settings, as well as evidence showing that the individual's functional limitations are linked to her impairment. Expert testimony about substantial limitation is not necessarily required. Credible testimony from the individual with a disability and her family members, friends, or coworkers may suffice. EEOC Enforcement Guidance on the Americans with Disabilities Act and Psychiatric Disabilities, EEOC No. 915.002 (March 25, 1997).
Because the record in this case is missing the testimony of Complainant and her witnesses, we are unable to examine all of the relevant evidence that was presented by Complainant to show that her chronic psychiatric impairments substantially limited her in any major life activity, such as caring for herself, interacting with others, and concentrating.
Under 29 C.F.R. � 1614.404(c), the Commission may sanction a party to an appeal who fails without good cause shown to respond fully to requests for information. In appropriate circumstances, the Commission may, among other things, draw an adverse inference that the requested information would have reflected unfavorably on the party refusing to provide the requested information; or consider the matters to which the requested information or testimony pertains to be established in favor of the opposing party. Id.
Because the Agency failed to produce the complete hearing transcript, and has only stated that it could not locate the rest of the transcript, we find it proper to sanction the Agency for depriving the Commission of the opportunity to review all of Complainant's hearing testimony. We find it appropriate to draw an adverse inference against the Agency that the missing hearing transcript (Complainant's testimony), would have established that her psychiatric impairments substantially limited her in a major life activity, such as caring for herself and interacting with others,3 and that such testimony (specifically referenced by Complainant's attorney in his opposition brief) would constitute substantial evidence to support the AJ's finding that Complainant was an individual with a disability.
b. Qualified Individual with a Disability
After Complainant has demonstrated that she is an individual with a disability, she must then show that she is a "qualified individual with a disability," an individual who satisfies the requisite skill, experience, education, and other job-related requirements of the employment position and who, with or without reasonable accommodation, can perform the essential functions of such position. 29 C.F.R. � 1630.2(m).
Here, neither party disputes that Complainant can perform the essential functions of either a carrier position, or her modified position, with a reasonable accommodation (working in a collegial environment outside of the Riverdale facility).4
c. Reassignment as a Reasonable Accommodation and Undue Hardship
In general, reassignment must be considered as a reasonable accommodation when accommodation in the present job would either (1) not be possible or (2) cause undue hardship. Reassignment should be made to an equivalent position that is vacant or will become vacant within a reasonable amount of time. If an equivalent position is not available, the employer must look for a vacant position at a lower level for which the employee is qualified. Reassignment is not required if a vacant position at a lower level is also unavailable. EEOC Enforcement Guidance on the Americans with Disabilities Act and Psychiatric Disabilities, EEOC No. 915.002, at Question 29 (March 25, 1997).
Here, there is substantial evidence indicating that it was not possible to accommodate Complainant as a carrier at the Riverdale facility; therefore, the Agency should have considered reassignment to a different facility as a reasonable accommodation. Complainant's physicians clearly and repeatedly indicated that Complainant could not work at the Riverdale facility because it triggered symptoms of Complainant's existing mental impairments, and that she needed to be reasonably accommodated by being reassigned to work elsewhere. We note that the Agency's appellate brief suggests that there were other vacant funded positions available at that time, but Complainant had simply failed to bid on them, according to the collective bargaining agreement.
An agency does not have to provide a reasonable accommodation that would cause an "undue hardship." EEOC Enforcement Guidance on Reasonable Accommodation and Undue Hardship under the Americans with Disabilities Act, EEOC Notice No. 915.002, at 58 (October 17, 2002). An agency cannot support a claim of undue hardship by merely providing generalized conclusions. Id. Instead, an agency must provide an individualized assessment of current circumstances that show that a specific reasonable accommodation would cause significant difficulty or expense. Id.
To determine whether there is undue hardship, we examine several factors, including the impact of the accommodation on the operation of the facility. Id. at 58-59; 29 C.F.R. � 1630.2(p)(2)(v).
Here, the Agency implicitly argues that it could not accommodate Complainant because of downsizing and budgetary issues, and that reassigning Complainant would have created an undue hardship on its operations. This assumption is not supported by any evidence in the record, since the Agency conceded in its brief that Complainant could have worked elsewhere if she had only adhered to the collective bargaining agreement and proactively bid on those assignments, rather than request them through the reasonable accommodation process. We find that this mere assertion does not satisfy the Agency's burden of proving undue hardship.
d. Agency's Liability for Compensatory Damages
In the federal sector EEO administrative process, an agency that fails to provide a reasonable accommodation (and does not have a valid defense of undue hardship) generally is liable for compensatory damages.5 But an agency can avoid liability for compensatory damages if it demonstrates that it made a good faith effort to accommodate the complainant's disability. See EEOC Enforcement Guidance on Reasonable Accommodation and Undue Hardship Under the Americans With Disabilities Act, EEOC No. 915.002, at 13, n.24, (Oct. 17, 2002); Guilbeaux v. U.S. Postal Serv., EEOC Appeal No. 0720050094 (Aug. 6, 2008). An agency can demonstrate that it made a good faith effort by proving that, in consultation with the complainant, it attempted to identify and make a reasonable accommodation. Id.
As noted above, the record is incomplete because it is missing all of Complainant's hearing testimony to establish liability. Therefore, we cannot evaluate all the relevant testimony to determine whether Complainant and the Agency engaged in the interactive process, or whether the Agency reflexively dismissed Complainant's accommodation request and carried out its decision to return Complainant to the Riverdale Post Office.
As such, we again find it proper to sanction the Agency for failing to provide the complete hearing transcript, by drawing an adverse inference against the Agency. Specifically, we will infer that the missing hearing transcript (Complainant's testimony) would constitute substantial evidence that management officials failed to properly process Complainant's reasonable accommodation request, failed to engage in the interactive process with Complainant, and failed to conduct an actual search for other vacant, funded positions that Complainant could do. As for the Agency's assembly of a District Reasonable Accommodation Committee (DRAC) to consider Complainant's reasonable accommodation request, Complainant testified near the end of the second day of the liability hearing that she was not notified about the DRAC, and did not attend the DRAC meeting. Nor could any available management official actually explain how the formation of the DRAC came about. Therefore, we find that the Agency did not make a good faith effort to accommodate Complainant.
Accordingly, the Commission finds that there is substantial evidence in the record to support the AJ's determination that the Agency's denial of Complainant's reasonable accommodation request violates the Rehabilitation Act.
Compensatory Damages
Now we turn to the Agency's appeal of the AJ's award of $120,000 in compensatory damages. We note that it does not challenge Complainant's alleged harm nor the evidence offered in support of his claim for damages. Rather, the Agency disputes the AJ's award based on the severity of complainant's injuries which were significantly less than those cited in the decision by the AJ.
Pursuant to section 102(a) of the Civil Rights Act of 1991, a Complainant who establishes his or her claim of unlawful discrimination may receive, in addition to equitable remedies, compensatory damages for past and future pecuniary losses (i.e., out of pocket expenses) and non-pecuniary losses (e.g., pain and suffering, mental anguish). 42 U.S.C. � 1981a(b)(3). For an employer with more than 500 employees, such as this agency, the limit of liability for future pecuniary and non-pecuniary damages is $300,000.00. Id. In West v. Gibson, 527 U.S. 212 (1999), the Supreme Court held that the Commission has the authority to award compensatory damages in the federal sector EEO process.
The particulars of what relief may be awarded, and what proof is necessary to obtain that relief, are set forth in detail in EEOC's Enforcement Guidance, Compensatory and Punitive Damages Available Under Section 102 of the Civil Rights Act of 1991 (July 14, 1992) (Guidance). Briefly stated, the complainant must submit evidence to show that the Agency's discriminatory conduct directly or proximately caused the losses for which damages are sought. Id. at 11-12, 14; Rivera v. Dep't. of the Navy, EEOC Appeal No. 01934157 (July 22, 1994). The amount awarded should reflect the extent to which the Agency's discriminatory action directly or proximately caused harm to the complainant and the extent to which other factors may have played a part. Guidance at 11-12. The amount of non-pecuniary damages should also reflect the nature and severity of the harm to the Complainant, and the duration or expected duration of the harm. Id. at 14.
In Carle v. Dep't. of the Navy, the Commission explained that 'objective evidence' of non-pecuniary damages could include a statement by the Complainant explaining how he or she was affected by the discrimination. EEOC Appeal No. 01922369 (January 5, 1993). Statements from others, including family members, friends, and health care providers could address the outward manifestations of the impact of the discrimination on the Complainant. Id. The complainant could also submit documentation of medical or psychiatric treatment related to the effects of the discrimination. Id. However, evidence from a health care provider is not a mandatory prerequisite to establishing entitlement to non pecuniary damages. Sinnott v. Dep't of Defense, EEOC Appeal No. 01952872 (September 19, 1996).
The Commission applies the principle that 'a tortfeasor takes its victims as it finds them.' Wallis v. U.S Postal Service, EEOC Appeal No. 01950510 (November 13, 1995) (quoting Williamson v. Handy Button Machine Co., 817 F.2d 1290, 1295 (7th Cir. 1987). The Commission also applies two exceptions to this general rule. First, when a complainant has a pre-existing condition, the agency is liable only for the additional harm or aggravation caused by the discrimination. Second, if the complainant's pre-existing condition inevitably would have worsened, the agency is entitled to a reduction in damages reflecting the extent to which the condition would have worsened even absent the discrimination; the burden of proof being on the Agency to establish the extent of this entitlement. Wallis, EEOC Appeal No. 01950510 (citing Maurer v. United States, 668 F.2d 98 (2d Cir.1981); Finlay v. U.S. Postal Service, EEOC Appeal No. 01942985 (April 29, 1997). The Commission notes, however, that Complainant is entitled to recover damages only for injury, or additional injury, caused by the discriminatory removal. Terrell v. Department. of Housing and Urban Development, EEOC Appeal No. 01961030 (October 25, 1996); EEOC Notice No. N 915.002 at 12.
Non-pecuniary damages are available to compensate the injured party for actual harm, even where the harm is intangible. Carter v. Duncan-Higgins, Ltd., 727 F.2d 1225 (D.C. Cir. 1984). Emotional harm will not be presumed simply because the complainant is a victim of discrimination. See Guidance at 5. The existence, nature, and severity of emotional harm must be proved. Id. The method for computing non-pecuniary damages should typically be based on a consideration of the severity and duration of harm. Carpenter v. Department of Agriculture, EEOC Appeal No. 01945652 (July 17, 1995); Guidance at 8. We note that for a proper award of non-pecuniary damages, 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 Ward-Jenkins v. Department of the Interior, EEOC Appeal No. 01961483 (March 4, 1999) (citing Cygnar v. City of Chicago, 865 F.2d 827, 848 (7th Cir. 1989)).
There is no precise formula by which to calculate nonpecuniary damages. AJ's are necessarily afforded broad discretion in determining such damage awards. To be sustained on appeal an award of non-pecuniary damages 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 Ward-Jenkins v. Dep't of the Interior, EEOC Appeal No. 01961483 (March 4, 1999) (citing Cygnar v. City of Chicago, 865 F.2d 848 (7th Cir. 1989)).
The AJ's award of $120,000 is supported by substantial evidence and is not excessive. There is no basis for finding that the amount is "monstrous" or the result of passion or prejudice.
The Commission finds that the AJ properly determined that Complainant established a causal nexus between the harm and the discrimination. The record establishes that the Agency's discriminatory action was the proximate cause of her emotional and financial problems, including depression, anxiety, post traumatic stress disorder, insomnia, panic attacks, social isolation, withdrawal from relationships, weight-gain, severe strains in his relationships with those close to her, and severe financial hardship.
The Commission has awarded comparable amounts in other cases where the Agency's discriminatory conduct has caused serious depression and other adverse psychological and physical conditions. See e.g. Furch v. Dep't of Agriculture, EEOC Appeal No. 07A40094 (August 5, 2005) ($150,000.00 in non-pecuniary damages where Complainant suffered from depression, loss of enjoyment of life, interference with family relationships, permanent diminishment in quality of her life, and physical symptoms.); Franklin v. U.S. Postal Service, EEOC Appeal No. 07A00025 (January 19, 2001) ($150,000 in non-pecuniary damages awarded where as a result of the Agency's actions, Complainant experienced extensive symptoms of emotional distress, resulting in changes in complainant's personality, the ending of his marriage, and diminished enjoyment of life).
Accordingly, we find that the amount of $120,000 is appropriate in this case.
In addition to compensatory damages, Complainant is entitled to various equitable remedies as part of her "make whole" relief. The Agency did not dispute the award of equitable relief recommended by the AJ, including adjustment from July 7, 2007 to present of all sick leave, annual leave, and all benefits not limited to life insurance, health insurance, thrift savings, and back pay mitigated by Complainant's employment with the Cobb County School District.
Attorney's Fees
The Commission, an Agency, or an AJ may award Complainant reasonable attorney's fees and other costs incurred in the processing of a complaint regarding allegations of discrimination in violation of the Rehabilitation Act. 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. See Buckhannon Bd. and Care Home Inc. v. West Virginia Dep't of Health and Human Resources, 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. See Davis v. Dep't of Transportation, EEOC Request No. 05970101 (February 4, 1999) (citing Henslev v. Eckerhart, 461 U.S. 427, 433 (1983)). A finding of discrimination raises a presumption of entitlement to an award of attorney's fees. 29 C.F.R. � 1614.501(e)(i).
Attorney's fees shall be paid for services performed by an attorney after filing of a written complaint. Id. An award of attorney's fees is determined by calculating the loadstar, i.e., by multiplying a reasonable hourly fee times a reasonable number of hours expended. Hensley, at 433; 29 C.F.R. � 1614.501(e)(2)(ii)(B). "There is a strong presumption that this amount represents the reasonable fee." 29 C.F.R. 1614.501(e)(2)(ii)(B). A reasonable hourly fee is the prevailing market rate in the relevant community. Blum v. Stenson, 465 U.S. 886 (1984). A petition for fees and costs must take the form of a verified statement required by the Commission's regulations at 29 C.F.R. � 16l4.501(e)(2)(i).
Attorney's fees may not be recovered for work on unsuccessful claims. Hensley, at 434. Courts have held that fee applicants should exclude time expended on "truly fractionable" claims or issues on which they did not prevail. See Nat'l Ass'n of Concerned Veterans v. Secretary of Defense, 675 F.2d 1319, 1327 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 435. However, in cases where a claim for relief involves "a common core of facts or will be based on related legal theories" a fee award should not be reduced simply because the plaintiff failed to prevail on every contention raised in the lawsuit. Id. "The hours spent on unsuccessful claims should be excluded in considering the amount of a reasonable fee only where the unsuccessful claims are distinct in all respects from the successful claims." See EEO MD-110, Ch. 11, Sect. 6 (A)(7) (citation omitted).
At the outset, we note that Complainant succeeded on obtaining a finding of discrimination based on disability. Moreover, Complainant successfully obtained relief in the form of compensatory damages based on this finding of discrimination. Thus, we find Complainant is considered a prevailing party and is entitled to reasonable attorney's fees and costs for the work done by his attorneys on this case.
Here, the record contains evidence of a verified statement of costs that Complainant's attorney submitted to the Agency for consideration.
In his verified statement, Complainant's attorney stated that his normal hourly rate is $300.00 an hour. We note that Complainant's attorney has extensive experience in the practice of labor law extending from 1987 to the present day. Complainant's attorney worked for the US Postal Service representing the Agency in employment discrimination cases from 1987 to 2001, and was promoted to a supervisory labor attorney position from 1999 to 2001.
Therefore, the Commission finds that the AJ's determination of granting Complainant's attorney $19,000.00 in attorney's fees on this case for 65.68 hours of work at $300 an hour is reasonable and supported by the record.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, the Commission discerns no basis to disturb the AJ's findings. We find that the findings of fact are supported by substantial evidence, and the AJ correctly applied the appropriate regulations, policies, and laws. Moreover, we further find that given the specific facts in this case, the AJ's remedial award is appropriate.
ORDER
Within one hundred and twenty (120) calendar days of this decision becoming final, the Agency is ordered to take the following remedial action:
1. Complainant's sick leave and annual leave shall be restored.
2. Complainant shall be awarded $120,000 in compensatory damages.
3. Complainant's attorney shall be awarded $19,000 in attorney's fees.
4. Complainant shall be placed in a vacant funded position as a letter carrier at a facility other than Riverdale post office within a reasonable driving distance from Complainant's home.
5. Complainant's benefits not limited to health insurance, life insurance, and thrift savings shall be adjusted to reflect what she would have had, had her employment continued from July 7, 2007 to present.
6. Complainant shall receive back pay to be calculated by the Agency from July 7, 2007 to present.
7. The Agency shall provide eight (8) hours of EEO training to the Acting Manager of Human Resources, the members of the District Reasonable Accommodation Committee that evaluated Complainant's case and the Associate Area Medical Director regarding their responsibilities under EEO laws, particularly the Rehabilitation Act.
8. The Agency shall consider taking appropriate disciplinary action against the above 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 above officials have left the Agency's employ, the Agency shall furnish documentation of their departure dates.
The Agency is further directed to submit a report of compliance, as provided in the statement entitled "Implementation of the Commission's Decision." The report shall include supporting documentation verifying that the corrective action has been implemented.
POSTING ORDER (G0610)
The Agency is ordered to post at its Riverdale Post Office 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 Complainant has been represented by an attorney (as defined by 29 C.F.R. � 1614.501(e)(1)(iii)), she is entitled to an award of reasonable attorney's fees incurred in the processing of the complaint. 29 C.F.R. � 1614.501(e). The award of attorney's fees shall be paid by the Agency. The attorney shall submit a verified statement of fees to the Agency -- not to the Equal Employment Opportunity Commission, Office of Federal Operations -- within thirty (30) calendar days of this decision becoming final. The Agency shall then process the claim for attorney's fees in accordance with 29 C.F.R. � 1614.501.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0610)
Compliance with the Commission's corrective action is mandatory. The Agency shall submit its compliance report within thirty (30) calendar days of the completion of all ordered corrective action. The report shall be submitted to the Compliance Officer, Office of Federal Operations, Equal Employment Opportunity Commission, P.O. Box 77960, Washington, DC 20013. The Agency's report must contain supporting documentation, and the Agency must send a copy of all submissions to the Complainant. If the Agency does not comply with the Commission's order, the Complainant may petition the Commission for enforcement of the order. 29 C.F.R. � 1614.503(a). The Complainant also has the right to file a civil action to enforce compliance with the Commission's order prior to or following an administrative petition for enforcement. See 29 C.F.R. �� 1614.407, 1614.408, and 29 C.F.R. � 1614.503(g). Alternatively, the Complainant has the right to file a civil action on the underlying complaint in accordance with the paragraph below entitled "Right to File a Civil Action." 29 C.F.R. �� 1614.407 and 1614.408. A civil action for enforcement or a civil action on the underlying complaint is subject to the deadline stated in 42 U.S.C. 2000e-16(c) (1994 & Supp. IV 1999). If the Complainant files a civil action, the administrative processing of the complaint, including any petition for enforcement, will be terminated. See 29 C.F.R. � 1614.409.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0610)
The Commission may, in its discretion, reconsider the decision in this case if the Complainant or the Agency submits a written request containing arguments or evidence which tend to establish that:
1. The appellate decision involved a clearly erroneous interpretation of material fact or law; or
2. The appellate decision will have a substantial impact on the policies, practices, or operations of the Agency.
Requests to reconsider, with supporting statement or brief, must be filed with the Office of Federal Operations (OFO) within thirty (30) calendar days of receipt of this decision or within twenty (20) calendar days of receipt of another party's timely request for reconsideration. See 29 C.F.R. � 1614.405; Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at 9-18 (November 9, 1999). All requests and arguments must be submitted to the Director, Office of Federal Operations, Equal Employment Opportunity Commission, P.O. Box 77960, Washington, DC 20013. In the absence of a legible postmark, the request to reconsider shall be deemed timely filed if it is received by mail within five days of the expiration of the applicable filing period. See 29 C.F.R. � 1614.604. The request or opposition must also include proof of service on the other party.
Failure to file within the time period will result in dismissal of your request for reconsideration as untimely, unless extenuating circumstances prevented the timely filing of the request. Any supporting documentation must be submitted with your request for reconsideration. The Commission will consider requests for reconsideration filed after the deadline only in very limited circumstances. See 29 C.F.R. � 1614.604(c).
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (R0610)
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 (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
___9/17/13_______________
Date
1 The Commission was not provided any transcripts from the session held on May 21, 2008. An examination of the record indicates that there was a morning and an afternoon session of the hearing on June 4, 2008. The Agency provided a copy of the afternoon session, but not the morning session. We note that page 4 of the transcript that we were provided indicates that the proceedings started at 1:15 p.m. Page 144, however, indicates that Complainant was being "recalled" to testify and reminded that "she was still under oath." A fair reading of both of these pages indicates that there was an earlier session that morning, where Complainant testified. The Office of Federal Operations repeatedly requested that the Agency produce the full hearing transcript of these proceedings but Agency officials after searching only provided the afternoon session for June 4, 2008, which it had already given the Commission. According to Agency officials, there was no evidence of an earlier session of the hearing.
2 On page 9 of its brief, the Agency further suggests that "a request from a health care provider is not a legitimate request for reasonable accommodation due to the fact that the health care provide is not the complainant's representative."
3 During the damages hearing, Complainant's attorney was mindful of avoiding "some overlap in the damages testimony as opposed to the testimony for liability." Damages Hearing Transcript, at 16-17. What little testimony we have from Complainant during the damages hearing was that she suffered severe panic attacks, anxiety attacks, and could not sleep after being notified of her placement back at Riverdale. She testified that she stopped going out and interacting with her family. Id. at 25.
4 For example, the acting manager of Human Resources testified that Complainant physically could perform the work of a carrier. Liability Hearing Transcript, at 40.
5 Pursuant to section 102(a) of the Civil Rights Act of 1991, a complainant who establishes his claim of discrimination may receive, in addition to equitable remedies, compensatory damages for past and future pecuniary losses (i.e., out of pocket expenses) and non-pecuniary losses (e.g., pain and suffering, mental anguish). 42 U.S.C. � 1981a(b)(3). For an employer with more than 500 employees, such as the Agency, the limit of liability for future pecuniary and non-pecuniary damages is $300,000. Id.
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U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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