Joyce M. Sanford v. United States Postal Service 01A31818 May 13, 2004 . Joyce M. Sanford, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency. Appeal No. 01A31818 Agency Nos. 1F-908-0032-98; 1F-908-0025-99; 1F-908-0013-02 DECISION Complainant timely initiated an appeal from a final agency decision (FAD) concerning her complaint of unlawful 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 appeal is accepted pursuant to 29 C.F.R. § 1614.405. Complainant, a clerk at the agency's Long Beach, California Processing and Distribution Center, sought EEO counseling and subsequently filed three formal complaints alleging discrimination on the bases of race (African-American), national origin (African-American), sex (female), religion (Baptist), color (Black), age (DOB: February 1, 1954), and reprisal (prior EEO activity) when, among other things, continuing for years, she was stalked and sexually harassed by a co-worker (CW). The agency issued its final decisions determining that complainant provided no evidence to support her claims of harassment. Complainant appealed the agency's decisions to the Commission. The Commission consolidated the appeals of the three final decisions into one decision. See Sanford v. United States Postal Serv., Appeal Nos. 01994955, 01A01366 & 01A22650 (Sept. 12, 2002). We found that the record overwhelmingly showed that at least since 1993, CW engaged complainant and another co-worker in verbal fights, stalked complainant by following her, staring at her, blocking her path with his body, and waiting for her in the parking lot and/or picnic table. Complainant complained of the harassment to the District Manager at least by August 7, 1998. The Commission's decision also noted that other managers acknowledged being aware of the harassment. We found that undoubtedly, CW's actions amounted to sexual harassment in that he created an unwanted, intimidating, hostile and offensive work environment. The agency defended itself by asserting that the conduct was not sexual and that it had taken the appropriate corrective action. Our decision found that the agency's corrective action was inadequate. Accordingly, we found that complainant established that she was subjected to sexual harassment and that the agency failed to take appropriate corrective action. Among other things, the decision on Appeal Nos. 01994955, 01A01366 & 01A22650 ordered the agency to conduct a supplemental investigation to determine complainant's entitlement to compensatory damages. The decision directed the agency to request objective evidence from complainant in support of her claim for compensatory damages. Complainant complied with the agency's request. She sought compensation for the following items and amounts: Past Benefit Losses $ 17,362.58 Past Medical Expenses $ 7,200.00 Future Medical Expenses $ 32,000.00 Transportation for MD Visits $ 462.60 Future Transportation $ 1,542.00 Non-pecuniary Damages $ 115,000.00 In addition, complainant provided documentation to substantiate her request. Besides her own sworn statement, complainant included a psychological report from her psychologist (P) as well as several statements from co-workers/friends. Complainant provided information regarding the emotional distress she experienced due to the sexual harassment by CW and the agency's failure to take action to stop the harassment. She has been diagnosed with posttraumatic stress disorder and has been told that it will take an additional ten years to recover. The Psychologist's report supported this statement. Complainant also stated that every day she frequents the places at work where the harassment took place and that she is haunted by those experiences. Complainant noted that she was a different person before the harassment, a person who laughed, smiled, loved to be with people, and enjoyed life. Now, she feels “like a lost little girl crying in the darkest, starless night - unable to find her way home.” She indicated that the harassment took control of her life from her and invaded her every moment, awake and in dreams/nightmares. Complainant contended that she turned away from her loved ones. She has become moody, irritable, unable to accept simple kindness, and sapped of her willingness to participate in social events or even doing normal chores such as cooking dinner. Complainant finds it hard to believe that she is safe and is sick with fear and loathing of the terror and of herself. The Psychiatric Evaluation indicates that complainant has been under the P's treatment since 1999 for the “psychiatric problems cause by this sexual harassment.” The P noted that the harassment had been going on for years and that the lack of action on the part of the agency increased complainant's emotional distress and “directly contributed to the formation of her current emotional and psychological problems.” The P supported complainant's assertions that she dreams about the harassment. He also noted that complainant has experienced the following physical symptoms: nausea, a lump in the throat, sweating not brought on by heat, itching all over her body, intensifying of her asthma, clammy hands, dizziness, tingling in fingers and toes, difficulty catching her breath, diarrhea, pain in the stomach, a pit in the stomach, jelly legs, hot and cold flashes, crying, disturbances in sleeping, nightmares/daydreams, shivers, and intrusive thoughts and images related to the violence experienced at the hands of CW. The P's assessment indicated that the prognosis for complainant's PTSD is fair and that she would likely recover slowly in the next ten years. It also noted that complainant would be likely to be able to remain in full-time employment if she continued treatment. Therefore, the P recommended that complainant be afforded the opportunity to attend individual psychotherapy over a ten-year period beginning weekly for the first few months and then gradually decreasing as complainant improves. He noted that complainant had incurred costs of $ 7,200.00 for thirty-six sessions from October 18, 1999 through October 23, 2002. He also stated that, at a minimum, ten years of treatment would cost an additional $ 32,000.00. Statements from co-workers/friends indicate that they saw the pain and anguish complainant suffered due the harassment and inaction by the agency officials. They also noted an aggravation of complainant's asthma due to the stress of the long-term sexual harassment. One co-worker noted that the anxiety attacks complainant had became more frequent as time progressed. She also stated that she would have to go with complainant to the ladies room because complainant was afraid of relieving herself because she felt that CW would burst into the stall and attack her. In addition, she indicated that the harassment caused a strain on complainant's personal life. She noted that complainant no longer would drive because her nerves were so bad and would have uncontrollable crying bouts. The crying bouts were confirmed by another co-worker who was also complainant's roommate. He stated that complainant would often dream about the harassment and “would awake crying over these tormented issues.” The roommate indicated that the harassment dating back to 1993 cause complainant to suffer from: sleep deprivation, skin irritation, lack of appetite, severe headaches, depression, and loss of motivation to prepare meals or clean house. The agency issued a final decision regarding complainant's request for compensatory damages. The agency found complainant's request for $ 115,000.00 to be monstrously excessive and found that similar cases involving physical and emotional distress daily over a four year period awarded $ 20,000.00. The agency awarded complainant $ 12,000.00 in non-pecuniary damages. The agency also determined that complainant provided sufficient support for past pecuniary damages, therefore the agency agreed to pay $ 7,662.00 for medical expenses and $ 14,032.77 for use of annual leave, sick leave, and leave without pay. As for complainant's request for future pecuniary losses for medical expense and transportation costs to those medical treatments, the agency found that there was insufficient explanation why treatment would be needed for such duration. Accordingly, the request for those expenses was denied. Complainant appealed solely on the future pecuniary award and the non-pecuniary award. The agency asks that we affirm its FAD. ANALYSIS AND FINDINGS Legal Standards for an Award of Compensatory Damages Pursuant to section 102(a) of the Civil Rights Act of 1991, a complainant who establishes his or her claim of unlawful discrimination may receive, in addition to equitable remedies, compensatory damages for past and future pecuniary losses (i.e., out of pocket expenses) and non-pecuniary losses (e.g., pain and suffering, mental anguish). 42 U.S. C. § 1981a(b)(3). For an employer with more than 500 employees, such as the agency, the limit of liability for future pecuniary and non-pecuniary damages is $300,000. Id. The particulars of what relief may be awarded, and what proof is necessary to obtain that relief, are set forth in detail in EEOC Notice No. 915.002, Compensatory and Punitive Damages Available Under Section 102 of the Civil Rights Act of 1991 (July 14, 1992). Briefly stated, the complainant must submit evidence to show that the agency's discriminatory conduct directly or proximately caused the losses for which damages are sought. Id. at 11-12, 14; Rivera v. Department of the Navy, EEOC Appeal No. 01934157 (July 22, 1994). The amount awarded should reflect the extent to which the agency's discriminatory action directly or proximately caused harm to the complainant and the extent to which other factors may have played a part. EEOC Notice No. N 915.002 at 11-12. The amount of non-pecuniary damages should also reflect the nature and severity of the harm to the complainant, and the duration or expected duration of the harm. Id. at 14. In Carle v. Department of the Navy, the Commission explained that “objective evidence” of non-pecuniary damages could include a statement by the complainant explaining how he or she was affected by the discrimination. EEOC Appeal No. 01922369 (January 5, 1993). Statements from others, including family members, friends, and health care providers could address the outward manifestations of the impact of the discrimination on the complainant. Id. The complainant could also submit documentation of medical or psychiatric treatment related to the effects of the discrimination. Id. Non-pecuniary damages must be limited to the sums necessary to compensate the injured party for the actual harm and should take into account the severity of the harm and the length of the time the injured party has suffered from the harm. Carpenter v. Department of Agriculture, EEOC Appeal No. 01945652 (July 17, 1995). Nexus Between Alleged Harm and Discrimination The agency did not contest that complainant established a nexus between the harassment and her claim for pecuniary or non-pecuniary damages. Therefore, we find that complainant established a nexus between the alleged harm and the discrimination and therefore, is entitled to an award of pecuniary and non-pecuniary damages. Calculation of Damages Payable Future Pecuniary Losses We find that the P's evaluation clearly indicates that future treatments are necessary. Further the statements provided by complainant as well as co-workers and friends show that complainant is still haunted by the harassment experience. Therefore, we are not persuaded by the agency's analysis that complainant's request lacked explanation. Accordingly, we award complainant $ 32,000.00 for future medical expenses and $ 1,542.00 in future transportation expenses for those medical visits. Non-Pecuniary Losses Complainant has claimed that she should be awarded $115,000.00 in non-pecuniary compensatory damages. The agency awarded $ 12,000 noting that the Commission, in similar cases, awarded $ 20,000. We find that agency's award of $ 12,000 is insufficient based on the evidence provided by complainant in support of her claim and case precedent. We note that statements from others, including family members, friends, health care providers, and other counselors 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. United States Postal Serv., EEOC Appeal No. 01952288 (Apr. 18, 1996) (citing Carle v. Department of the Navy, EEOC Appeal No. 01922369 (Jan. 5, 1993)). Based on the statements provided and the record as a whole, complainant had been harassed by CW since 1993/1994. A review of the previous decision shows that CW continued to stalk complainant even in January 2002. Complainant's co-workers/friends clearly indicated the extent of the pain and anguish complainant suffered due to the years of harassment and the agency official's inaction. Further, the P has stated that complainant has been under his care and will continue to need ten more years of treatment in order to recover from the side effects of the harassment. Taking into account the evidence of non-pecuniary damages submitted by the complainant, we find her request for $ 115,000 to be appropriate. This amount takes into account the severity of the harm suffered, and is consistent with prior Commission precedent. See Santiago v. Department of the Army, Appeal No. 01955684 (Oct. 14, 1998) ($ 125,000 in non-pecuniary damages where complainant suffered depression and other emotional and mental disorders, and severe chest and stomach pains, digestive problems, and incidents of shortness of breath due to three years of verbal abuse and sex and age-based discrimination by her supervisor); Kelly v. Department of Veterans Affairs, EEOC Appeal No. 01951729 (July 29, 1998) ($ 100,000 awarded where subjection of aggrieved individual to hostile work environment caused her to develop severe psychological injury, from which she was still suffering at the hearing); Chow v. Department of the Army, EEOC Appeal No. 01981308 (August 5, 1999) ($ 100,000 for physical and mental suffering due to supervisor's harassment over two-year period). CONCLUSION Therefore, upon review of the record and statements on appeal, we modify the agency's FAD and order to the agency to take remedial actions in accordance with this decision and Order below. ORDER (C0900) The agency is ordered to take the following remedial action: The agency shall pay complainant $ 115,000 in non-pecuniary damages. The agency shall pay complainant $ 33,542.00 in future pecuniary losses. The agency shall pay complainant $ 7,662.00 for medical expenses and $ 14,032.77 for use of annual leave, sick leave, and leave without pay as requested by complainant and agreed to by the agency in its final decision. The agency shall complete all of the above actions within thirty (30) calendar days from the date on which the decision becomes final. 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. 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 (S0900) 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 (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 May 13, 2004 __________________ Date