EEOC Appeal No. 0120141368
10-13-2015
Yun C. v. U.S. Postal Serv.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Yun C.,1
Complainant,
v.
Megan J. Brennan,
Postmaster General,
United States Postal Service
(Capital Metro Area),
Agency.
Appeal No. 0120141368
Agency No. 1K-271-0007-10
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts Complainant's appeal from the Agency's January 28, 2014 final decision concerning an equal employment opportunity (EEO) complaint claiming 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., Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq., and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq.
BACKGROUND
At the time of the events at issue, Complainant was an employee of the Agency at its Processing and Distribution Center in Greensboro, North Carolina.
In EEOC Appeal No. 0120120427 (August 20, 2013), we found that Complainant (female) had been subjected to unlawful sexual harassment by a male coworker, for which the Agency was liable. Among other actions, the Agency was order to conduct a supplemental investigation to determine Complainant's entitlement to compensatory damages.
On January 28, 2014, the Agency issued a decision on compensatory damages. The Agency determined that because Complainant did not submit any medical evidence, she was only entitled to $6,149.03 in pecuniary and non-pecuniary compensatory damages.
The instant appeal followed. Complainant argues that she should be awarded in $23,194.47 in pecuniary and non-pecuniary compensatory damages, and restoration of her leave taken as a result of the harassment. Complainant also raises a new claim that she spent 1,284 hours on her complaint for which she should be reimbursed at $135.00 per hour.
The record reflects that Complainant and two female co-workers, C1 and C2, were on limited duty and worked together, sitting at the Postal Automated Redirection System (PARS) table, sorting through "waste" mail. At some point in the spring of 2009, an automation clerk, who worked on the DCBS machines came to their attention due to the automation clerk's attire. Specifically, this individual (G) wore shorts, according to Complainant, C1 and C2, in a manner that significantly outlined and occasionally exposed his penis. G would roll the waist of his shorts up so that the shorts were tighter around the crotch; sometimes wear shorts that were too small; and often go without underwear. By the fall of 2009, C1 and Complainant complained to their manager that G was parading about the worksite, alternating between erections and exposed genitalia.
In October 2009, the manager notified a Human Resource Manager (HRM) who, along with a Workplace Harassment Coordinator, decided that a fact-finding investigation was in order. This investigation was completed by two individuals who did not work at the P&DC. The HRM determined that their investigation was deficient because the only individuals interviewed were Complainant, C1, C2, G, and one of the supervisors. Approximately two months later, another fact-finding was initiated. However, at some point, the HRH instructed this individual to cease the investigation. The investigation was ultimately concluded in March 2010 by two different individuals who also did not work at the P&DC. G was re-interviewed, and Complainant's representative, a mail handler, and another female who worked at the PARS table were also interviewed. In June 2010, HRM sent a letter to Complainant stating that her claim of sexual harassment had not been substantiated.
ANALYSIS AND FINDINGS
When discrimination is found, the agency must provide the complainant with full, make-whole relief to restore him/her as nearly as possible to the position s/he would have occupied absent the discrimination. See, Franks v. Bowman Transportation Co., 424 U.S. 747, 764 (1976); Albemarle Paper Co. v. Moody, 422 U.S. 405, 418-19 (1975); Adesanya v. Postal Service, EEOC Appeal No. 01933395 (July 21, 1994). The Commission recognizes that precise measurement cannot always be used to reduce the wrong inflicted. Nonetheless, we believe that the burden of limiting the remedy rests with the agency. See Davis v. U. S. Postal Service, EEOC Petition No. 04900010 (November 29, 1990).
Compensatory damages do not include back pay, interest on back pay, or any other type of equitable relief authorized by Title VII. To receive an award of compensatory damages, a complainant must demonstrate 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. See Rivera v. Dep't of the Navy, EEOC Appeal No. 01934157 (July 22, 1994), recon. denied, EEOC Request No. 05940927 (Dec. 11, 1995); EEOC's Enforcement Guidance: Compensatory and Punitive Damages Available Under Section 102 of the Civil Rights Act of 1991, EEOC Notice No. 915.002 at 11-12, 14 (July 14, 1992). A complainant is required to provide objective evidence that will allow an Agency to assess the merits of his request for damages. See Carle v. Dep't of the Navy, EEOC Appeal No. 01922369 (Jan. 5, 1993).
Non-pecuniary damages for pain and suffering
Non-pecuniary losses are losses that are not subject to precise quantification, i.e., 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. See EEOC Notice No. 915.002 at 10 (July 14, 1992).
We find that given the specifics of facts in this case, the Agency's remedial award of $6,000.00 in non-pecuniary compensatory damages was inappropriate. In her affidavit, Complainant stated that she suffered from anxiety, mental anguish, and "unworthiness" due to the Agency's failure to investigate her claims. Complainant further stated that she experienced ongoing humiliation. Complainant also provided a letter from her mother attesting to her claim of emotional harm.
In Carle v. Dep't of the Navy, the Commission explained that "objective evidence" of non-pecuniary damages could include a statement by Complainant explaining how she was affected by the discrimination. EEOC Appeal No. 01922369 (January 5, 1993). Statements from others, including family members, friends, and health care providers can also address the outward manifestations of the impact of the discrimination on the complainant. Id. Moreover, while it can strengthen a claim, evidence from a health care provider or other expert is not a mandatory prerequisite for recovery of compensatory damages for emotional harm. Lawrence v. United States Postal Service, EEOC Appeal No. 01952288 (April 18, 1996).
After a review of the record in its entirety, including consideration of all statements submitted on appeal, it is the decision of the Commission to modify the Agency's award of non-pecuniary compensatory damages. We find the award of $6,000 of non-pecuniary compensation damages is inadequate in light of the amount awarded in similar cases, the severity of harm and duration of the harm.
Given the Agency's adverse conduct here in failing to address a situation that was inherently degrading and humiliating, we find it reasonable to accept Complainant's affidavit of emotional distress to support an award for emotional damages. We find it appropriate to award Complainant $20,000 because her affidavit testimony, along with her supporting witness, established that, during the relevant period, she felt humiliated, degraded and "unworthiness" when the Agency did not investigate her claims properly. Specifically, Complainant stated "the whole investigation has not been handled smoothly or consistent with anyone of us that was involved. I asked [a named Agency official] if she had heard anything on the investigation and she said that she had been told that it took a long time. This is not satisfactory. No one should have to work under this type of sexual harassment. The instances that [G] continued to flaunt his genitals became more frequent. And caused nerves to rattle. I felt that management had not followed Postal Policy and had betrayed us because other supervisors began to know about the situation and who was involved....it is unnecessary for something of this nature to go on for so long. It has been 4 months at the end of December with no follow up from [HRM]. She has yet to get in touch with me at 10 months out of initial complaint. The sexual harassment has continued with no resolution in sight [emphasis in its original]."
This award is not "monstrously excessive" standing alone, is not the product of passion or prejudice, and is consistent with the amount awarded in similar cases. See Castillo v. Dep't of the Interior, EEOC Appeal No. 01990818 (July 16, 2002) ($35,000 in non-pecuniary damages where complainant testified to emotional distress, stress at work, anger and tension for a period of approximately three years); Carlson v. Dep't of Justice, EEOC Appeal No. 01A51437 (April 27, 2005) ($30,000 in nonpecuniary damages where complainant testified that he suffered depression, anger, alienation, humiliation, embarrassment, and loss of status); and Garrett v. U.S. Postal Service, EEOC Appeal No. 07A30024 (February 25, 2004) ($35,000 in non-pecuniary damages where complainant experienced emotional distress, depression, anger, embarrassment, humiliation, headaches, and sleep difficulties).
Pecuniary compensatory damages
Pecuniary damages are quantifiable out-of-pocket expenses incurred as a result of the Agency's discriminatory actions. Past pecuniary damages are those which occurred up to the finding of discrimination. Future pecuniary damages are losses likely to occur after the resolution of the complaint.
Here, Complainant has not produced sufficient evidence of past pecuniary damages. We affirm much of the Agency's determination that Complainant failed to provide adequate evidence to support her claim for pecuniary damages. With regard to Complainant's claim for medical expenses, the Agency noted that a review of the medical documentation Complainant submitted do not establish h that she saw her physician for counseling based on G's conduct, and that none of the medication purchased had been show to be related to her harassment claim. The unsupported documentation for medical expenses results in our affirmance of the Agency's denial of this claim.
Complainant alleged that she had to take leave ranging from one hour to an entire day on 23 dates between September 10, 2009 and January 23, 2010, because of her reaction to G's attire. The Agency determined that the Commission did not order restoration of leave as a remedy in this case. The Agency further determined that Complainant did not provide any evidence indicating the leave which she claimed she took was caused by any behavior on the part of G. Moreover, the Agency noted that portion of Complainant's leave was used in connection with her days-off or a holiday. We agree with the Agency that Complainant has failed to establish that the leave was taken as a result of the harassment.
Complainant also requested reimbursement for gasoline for her personal vehicle. The Agency determined that it would not reimburse Complainant for mileage to medical visits because she had not established any causal connection between medical visits and the issues found to be discriminatory. The Agency noted that Complainant had been seeing her physician for years prior to the pursuit of the instant complaint about G, and the evidence in the record does not identify whether any treatment provided by the physician was related to the events in the complaint. However, the Agency determined that it would reimburse Complainant $37.10 for mileage associated with attending her EEO hearing on August 1 and 2, 2011. We affirm the Agency's determination in this regard.
Complainant also requested reimbursement for postage, office supplies, and a new home computer. We note that the Agency determined while Complainant had chose to print out the report of investigation which was not necessary, it would reimburse Complainant the total of $111.93 in pecuniary compensatory damages for mailings directly related to the processing of the complaint, printer cartridge, paper purchase, and a highlighter. As for the remaining purchased of office supplies, the Agency determined that purchases for these supplies either unexplained, unrelated to the processing of this complaint or unwarranted. Moreover, the Agency determined that it would not reimburse Complainant for the purchase of a new home computer. We agree and affirm the Agency's award.
Finally, we note that Complainant, on appeal, raises a new claim: that she spent 1,284 hours on her complaint for which she should be reimbursed at $135.00 per hour. First, we note that it was not part of the Commission's August 20, 2013 order. Further, while a prevailing complainant in the 29 C.F.R. Part 1614 process is entitled to an award of attorney's fees if represented, there is no provision for the reimbursement of Complainant's own time in pursuing her EEO complaint. See Nunez-Mattocks v. Department of Energy, EEOC Appeal No. 0120062340 (June 1, 2007).
CONCLUSION
Accordingly, we MODIFY the Agency's January 28, 2014 final decision to increase the award to $20,149.03 in pecuniary and non-pecuniary compensatory damages for emotional harm.
The case is hereby REMANDED to the Agency for further processing in accordance with the Order below.
ORDER
The Agency is ordered to take the following remedial action, to the extent that it has not already done so:
1. Within sixty (60) calendar days of the date this decision becomes final, the Agency shall tender to Complainant $20,149.03 in pecuniary and non-pecuniary compensatory damages.
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 (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 (T0610)
This decision affirms the Agency's final decision/action in part, but it also requires the Agency to continue its administrative processing of a portion of your complaint. 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 on both that portion of your complaint which the Commission has affirmed and that portion of the complaint which has been remanded for continued administrative processing. 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 your appeal with the Commission, until such time as the Agency issues its final decision on your complaint. 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 (Z0815)
If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may request permission from the court to proceed with the civil action without paying these fees or costs. Similarly, if you cannot afford an attorney to represent you in the civil action, you may request the court to appoint an attorney for you. You must submit the requests for waiver of court costs or appointment of an attorney directly to the court, not the Commission. The court has the sole discretion to grant or deny these types of requests. Such requests do not alter the time limits for filing a civil action (please read the paragraph titled Complainants Right to File a Civil Action for the specific time limits).
FOR THE COMMISSION:
______________________________ Carlton M. Hadden's signature
Carlton M. Hadden, Director
Office of Federal Operations
Oct0ber 3, 2015
__________________
Date
1 This case has been randomly assigned a pseudonym which will replace Complainant's name when the decision is published to non-parties and the Commission's website.
---------------
------------------------------------------------------------
---------------
------------------------------------------------------------
2
0120141368
2
0120141368