Harry E., Complainant v. Patrick R. Donahoe, Postmaster General, United States Postal Service (Capital Metro Area), Agency. Appeal No. 0120123142 Agency No. 4K-220-0044-10 DECISION Complainant timely filed an appeal from the Agency's July 2, 2012, final decision concerning his claim for compensatory damages pursuant to 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. The Commission accepts the appeal pursuant to 29 C.F.R. § 1614.405(a). For the following reasons, the Commission AFFIRMS the Agency's final decision. ISSUE PRESENTED The issue presented is whether the Agency properly determined that Complainant was entitled to $500 in compensatory damages. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Mail Processing Clerk at the Agency's Merrifield Processing and Distribution Center (P&DC) in Merrifield, Virginia. On June 14, 2010, Complainant filed an EEO complaint alleging that the Agency discriminated against him on the bases of race (Hispanic), national origin (Panama), and in reprisal for prior protected activity when, on February 15 and 23, 2010, he was not permitted to wear a jacket for severe or inclement weather.1 At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation and notice of his right to request a hearing before an EEOC Administrative Judge (AJ). When Complainant did not respond within the time frame provided in 29 C.F.R. § 1614.108(f), the Agency issued a final decision pursuant to 29 C.F.R. § 1614.110(b). Therein, the Agency found that Complainant failed to establish that he was subjected to discrimination as alleged. Specifically, the Agency found that Complainant failed to establish a prima facie case of discrimination based on his protected classes. The Agency also found that management articulated legitimate, nondiscriminatory reasons for its actions, which Complainant failed to show were pretext for discrimination. Complainant subsequently appealed to the Commission. In EEOC Appeal No. 0120113546 (March 21, 2010), we reversed the Agency's final decision, instead finding that the Agency subjected Complainant to discrimination based on reprisal, as alleged.2 Based on the finding of discrimination, we remanded the matter to the Agency to determine Complainant's entitlement to Compensatory damages. The Agency finished its supplemental investigation on Complainant's entitlement to compensatory damages and provided Complainant a copy on April 4, 2011. Thereafter, Complainant, through his attorney, submitted a letter to the Agency, dated April 18, 2012. Therein, Complainant requested $80,000 in non-pecuniary damages. Complainant indicated that he suffered weight loss, a compromised immune system, depression, sleeplessness, and anxiety. Complainant felt that he should be compensated for retaliation, which had been ongoing since 2001. In the letter, Complainant also requested to be compensated for not being able to be a professional musician after the discrimination and retaliation began. Complainant wrote that he should have earned $300 weekly as a musician for the duration of five years totaling $78,000. Complainant additionally noted that he had to purchase medicine for his colds that resulted directly from not being allowed to wear his jacket. Complainant specifically requested compensation for the Nyquil, Tylenol, and Vicks cold medication that he had to purchase, totaling $3,120 over the span of 5 years. Complainant requested that the amount be multiplied by two brining the total to $6,240 for future expenses due to the fact that the discrimination had been ongoing. In sum, Complainant requested a total of $164,240 from the Agency. The Agency subsequently issued its decision addressing Complainant's entitlement to compensatory damages. Therein, the Agency noted that the only issue pertained to Complainant's entitlement to compensatory damages when he was not permitted to wear a jacket on February 15 and 23, 2010. The Agency indicated that Complainant failed to present evidence that he earned $300 per week as a musician, and that the only evidence presented involved appearances made over ten years before the alleged discrimination occurred. The Agency found that Complainant failed establish any connection between the discrimination and his loss of interest in music. The Agency further noted that Complainant requested $3,120 for medicine for colds and sickness due to not being allowed to wear a jacket. The Agency found, however, that there was no credible evidence that Complainant suffered any medical problem from not being able wear a jack while working indoors at the Agency's Merrifield Processing and Distribution Center. The Agency therefore denied Complainant's claim for pecuniary compensatory damages in its entirety. The Agency also found that Complainant was not entitled to an award of non-pecuniary compensatory damages because he failed to establish that any discrimination occurred3 or that he had suffered any emotional distress. Notwithstanding, the Agency nevertheless awarded Complainant $500 for a "temporarily unpleasant physical work environment" based on Commission case precedent. CONTENTIONS ON APPEAL On appeal, Complainant maintains that the Agency engaged in retaliation that had been ongoing for some time. Complainant asserts that his compensatory damages request is for the Agency's behavior that has been ongoing since 2001. Complainant believes he is entitled to his full request of compensatory damages, and points out that he is still working under the same responsible management officials.4 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 the agency's discriminatory conduct. Enforcement Guidance: Compensatory and Punitive Damages Available Under Section 102 of the Civil Rights Act of 1991 (Enforcement Guidance), EEOC Notice No. 915.002, at 8 (July 14, 1992). Objective evidence of compensatory damages can include statements from the complainant concerning his or her 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. Evidence from a health care provider or other expert is not a prerequisite for recovery of compensatory damages for emotional harm. 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)). Non-Pecuniary 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). Moreover, 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 "monstrously 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). Upon review of the Commission's case precedent, we find Complainant's request for $80,000 in non-pecuniary damages to be excessive. Taking into account the evidence of non-pecuniary damages submitted by the complainant, we find that the Agency's award of $500 in non-pecuniary damages to be sufficient. We note that Complainant requests compensation for emotional harm for discrimination that had been ongoing since 2001, but our previous decision only addressed whether he had been subjected to discrimination on February 15 and 23, 2010, when he was not permitted to wear a jacket. We find that the Agency's award takes into account the severity and duration of the harm suffered, and is consistent with prior Commission precedent. See Kinney. U.S. Postal Serv., EEOC Appeal Number 01A51558 (May 6, 2005) (awarding $300 in non-pecuniary damages where discrimination resulted in stress, health issues, and mental anguish); Seago v. Dep't of Agriculture, EEOC Appeal No. 07A60030 (Oct. 17, 2006), req. for recon. den'd, EEOC Request No. 0520070151 (Dec. 20, 2006) (complainant awarded $500 in non-pecuniary, compensatory damages when he suffered frustration, humiliation, confusion, and uncertainty as a result of the agency's discriminatory action); Chunn v. Soc. Sec. Admin., EEOC Appeal No. 0120081203 (Mar. 3, 2009) ($500 in non-pecuniary compensatory damages awarded when Complainant was made to work in a small, uncomfortable, poorly-ventilated workspace); Carter v. Dep't of Veterans Affairs, EEOC Appeal No. 0120122266 (Oct. 18, 2012) (complainant awarded $500 in non-pecuniary, compensatory damages for hair loss, insomnia, and an extreme paranoia of her workplace due to discrimination). We note that this sum is meant to compensate Complainant for the emotional distress he suffered which was caused by the Agency's discriminatory actions. Finally, this amount 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 v. City of Chicago, 865 F.2d 827, 848 (7th Cir. 1989). Pecuniary Compensatory Damages Pecuniary losses include quantifiable out-of-pocket expenses that are incurred as a result of the discriminatory conduct. To recover damages, the complaining party must prove that the employer's discriminatory act or conduct was the cause of his loss. Enforcement Guidance, EEOC Notice No. 915.002, at 8 (July 14, 1992). In the instant case, Complainant asserts that the discrimination he suffered caused him to lose interest in playing in his jazz band wherein he should have earned $300 per week for his performances. Complainant believes that he should be compensated for the missed weekly music performances for a span of five years, totaling $78,000. However, we find that Complainant has not established a causal connection between the discriminatory act of not being allowed to wear a jacket and the amount he would have received of playing in his jazz band had he not been depressed. Complainant also requested compensation for over-the-counter medication he had to purchase for five years due to colds that he claimed resulted directly from not being allowed to wear his jacket. We find that Complainant has not established any connection between these expenses and the discrimination. There is simply no evidence in the record that the purchase of these medications was in any way connected to the Agency's discrimination. We note that simply listing medications alone does not establish a connection between the alleged harm and the discrimination. Complainant does not dispute that he never saw a doctor. We find it unreasonable for Complainant to claim expenses for future colds that he speculates he might incur due to the Agency's actions on two dates in 2010. We therefore find that Complainant has not established an entitlement to any past or future pecuniary losses. CONCLUSION Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we AFFIRM the Agency's final decision regarding the compensatory damages award in this matter. ORDER The Agency is ORDERED to take the following remedial action: To the extent that it has not already done so, the Agency shall issue Complainant a check in the amount of $500 within sixty (60) calendar days of the date this decision becomes final. 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 (S0610) 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 (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 March 20, 2015 Date 1 This is the third appeal in this case. In EEOC Appeal No. 0120103428 (December 27, 2010), we reversed a Final Agency Decision dismissing Complainant's compliant for failure to state a claim, and remanded the matter for processing. The second appeal is discussed in the text below. 2 The Agency did not request reconsideration of EEOC Appeal No. 0120113546. 3 The Agency is reminded that the Commission did, in fact, find that the Agency discriminated against Complainant based on reprisal in connection with the February 15 and 23, 2010, incidents. EEOC Appeal No. 0120113546. 4 We note that Complainant also asserts, without elaboration, that the Agency has not complied with our orders in EEOC Appeal No. 0120113546. If Complainant believes the Agency has not complied with the prior decision, he is advised to file a petition for enforcement pursuant to 29 C.F.R. § 1614.503(a). --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ 2 0120123142 U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 2 0120123142