EEOC Appeal No. 0120150824
04-21-2017
Desire M. v. U.S. Postal Serv.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Desire M.,1
Complainant,
v.
Megan J. Brennan,
Postmaster General,
United States Postal Service
(Great Lakes Area),
Agency.
Appeal No. 0120150824
Hearing No. 443-2012-00018X
Agency No. 1J-536-0003-11
DECISION
The Equal Employment Opportunity Commission (EEOC or Commission) accepts Complainant's appeal, pursuant to 29 C.F.R. � 1614.403(a), from the Agency's November 7, 2014 final action 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. and Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq.
BACKGROUND
During the period at issue, Complainant worked as a Custodian/Laborer at the Agency's Madison, Wisconsin Processing and Distribution Center.
On May 6, 2011, Complainant filed the instant formal complaint. Complainant alleged that the Agency discriminated against her on the bases of sex (female) and disability by failing to provide her with a reasonable accommodation when:
from January 5, 2011 to February 7, 2011, she was denied overtime on Mondays; from January 15, 2011 to January 27, 2011, her supervisor made derogatory comments; on January 26, 2011, she was told that she would need re-training due to having an accident; from January 26, 2011 to February 10, 2011, she was not allowed to operate powered industrial equipment; on April 19, 2011, she was placed on administrative leave until she was cleared to return to work by the medical unit; in May 2011, her request to change tours was not answered; and on June 3, 2011, she was instructed to submit leave slips to her acting supervisor and, subsequently, her request for a change of schedule was denied.
After the investigation into these claims, Complainant timely requested a hearing before an EEOC Administrative Judge (AJ). Following a hearing held on February 27 and 28, 2013, the AJ issued a decision finding that Complainant was discriminated against based on her sex when from January 28, 2011 through February 10, 2011, she was not permitted to drive a motorized vehicle. The AJ further found that Complainant was discriminated against based on her disability when she was denied a request for a Temporary Change of Schedule and when she was given a directive to submit her leave requests to her immediate supervisor. The AJ found no discrimination on the remaining claims.
In his decision, the AJ ordered the Agency to restore Complainant's leave used for the period of June 8, 2011 - June 17, 2011 and pay her reasonable attorney's fees. The AJ also awarded Complainant $3,500 in non-pecuniary compensatory damages.
The Agency issued its final action fully implementing the AJ's decision.
The instant appeal followed. On appeal, Complainant argues that she is only appealing two issues in the AJ's September 30, 2014 decision. First, Complainant appeals whether the AJ erred finding that Complainant was not discriminated against based on her disability when in April 2011, she was placed on administrative leave until she was cleared to work through the medical unit. Second, Complainant challenges the amount of compensatory damages awarded by the AJ. Specifically, Complainant claims she should be awarded in $35,000 in non-pecuniary compensatory damages to compensate for the emotional damage that resulted from the Agency's discriminatory actions.
ANALYSIS AND FINDINGS
As a preliminary matter, we note that the only part of the AJ's decision challenged on appeal by Complainant concerns: (1) the AJ's finding of no discrimination when Complainant was placed on administrative leave in April 2011 until cleared to work through the medical unit, and (2) the AJ's award of non-pecuniary compensatory damages. We therefore confine our analysis and decision to these two issues.
AJ's finding of no discrimination when Complainant was placed on administrative leave
As a result of Complainant's statement regarding her suicidal thoughts, and in consultation with Labor Relations, Agency management placed Complainant on Emergency Placement until she had an opportunity to obtain a medical clearance from her doctor that she was not a danger to herself or others. The AJ found that Complainant failed to show that she was discriminated against because of her disability when she was put on the Emergency Placement.
The AJ noted that the Agency asserted that it had no way of knowing Complainant's suicidal thoughts had abated. The Agency therefore placed her on Emergency Placement until it could determine she was not a threat to herself or others. Complainant failed to provide evidence that the interval between in February 2011 (when she experienced these thoughts) and in April 2011 (when she ultimately notified management of these thoughts) was so significant the Agency either knew or should have known she was doing significantly better.
Further, the AJ noted that Complainant was paid while on Emergency Placement. Complainant suffered no harm and was returned to duty once she provided the requested medical release to work.
In sum, we conclude that the weight of the evidence of record supports the AJ's conclusion that the Agency's actions in placing Complainant on paid emergency leave was reasonable under the circumstances until it could determine she was not a threat to herself or others. We find that Complainant did not prove, by a preponderance of the evidence, that these proffered reasons were a pretext designed to mask discrimination on the bases of sex and disability.
Non-Pecuniary Damages for Pain and Suffering
After establishing entitlement to an award of compensatory damages, there is no precise formula for determining the amount of damages for non-pecuniary losses, except that the award should reflect the nature and severity of the harm and the duration or expected duration of the harm. See Loving v. Dep't of the Treasury, EEOC Appeal No. 01955789 (Aug. 29, 1997). It should likewise be consistent with amounts awarded in similar cases. See Hogeland v. Dep't of Agriculture, EEOC Appeal No. 01976440 (June 14, 1999). Non-pecuniary compensatory damages are designed to remedy a harm and not to punish the Agency for its discriminatory actions. Furthermore, compensatory damages should not be motivated by passion or prejudice or be "montstrously excessive" standing alone but should be consistent with the amounts awarded in similar cases. See Ward-Jenkins v. Dep't of the Interior, EEOC Appeal No. 01961483 (March 4, 1999).
Complainant stated that as a result of the discrimination, she suffered excessive anxiety and anger and depression. She further stated that the discrimination affected her as she withdrew from normal activities of daily living, such as cleaning and taking care of herself. Complainant stated that her mental health declined, her mood deteriorated and she was unable to enjoy life. Moreover, Complainant increased her visits with her therapist.
The AJ, in setting his award of $3,500, recognized that Complainant experienced considerable stress and anxiety. However, he found that some of this stress was caused by the actions management which were not found to be discriminatory. He also noted the need to separate Complainant's emotional symptoms that were the direct result of the discrimination and those that had existed prior to the events at issue. He awarded Complainant $3,500 in damages because he found that the discriminatory actions of the Agency exacerbated Complainant's pre-existing mental health condition.
We find that the AJ's award of $3,500 in non-pecuniary compensatory damages should be raised to $10,000 to be more consistent with what the Commission has awarded in cases where complainants have suffered emotional harm due to discrimination similar in severity and duration to the emotional harm Complainant suffered in the instant case. See Massingill v. Department of Veterans Affairs, EEOC Appeal No. 01A41801 (May 18, 2005) ($10,000 awarded in compensatory damages where pre-existing depression was exacerbated by the agency's unlawful discrimination); Rowan v. Dep't of Veterans Affairs, EEOC Appeal No. 0120070384 (June 19, 2009) ($10,000 for non-pecuniary damages where complainant established that at least some of his stress, humiliation, anxiety, sleeplessness, fears of termination, and depression were attributable to the discriminatory conduct); Complainant v. Dept. of Homeland Security, 0720100039 (April 24, 2012) ($10,000 in non-pecuniary compensatory damages where the complainant suffered humiliation, stress, and loss of sleep and appetite as a result of unlawful discrimination).
CONCLUSION
The Agency's final action adopting the AJ's finding of no discrimination concerning Complainant being placed on administrative leave is AFFIRMED and award of compensatory damages is MODIFIED. We direct the Agency to comply with the Order below.
ORDER
Within sixty (60) days of the date this decision become final, to the extent it has not already done so, the Agency shall pay Complainant $10,000 in non-pecuniary compensatory damages.
The Agency shall 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.
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 Chap. 9 � VII.B (Aug. 5, 2015). All requests and arguments must be submitted to the Director, Office of Federal Operations, Equal Employment Opportunity Commission. The requests may be submitted via regular mail to P.O. Box 77960, Washington, DC 20013, or by certified mail to 131 M Street, NE, Washington, DC 20507. 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 (R0610)
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 (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
April 21, 2017
__________________
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.
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