01a22291
09-25-2003
Sandra Curry, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Sandra Curry v. United States Postal Service
01A22291
09-25-03
.
Sandra Curry,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A22291
Agency No. 1K-201-0082-99
Hearing No. 100-A0-7389X
DECISION
On March 15, 2002, Sandra Curry (hereinafter referred to as complainant)
filed an appeal from the February 14, 2002, final decision of the United
States Postal Service (hereinafter referred to as the agency) concerning
her complaint of unlawful employment discrimination in violation of Title
VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e et seq.
The appeal is timely filed (see 29 C.F.R. � 1614.402(a)) and is accepted
in accordance with 29 C.F.R. � 1614.405. For the reasons that follow,
the agency's decision is AFFIRMED.
The issue presented in this appeal is whether the relief ordered by the
agency constituted full and complete relief.
Complainant sought EEO counseling on May 19, 1999, and filed her
formal complaint on August 12, 1999.<1> Following an investigation,
she requested a hearing before an EEOC Administrative Judge (AJ). The AJ
conducted a hearing in May and July 2001, and issued a decision on January
16, 2002, finding that the agency discriminated against complainant and
ordering relief. The agency implemented the AJ's decision, including an
award of non-pecuniary compensatory damages of $20,000. Complainant has
filed the instant appeal.
At the time of the events at issue herein, complainant worked as a mail
processor at the agency's Brentwood facility and had worked for the
agency for over 25 years.<2> In her complaint, she claimed that the
Manager of Distribution Operations (M1) sexually harassed her when,
on March 27, 1999, he grabbed her and kissed her, and, on April 10,
1999, he unzipped his pants and exposed himself to her. The AJ found
that M1 sexually harassed complainant; that the harassment was on
account of her gender; that the harassment was unwelcome to her; that
the harassment was pervasive and complainant was subjected to a hostile
and abusive environment; that M1's and the agency's actions were ongoing
and constituted a continuing violation; that the agency failed to take
corrective action since June 1998, when complainant first reported the
harassment to superiors; and that the agency was vicariously liable for
M1's actions. See Enforcement Guidance: Vicarious Employer Liability
for Unlawful Harassment by Supervisors, EEOC Notice No. 915.002 (June 18,
1999).<3> In addition, the AJ found that M1 was not a credible witness
and did not testify truthfully and that he had harassed complainant
on an ongoing basis since at least June 1998 by making repeated sexual
advances and comments of a sexual nature.
Complainant has filed an appeal generally referring to events that
occurred after the matters at issue in her August 1999 complainant.
Specifically, complainant mentioned that she was on leave as of January
22, 2002, due to a mental condition; that her condition worsened when
her position was abolished; that she was exposed to anthrax and had a
reaction to the medication; that she sought work in another location;
and that the agency did not continue to provide transportation to her
new facility. These are new issues that were not raised in her August
1999 complaint, and complainant cannot amend her complaint at this time.
Complainant is advised that if she wishes to pursue these claims as a
new complaint, she must initiate contact with an EEO counselor within
15 days after receipt of this decision, and if she does so, the agency
shall consider the date complainant filed the appeal statement herein (in
which she raised these claims) to be the date of her initial EEO contact,
unless she previously contacted a counselor regarding these matters, in
which case the earlier date would serve as the EEO counselor contact date.
Cf. Qatsha v. Department of the Navy, EEOC Request No. 05970201 (January
16, 1998).<4>
Remedy<5>
The Commission's regulations provide that, in an individual case of
discrimination, the agency must provide full relief to the complainant.
29 C.F.R. � 1614.501; see also Albemarle Paper Co. v. Moody, 422 U.S. 405
(1975). In the matter before us, the AJ ordered the agency, and the
agency agreed: (a) to pay complainant compensatory damages in the amount
of $20,007; (b) to restore to complainant 387 hours of sick leave;
(c) to pay attorney's fees and costs of $18,497.39; (d) to publish a
non-discrimination notice; (e) to provide training to agency managers, and
(f) to consider discipline for M1 for his actions. After an independent
and thorough review of the record, hearing transcripts, and documents
submitted on appeal in this matter, for the reasons set forth below,
we find that the remedy provided is proper and appropriate.<6>
In the instant matter, the AJ found that M1 sexually harassed complainant
and that the agency's actions constituted an abusive and hostile work
environment. In the decision, the AJ set out the general principles
regarding awards for compensatory damages, citing certain Commission
decisions as well as the Commission's 1992 guidance on compensatory
damages. See Enforcement Guidance: Compensatory and Punitive Damages
Available under � 102 of the Civil Rights Act of 1991 (CRA) (July 14,
1992). There was no other separate evidence presented on compensatory
damages, and she awarded complainant $20,000 as non-pecuniary compensatory
damages and $7.00 as pecuniary losses.<7>
Pecuniary Compensatory Damages
As directed in an Order dated July 11, 2000, complainant was told
to submit evidence in support of her claim for compensatory damages.
Because complainant submitted only a single receipt showing $7.00 spent
for prescription medication in support of her claim for out-of-pocket
expenses, we find that the AJ properly awarded her $7.00 in pecuniary
compensatory damages.
Non-pecuniary Compensatory Damages
With regard to non-pecuniary damages, the AJ relied on complainant's
testimony and documentary evidence in the file and concluded that
complainant experienced constant headaches, severe stress, and other
physical and mental symptoms as a result of the agency's discriminatory
actions and that complainant's testimony was truthful and supported by
the record. In awarding complainant $20,000, the AJ referred to past
Commission precedent and her findings that complainant suffered harm when
she was subjected to harassment by M1 for a ten-month period beginning
in 1998 and that she developed physical and mental conditions requiring
medical treatment and an increased level of anxiety.
The Commission has enunciated certain principles with regard to an award
of non-peunicary compensatory damages. See Sinnott v. Department of
Defense, EEOC Appeal No. 01952872 (September 19, 1996); see Guidance,
supra. An award of non-pecuniary compensatory damages must be predicated
on the harm experienced as a result of the agency's actions; the extent,
nature, and severity of the harm suffered; and the duration or expected
duration of the harm, see Rivera v. Department of the Navy, EEOC
Appeal No. 01934156 (July 22, 1994), req. to recon. den., EEOC Request
No. 05940927 (December 11, 1995); an award must take into account the
severity of the harm over the length of time that the injured party
suffered from the harm, see Carpenter v. Department of Agriculture,
EEOC Appeal No. 01945652 (July 17, 1995); and, an award should not be
"monstrously excessive" standing alone, the product of passion or
prejudice, or inconsistent with awards in similar cases, see Cygnar
v. City of Chicago, 865 F.2d 827, 848 (7th Cir. 1989); EEOC v. AIC
Security Investigations, Ltd., 823 F. Supp. 571, 574 (N.D. Ill. 1993).
We find that the record demonstrates that complainant experienced physical
and mental harm because of the agency's actions. The record shows that
because of the harassment by M1 over a ten-month period, complainant
developed physical and mental symptoms requiring medical treatment and
an increased level of anxiety and stress. Her symptoms included severe
migraine-type headaches, anxiety over her job security, and concern
about her son's employment status with the agency. In addition, the
record shows that the agency's action perpetuated complainant's anxiety
by its treatment of her initial complaint regarding M1, changing her
work area after her complaint so that she was in closer proximity to M1,
allowing M1's wife to be privy to her complaint and its investigation,
and failing to take action against M1. In addition, complainant stated
that she was unable to work because of her severe headaches, took
extensive leave, and sought medical attention.
To the extent possible, the Commission seeks to make damage awards for
emotional harm consistent with awards in similar cases. Our review of
cases in which the Commission awarded non-pecuniary compensatory damages
where the complainant experienced similar harm suggest that $20,000, is
an appropriate award. See Smith v. Department of Defense, EEOC Appeal
No. 01943844 (May 9, 1996); Terrell v. Department of Housing and Urban
Development, EEOC Appeal No. 01961030 (October 25, 1996), aff'd, EEOC
Request No. 05970336 (November 25, 1997).
Given the record before us, we find that complainant is entitled to an
award of non-pecuniary compensatory damages in the amount of $20,000.
This determination considers the emotional and physical symptoms described
by the complainant and medical professionals, is not motivated by passion
or prejudice, is not monstrously excessive, and is not inconsistent with
amounts awarded in similar cases. See Cygnar v. City of Chicago, 865
F.2d 827, 848 (7th Cir. 1989); and EEOC v. AIC Security Investigations,
Ltd., 823 F. Supp. 573, 574 (N.D. I11. 1993).
CONCLUSION
Accordingly, the agency's decision is AFFIRMED. Complainant is awarded
$7.00 for pecuniary losses and $20,000 for non-pecuniary damages.
The agency is directed to comply with the Order, below.
ORDER (D0900)
The agency is ordered to take the following remedial actions to the
extent that it has not done so:
A. Within ninety (90) days of the date this decision becomes final,
the agency shall conduct no less than eight (8) hours of training for all
supervisory and managerial employees who were in M1's line of authority,
identified in this matter, or participated in the internal investigation
of this matter, addressing these employees' responsibilities with respect
to eliminating discrimination in the federal workplace and under the
equal employment opportunity laws. The training shall place special
emphasis on prevention and elimination of discrimination based on sex and
sexual harassment. Additional training and appropriate counseling of no
less than sixteen (16) hours shall be afforded to the manager identified
herein as M1 with regard to the identification and prevention of sexual
harassment. Assignment to training pursuant to this Order should not
be considered a disciplinary action.
B. The agency shall restore to complainant 387 hours of sick leave.
C. Within sixty (60) days from the date this decision becomes final,
the agency shall pay complainant $7.00 as pecuniary compensatory damages
and $20,000 for non-pecuniary compensatory damages.
D. The agency shall consider appropriate disciplinary action against the
manager identified herein as M1 and report its decision to the Commission.
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.
E. The agency is directed to make every effort to avoid future
interaction between complainant and M1 during complainant's tenure with
the agency.
F. Within thirty (30) days of the date this decision becomes final,
the agency is ordered to pay attorney's fees and costs in the amount
of $18,497.39.
G. 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
relief ordered herein, including evidence that the corrective action has
been implemented. A copy of all submissions to the Commission shall be
sent to the complainant.
POSTING ORDER (G0900)
The agency is ordered to post at its Brentwood facility copies of the
attached notice.<8> 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 (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.
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
____09-25-03______________
Date
NOTICE TO EMPLOYEES
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 Title VII of the Civil Rights Act of 1964,
as amended, 42 U.S.C. � 2000e et seq., 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 privilege of
employment.
The United States Postal Service, Processing and Distribution Center,
Washington, D.C. (Brentwood), supports and will comply with such Federal
law and will not take action against individuals because they have
exercised their rights under the law. The agency found discrimination
based on sex (sexual harassment), and it has remedied the employee
affected by
providing restoration of leave, compensatory damages, and training for
managers and supervisors. The United States Postal Service, Processing
and Distribution Center, Washington, D.C. (Brentwood), will ensure that
officials responsible for personnel decisions and terms and conditions of
employment will abide by the requirements of all federal equal employment
laws and will not subject employees to discrimination based on sex
(sexual harassment).
The United States Postal Service, Processing and Distribution Center,
Washington, D.C. (Brentwood), 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 participated in
proceedings pursuant to, Federal equal employment opportunity law.
Date Posted:
Posting Expires:
29 C.F.R. Part 1614.
1Complainant stated that she filed her formal complaint on November 9,
1999; in fact, that is the date of her investigation affidavit.
2We note that the Brentwood facility was closed in the fall of 2001,
after exposure to anthrax.
3The AJ's findings track the proof required to demonstrate sexual
harassment in the workplace. Sexual harassment constitutes an actionable
form of sex discrimination under Title VII. Meritor Savings Bank
FSB v. Vinson, 477 U.S. 57 (1986). In order to establish a claim of
sexual harassment, a complainant must show that: (1) she belongs to a
statutorily protected class; (2) she was subjected to unwelcome conduct
related to her gender, including sexual advances, requests for favors, or
other verbal or physical conduct of a sexual nature; (3) the harassment
complained of was based on sex; (4) the harassment had the purpose or
effect of unreasonably interfering with her work performance and/or
creating an intimidating, hostile, or offensive work environment; and
(5) there is a basis for imputing liability to the employer. See McCleod
v. SSA, EEOC Appeal No. 01963810 (August 5, 1999).
4In her appeal, complainant claimed that she identified the basis of
disability (mental) in the complaint at issue herein. The record shows
that she did not claim disability in her formal complaint or before the
EEO counselor.
5We note that, throughout this proceeding, complainant has been
represented by counsel.
6With regard to (f), the AJ ordered that the agency consider discipline
for M1, noting that the agency's discipline to date was on the basis
of inappropriate conduct and that he had not been disciplined for his
illegal discriminatory conduct. The discipline imposed by the agency,
based solely on M1's admission to a mutual embrace and kiss, was reduction
to the highest level non-supervisory position available and a decrease
in salary of about $3,000. These disciplinary actions do not address
his sexual harassment of complainant.
7The AJ has summarized the evidence available to her at the time of
her decision, including medical evidence, which showed that complainant
experienced headaches due to stress and emotional suffering.
8If the Brentwood facility is not presently in operation, such notice
should be posted at places where employees formerly working at Brentwood
are currently placed.