0120111512
02-08-2012
David E. Boswell, Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service (Great Lakes Area), Agency.
David E. Boswell,
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service
(Great Lakes Area),
Agency.
Appeal No. 0120111512
Agency No. 1J-461-0030-08
DECISION
Complainant filed an appeal from the Agency’s December 10, 2010 Final
Decision concerning his equal employment opportunity (EEO) complaint
alleging 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.
For the following reasons, the Commission MODIFIES the Agency’s Final
Decision.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked
as a Manager, Maintenance at the Bloomington, Indiana Mail Processing
Annex. On March 29, 2008, Complainant filed an EEO complaint alleging
that he was discriminated against in reprisal for prior protected EEO
activity (under Title VII), when on January 11, 2008, he was subjected to
retaliatory terms and conditions of employment, including being prevented
from submitting his PFP-core-requirements. In Boswell v. United States
Postal Serv., EEOC Appeal No. 0120091674 (July 6, 2010), the Commission
found that Complainant was subjected to retaliatory terms and conditions
of employment during the period of time beginning with the December 2007
holiday party through the end of March 2008. Id.
The Commission ordered the Agency to provide EEO training to responsible
management officials, to consider disciplining Complainant’s
Manager, and to post a notice regarding the finding of discrimination.
The Commission also remanded the issue of compensatory damages to the
Agency for the purpose of conducting a supplemental investigation.
The Agency was ordered to provide Complainant with an opportunity to
present evidence of pecuniary and non-pecuniary damages.
By Notice of Final Decision dated December 10, 2010, the Agency determined
that Complainant was entitled to an award of $500 for non-pecuniary,
compensatory and no award for pecuniary damages. Agency Notice of Final
Decision, (Ag Decision), December 10, 2010, at 14.
CONTENTIONS ON APPEAL
On appeal, Complainant states that the Agency failed to comply with
the AJ’s order to issue its final decision regarding compensatory
damages within 60 days. Complainant also states that the Agency
has failed to post the notice, provide the EEO training, and consider
disciplining Complainant’s Manager, as per the Commission’s decision.
Complainant’s Statement on Appeal, January 10, 2010 at 1, et seq.
ANALYSIS AND FINDINGS
Compensatory Damages
Compensatory damages may be awarded for the past pecuniary losses,
future pecuniary losses, and non-pecuniary losses which are directly or
proximately caused by an agency's discriminatory conduct. EEOC Enforcement
Guidance: Compensatory and Punitive Damages Available under § 102 of
the Civil Rights Act of 1991, EEOC Notice No. 915.002, at II.A. (July
14, 1992).
Objective evidence of compensatory damages can include statements from
an employee concerning his emotional pain or suffering, inconvenience,
mental anguish, loss of enjoyment of life, injury to professional
standing, injury to character or reputation, injury to credit standing,
loss of health, and any other non-pecuniary losses that are incurred as a
result of the discriminatory conduct. Statements from others, including
family members, friends, health care providers, or other counselors
(including clergy) could address the outward manifestations or physical
consequences of emotional distress, including sleeplessness, anxiety,
stress, depression, marital strain, humiliation, emotional distress,
loss of self-esteem, excessive fatigue, or a nervous breakdown. Lawrence
v. U.S. Postal Serv., EEOC Appeal No. 01952288 (Apr. 18, 1996) (citing
Carle v. Dep't of the Navy, EEOC Appeal No. 01922369 (Jan. 5, 1993)).
An award of non-pecuniary, compensatory damages should reflect the extent
to which an agency's discriminatory action directly or proximately caused
the harm as well as the extent to which other factors also caused the
harm. Johnson v. Dep't of the Interior, EEOC Appeal No. 01961812 (June
18, 1998). It is the employee's burden to provide objective evidence
in support of his claim and proof linking the damages to the alleged
discrimination. Papas v. U.S. Postal Serv., EEOC Appeal No. 01930547
(Mar. 17, 1994); Mims v. Dep't of the Navy, EEOC Appeal No. 01933956
(Nov. 24, 1993).
We find that the Agency’s Notice of Final Decision regarding
compensatory damages was timely issued within the specified time
period which was 150 days after the decision in Boswell, EEOC Appeal
No. 0120091674, became final. In support of his claim for damages,
Complainant submitted his own affidavits, together with signed statements
from his wife and co-workers. Record on Appeal (ROA) at 38, et seq.
Complainant’s statements, corroborated by his wife and to a lesser
extent by his co-worker, show that he suffers from anxiety, embarrassment,
humiliation, sleeplessness, stress, depression, high blood pressure,
headaches, nose bleeds, high cholesterol, frustration, anger, loss
of self worth, fatigue, loss of self esteem, and loss of enjoyment of
work and life as a result of discrimination. Complainant states, and
his wife’s statement confirms, that Complainant exhibited a change in
mood, together with a loss of marital relations and intimacy that both
attribute to Complainant’s work. Id.
We concur with the Agency that Complainant does not provide sufficient
evidence regarding his medications and medical expenses to support an
award for pecuniary damages. We note that Complainant does not indicate
which medications he was taking prior to the time of the discriminatory
acts, nor when his medications increased or changed. Complainant’s
receipts for prescriptions are from 2010, and have not been linked to
the discrimination. See ROA at 104, 105.
Complainant’s declaration of July 31, 2010, states that Complainant’s
damages stem from the deteriorating relationship with the identified
responsible management official “over several years.” Similarly,
Complainant’s wife’s statement (undated), describes Complainant’s
current sufferings in contrast to how Complainant “used to” enjoy
his employment and working relationships, without specifying when
Complainant’s sufferings began to appear. See, Complainant’s
Statement of Damages, July 31, 2010; Statement of [Complainant’s
spouse], (undated); ROA at 43, 48. Complainant has failed to show that
all of his pain and suffering is attributable solely to the discrimination
he suffered from December 2007, through March 2008.
The Commission finds that the Agency’s award of $500 in non-pecuniary,
compensatory damages is insufficient. We find that an award of $2,000
in non-pecuniary, compensatory damages is appropriate to compensate
Complainant for his emotional pain and suffering resulting from the
unlawful discrimination and is consistent with prior cases issued by
the Commission. Pritchett v. Department of the Air Force, EEOC Appeal
No. 0720110022 (February 1, 2012) ($2,000 in non-pecuniary, compensatory
damages awarded when complainant was discriminatorily rotated in
assignments and stated she felt anxious; statements were provided by
a medical provider that complainant missed work due to this anxiety);
Boone v. United States Postal Serv., EEOC Appeal No. 01A31199 (April
28, 2004) ($2,000 awarded in non-pecuniary, compensatory damages where
testimony from complaint and family members showed that for four months
he was angry, frustrated, irritable, withdrawn and had difficulty sleeping
regarding a discriminatory non-selection).
EEO Training, Consideration of Discipline, and Posting Notice
The Agency has not addressed Complainant’s arguments that it did
not comply with the remainder of the Order in Boswell, EEOC Appeal
No. 0120091674, requiring EEO training, consideration of discipline,
and posting of a notice of the finding of discrimination. The record
does not contain evidence of compliance with these provisions in the
Order. Therefore, we shall remand the matter so that the Agency can show
that it has complied with these provisions of the Order.
CONCLUSION
We MODIFY the Agency's Notice of Final Decision regarding compensatory
damages and order the Agency to pay compensatory damages as specified
in the Order herein. We also Order the Agency to show that it has
complied with the other provisions of the Order in Boswell, EEOC Appeal
No. 0120091674.
ORDER
To the extent it has not already done so, the Agency shall, within
30 days of the date this decision becomes final, pay Complainant
$2,000 in non-pecuniary, compensatory damages. Within 30 days of
the date this decision becomes final, the Agency shall place evidence
in the record showing that it has complied with the provisions of the
Order in Boswell, EEOC Appeal No. 0120091674, requiring EEO training,
consideration of discipline, and posting of a notice of the finding of
discrimination. Within 30 days of the date this decision becomes final,
the Agency shall issue a decision showing whether it has complied with
the Order in Boswell, EEOC Appeal No. 0120091674.
The Agency shall send evidence to the Compliance Officer referenced
herein that it paid Complainant the compensatory damages and it shall
also send to the Compliance Officer a copy of its decision regarding
compliance with the Order in Boswell, EEOC Appeal No. 0120091674.
ATTORNEY'S FEES (H0610)
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 (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 (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
February 8, 2012
__________________
Date
2
0120111512
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
7
0120111512