01A03636
10-11-2002
Michele Hayes, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Michele Hayes v. United States Postal Service
01A03636
October 11, 2002
.
Michele Hayes,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A03636
Agency No. 1C-441-1018-94
DECISION
The complainant timely initiated an appeal from a final agency decision
(FAD) concerning her complaint of unlawful employment discrimination
in violation of Title VII of the Civil Rights Act of 1964 (Title VII),
as amended, 42 U.S.C. � 2000e et seq. The appeal is accepted pursuant
to 29 C.F.R. � 1614.405. For the following reasons, the Commission
reverses the agency's final decision rejecting the complainant's request
for compensatory damages in its entirety.
The record reveals that during the relevant time, complainant was
employed as a clerk at its general mail facility in Cleveland, Ohio.
Complainant sought EEO counseling and subsequently filed a formal
complaint on October 25, 1994, alleging that she was subjected to a
hostile work environment by a co-worker who stuck his tongue in her ear
and that management took no action against the co-worker.
The Commission found that the agency was liable for the single
incident of harassment and ordered inter alia, that the agency conduct a
supplemental investigation on the issue of the complainant's entitlement
to compensatory damages for any expenses she incurred or any emotional
distress she suffered as a result of the incident. Hayes v. United
States Postal Service, EEOC Appeal No. 01954703 (January 23, 1998).
On March 23, 2000, the agency issued its final decision on the issue of
compensatory damages rejecting the complainant's request in its entirety.
It is from this decision that the complainant now appeals. On appeal,
the complainant makes no arguments. The agency requests that we affirm
its FAD.
Section 102(a) of the Civil Rights Act of 1991 (the CRA 1991), Stat. 1071,
Pub. L. No. 102-166, codified as 42 U.S.C. � 1981a, authorizes an award of
compensatory damages as part of the "make whole" relief for intentional
discrimination in violation of Title VII of the Civil Rights Act of
1964, as amended. Section 1981a(b)(2) indicates that compensatory
damages do not include back pay, interest on back pay, or any other
type of equitable relief authorized by Title VII. Section 1981a(b)(3)
limits the total amount of compensatory damages that may be awarded
to each complaining party for future pecuniary losses, emotional pain,
suffering, inconvenience, mental anguish, loss of enjoyment of life, and
other nonpecuniary losses, according to the number of persons employed
by the respondent employer. The limit for an employer with more than 500
employees, such as the agency, is $300,000. 42 U.S.C. � 1981a(b)(3)(D).
To receive an award of compensatory damages, a complainant must
demonstrate that he or she has been harmed as a result of the agency's
discriminatory action; the extent, nature, and severity of the harm; and
the duration or expected duration of the harm. Rivera v. Department
of the Navy, EEOC Appeal No. 01934157 (July 22, 1994) req. for
recons. den. EEOC Request No. 05940927 (December 11, 1995); Compensatory
and Punitive Damages Available Under Section 102 of the Civil Rights
Act of 1991, EEOC Notice No. 915.002 (July 14, 1992), at 11-12, 14.
Compensatory damages may be awarded for the past pecuniary losses,
future pecuniary losses, and non-pecuniary losses which are directly or
proximately caused by the agency's discriminatory conduct. Compensatory
and Punitive Damages Available Under Section 102 of the Civil Rights Act
of 1991, EEOC Notice No. 915.002 (July 14, 1992), at 8. Pecuniary losses
are out-of-pocket expenses that are incurred as a result of the employer's
unlawful action, including job-hunting expenses, moving expenses,
medical expenses, psychiatric expenses, physical therapy expenses, and
other quantifiable out-of-pocket expenses. Id. Past pecuniary losses
are the pecuniary losses that are incurred prior to the resolution of
a complaint via a finding of discrimination, an offer of full relief,
or a voluntary settlement. Id. at 8-9. Future pecuniary losses
are losses that are likely to occur after resolution of a complaint.
Id. at 9. Nonpecuniary losses are losses that are not subject to precise
quantification, including emotional pain, suffering, inconvenience, mental
anguish, loss of enjoyment of life, injury to professional standing,
injury to character and reputation, injury to credit standing, and loss
of health. Id.
A compensatory damages award should fully compensate a complainant for
the harm caused by the agency's discriminatory action even if the harm
is intangible. Id. at 13. Thus, a compensatory damages award should
reimburse a complainant for proven pecuniary losses, future pecuniary
losses, and non-pecuniary losses. A complainant has a duty to mitigate
his or her pecuniary damages. Id. at 9. If a respondent can prove that
a complainant failed to mitigate pecuniary damages, the damages award
should be reduced to reflect all losses that could have been avoided
by the exercise of reasonable diligence. Id. at 9-10. There are no
precise formulae for determining the amount of damages payable for
non-pecuniary losses. Damage awards for non-pecuniary losses that
have been assessed by juries and courts have varied substantially from
one another. Id. at 13. However, an award of compensatory damages
for non-pecuniary losses, including emotional harm, should reflect
the extent to which the respondent's discriminatory action directly or
proximately caused the harm and the extent to which other factors also
caused the harm. Id. at 11-12. An award of compensatory damages for
non-pecuniary losses should also reflect the nature and severity of the
harm and the duration or expected duration of the harm. Id. at 14.
Based on a thorough review of the record, we agree with the agency
that the complainant is not entitled to pecuniary damages. We find,
however, that the record shows that the complainant did suffer shame,
embarrassment, stress and headaches. The complainant averred that
she suffered shame, embarrassment and headaches whenever she saw the
co-worker who had perpetrated the harassment. She also averred that she
and her husband, who eventually left her, argued constantly about the
incident, that she could not perform her wifely duties and was withdrawn
and angry at him. She further averred that when the co-worker was finally
transferred to another facility, she feared he might attempt to harm her.
Although the complainant did not submit medical evidence supporting her
medical ailments, she submitted statements from family and friends which
attest to her depression and withdrawal. A neighbor's statement also
establishes the complainant's state of panic about the incident.
Having determined that the complainant proved that she suffered
emotional distress causally connected to the agency's actions, we must
determine the amount of nonpecuniary damages to be awarded for that harm.
In determining the amount of the award, we are guided by the principle
that a compensatory damages award is limited to the sums necessary to
compensate her for the actual harm caused by the agency's discriminatory
action and attempt to affix a reasonable dollar value to compensate the
complainant for that portion of emotional distress and related symptoms
that were caused by the agency's discrimination. See EEOC Notice No. N
915.002 (July 14, 1992) at 13.
We further note that damage awards for emotional harm are difficult to
determine and that there are no definitive rules governing the amount to
be awarded in given cases. In this regard, the Commission finds that a
proper award must meet two goals: that it not be �monstrously excessive�
standing alone and that it be consistent with awards made in similar
cases. See Jojola-Jemison v. United States Postal Service, EEOC Appeal
No. 01970027 (October 8, 1998)($500 awarded where complainant provided
affidavit attesting to severe anxiety and depression due to the agency's
acts); Striplin v. United States Postal Service, EEOC Appeal No. 01994478
(February 13, 2002)($500 awarded where complainant testified to suffering
from mental anguish); Braue v. United States Postal Service, EEOC Appeal
No. 01A00230 (March 26, 2001)($500 awarded where complainant and his wife
provided affidavits stating that the agency's acts felt like "a slap in
the face" and complainant's appetite was affected). Higher amounts have
been awarded where the harm has been shown to be greater. See Adesanya
v. United States Postal Service, EEOC Petition No. 04980016 (February
19, 1997)($1,389 awarded where complainant submitted affidavits stating
that she was irritable, could not sleep, and had a constant headache);
Mozell v. Department of the Interior, EEOC Appeal No. 01981521 (August 12,
1999)($1,000 awarded where complainant testified that she became more
emotional, irritable and paranoid); DeMeuse v. United States Postal
Service, EEOC Appeal No. 01950324 ($1,500 awarded where complainant
testified he was embarrassed, humiliated, and had suicidal thoughts).
Based on the foregoing, including the nature and severity of harm to
the complainant and the actual duration of the harm, we find an award
of $1000.00 in compensatory damages for her proven nonpecuniary loss
is reasonable.
Therefore, after a careful review of the record, we reverse the
agency's final decision of March 23, 2000, and order the agency to award
compensatory damages as set forth below.
ORDER
The agency is ordered to issue a check to the complainant for $1,000.00
within sixty (60) calendar days of the date this decision becomes final.
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.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0501)
Compliance with the Commission's corrective action is mandatory.
The agency shall submit its compliance report within thirty (30)
calendar days of the completion of all ordered corrective action. The
report shall be submitted to the Compliance Officer, Office of Federal
Operations, Equal Employment Opportunity Commission, P.O. Box 19848,
Washington, D.C. 20036. The agency's report must contain supporting
documentation, and the agency must send a copy of all submissions to
the complainant. If the agency does not comply with the Commission's
order, the complainant may petition the Commission for enforcement
of the order. 29 C.F.R. � 1614.503(a). The complainant also has the
right to file a civil action to enforce compliance with the Commission's
order prior to or following an administrative petition for enforcement.
See 29 C.F.R. �� 1614.407, 1614.408, and 29 C.F.R. � 1614.503(g).
Alternatively, the complainant has the right to file a civil action on
the underlying complaint in accordance with the paragraph below entitled
"Right to File A Civil Action." 29 C.F.R. �� 1614.407 and 1614.408.
A civil action for enforcement or a civil action on the underlying
complaint is subject to the deadline stated in 42 U.S.C. 2000e-16(c)
(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 (M0701)
The Commission may, in its discretion, reconsider the decision in this
case if the complainant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. The appellate decision involved a clearly erroneous interpretation
of material fact or law; or
2. The appellate decision will have a substantial impact on the policies,
practices, or operations of the agency.
Requests to reconsider, with supporting statement or brief, must be filed
with the Office of Federal Operations (OFO) within thirty (30) calendar
days of receipt of this decision or within twenty (20) calendar days of
receipt of another party's timely request for reconsideration. See 29
C.F.R. � 1614.405; Equal Employment Opportunity Management Directive for
29 C.F.R. Part 1614 (EEO MD-110), 9-18 (November 9, 1999). All requests
and arguments must be submitted to the Director, Office of Federal
Operations, Equal Employment Opportunity Commission, P.O. Box 19848,
Washington, D.C. 20036. In the absence of a legible postmark, the
request to reconsider shall be deemed timely filed if it is received by
mail within five days of the expiration of the applicable filing period.
See 29 C.F.R. � 1614.604. The request or opposition must also include
proof of service on the other party.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely, unless extenuating circumstances
prevented the timely filing of the request. Any supporting documentation
must be submitted with your request for reconsideration. The Commission
will consider requests for reconsideration filed after the deadline only
in very limited circumstances. See 29 C.F.R. � 1614.604(c).
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (R0900)
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 (Z1199)
If you decide to file a civil action, and if you do not have or cannot
afford the services of an attorney, you may request that the Court appoint
an attorney to represent you and that the Court permit you to file the
action without payment of fees, costs, or other security. See Title VII
of the Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e et seq.;
the Rehabilitation Act of 1973, as amended, 29 U.S.C. �� 791, 794(c).
The grant or denial of the request is within the sole discretion of
the Court. Filing a request for an attorney does not extend your time
in which to file a civil action. Both the request and the civil action
must be filed within the time limits as stated in the paragraph above
("Right to File A Civil Action").
FOR THE COMMISSION:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
October 11, 2002
__________________
Date