01A24191
09-24-2003
Ramona Linder, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Ramona Linder v. United States Postal Service
01A24191
September 24, 2003
.
Ramona Linder,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A24191
Agency No. 4C-440-0206-99
Hearing No. 220-AO-5141X
DECISION
Complainant timely initiated an appeal from the agency's final order
awarding complainant the sum of $3,500.00 in non-pecuniary compensatory
damages following a decision by the agency adopting an EEOC Administrative
Judge's (AJ) decision finding that the agency had engaged in 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 AFFIRMS the agency's final order.
Background
The record reveals that complainant, a Transitional Letter Carrier at the
agency's B/C Station in Cleveland, Ohio (facility), filed a formal EEO
complaint on July 13, 1999, alleging that the agency had discriminated
against her on the basis of sex (female) when her supervisor (RMO: male)
subjected her to a hostile work environment over the course of several
months. At the conclusion of the investigation, complainant was provided
a copy of the investigative report and requested a hearing before an AJ.
Following a hearing, the AJ issued a decision finding sex discrimination.
The AJ further found that complainant suffered emotional distress that
resulted in difficulty sleeping and in getting up and going to work, as
well as headaches whenever she saw RMO's face. In addition, complainant
would come home from work every day with an �attitude� and was preoccupied
with RMO's behavior. The AJ awarded non-pecuniary compensatory damages as
discussed above, and ordered the agency to undertake various remedies.
The agency's final order adopted the AJ's finding of discrimination
and the remedies ordered by the AJ, including the amount of damages.
From this decision, complainant appeals.
On appeal, complainant argues that the amount awarded is insufficient to
compensate her for the harm suffered and requests damages in the amount of
$300,000.00. In all other respects, complainant requests that we affirm
the AJ's decision. The agency requests that we deny complainant's appeal.
Analysis and Findings
We note that the Civil Rights Act of 1991 (CRA) authorizes awards
of compensatory damages as relief for intentional discrimination in
violation of the Rehabilitation Act. 42 U.S.C. �198la. Compensatory
damages are recoverable in the administrative process. West v. Gibson,
119 S.Ct. 1996 (1999); see Jackson v. United States Postal Service,
EEOC Appeal No. 01923399 (November 12, 1992), req. to recon. den.,
EEOC Request No. 05930306 (February 1, 1993). Compensatory damages may
be awarded for losses and suffering due to the discriminatory acts or
conduct of the agency and include past pecuniary losses, future pecuniary
losses, and non-pecuniary losses that are directly or proximately caused
by the agency's discriminatory conduct. See Compensatory and Punitive
Damages Available Under Section 102 of the Civil Rights Act of 1991,
EEOC Notice No. N 915.002 (July 14, 1992) (Notice) at p. 8.
Generally, 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. Regarding non-pecuniary
damages, we note that such damages are designed to remedy a harm and
not to punish the agency for its discriminatory actions. See Memphis
Community School Dist. v. Stachura, 477 U.S. 299, 311-12 (1986)(stating
that compensatory damages determination must be based on the actual harm
sustained and not the facts of the underlying case). A proper 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. 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))
Section 1981a(b)(2) of the CRA 1991 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 non-pecuniary 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 herein, is $300,000.00.
To receive an award of compensatory damages, a complainant must
demonstrate the following: that 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.
We note that the AJ's award is consistent with the amounts awarded in
similar cases, given the level of harm experienced by complainant. See
Loving v. Department of the Treasury, EEOC Appeal No. 01955789 (March 19,
1998)(complainant awarded $3,000.00 for harassment resulting in headaches,
sleeplessness, loss of self esteem and confidence): Spencer v. Department
of the Treasury, EEOC Appeal No. 07A10035 (May 6, 2003)($5000.00 awarded
for complainant's complaints of dejection, stress and emotional pain).
The Commission further notes that the amount awarded by the AJ meets
the goals of not being motivated by passion or prejudice, not being
"monstrously excessive" standing alone, and being consistent with the
amounts awarded in similar cases. See Cygnar, 865 F.2d at 848; US EEOC
v. AIC Security Investigations, Ltd., 823 F.Supp. 573, 574 (N.D. Ill
1993). We therefore discern no basis to disturb the AJ's decision.
Therefore, after a careful review of the record, including arguments
and evidence not specifically discussed in this decision, the Commission
affirms the agency's final order. The agency is directed to take remedial
action in accordance with this decision and the Order below.
ORDER
The agency is ordered to take the following remedial action:
Within sixty (60) days of the date on which this decision becomes final,
the agency, if it has not already done so, shall tender to complainant
non-pecuniary compensatory damages in the amount $3,500.00.
Within sixty (60) days of the date this decision becomes final, the
agency, if it has not already done so, shall provide training in the
obligations and duties imposed by Title VII to the agency officials
identified as being responsible for the discrimination.
The agency shall review the matters giving rise to this complaint and
determine whether disciplinary action against the RMO is appropriate.
The agency shall record the basis of the decision to take or not to take
such actions, and to report the same to the Commission in the same manner
as implementation of the Commission decision is reported.
4. The agency shall comply with the Posting Order 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 verifying
that the corrective action has been implemented.
POSTING ORDER (G0900)
It the agency has not already complied with the AJ's Posting Order,
the agency is ordered to post at its B/C Station 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.
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).
ATTORNEY'S FEES (H0900)
If complainant has been represented by an attorney (as defined by
29 C.F.R. � 1614.501(e)(1)(iii)), he/she is entitled to an award of
reasonable attorney's fees incurred in the processing of the complaint.
29 C.F.R. � 1614.501(e). The award of attorney's fees shall be paid
by the agency. The attorney shall submit a verified statement of fees
to the agency -- not to the Equal Employment Opportunity Commission,
Office of Federal Operations -- within thirty (30) calendar days of this
decision becoming final. The agency shall then process the claim for
attorney's fees in accordance with 29 C.F.R. � 1614.501.
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (S0900)
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 (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
September 24, 2003
__________________
Date
POSTED BY ORDER OF THE
EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
An Agency of the United States Government
This Notice is posted pursuant to an Order by the United States Equal
Employment Opportunity Commission dated which found that a
violation of the Title VII of the Civil Rights Act of 1964, as amended,
42 U.S.C. � 2000e et seq. (Title VII), has occurred at this facility.
Federal law requires that there be no discrimination against any employee
or applicant for employment because of the person's RACE, COLOR, RELIGION,
SEX, NATIONAL ORIGIN, AGE, or DISABILITY with respect to hiring, firing,
promotion, compensation, or other terms, conditions or privileges of
employment. The United States Postal Service, B/C Station, Cleveland,
Ohio confirms its commitment to comply with these statutory provisions.
The United States Postal Service, B/C Station, Cleveland, Ohio supports
and will comply with such Federal law and will not take action against
individuals because they have exercised their rights under law.
The United States Postal Service, B/C Station, Cleveland, Ohio has been
found to have discriminated against an employee when her supervisor
subjected her to sexual harassment over the course of several months and
management failed to act. The United States Postal Service, B/C Station,
Cleveland, Ohio has been ordered to provide compensatory damages to
the affected employee and provide training regarding Title VII to the
appropriate managers. The United States Postal Service, B/C Station,
Cleveland, Ohio will ensure that officials will abide by the requirements
of all Federal equal employment opportunity laws.
The United States Postal Service, B/C Station, Cleveland, Ohio will
not in any manner restrain, interfere, coerce, or retaliate against
any individual who exercises his or her right to oppose practices made
unlawful by, or who participates in proceedings pursuant to, Federal
equal employment opportunity law.
_______________________________
Date Posted: ____________________
Posting Expires: ________________
29 C.F.R. Part 1614