Ivy E., Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service (Southeast Area), Agency. Appeal No. 0720130009 Hearing Nos. 510-2009-00254X; 510-2010-00148X Agency Nos. 1H-321-0006-09; 1H-321-0055-09 DECISION Following its November 9, 2012 final order, the Agency filed an appeal which the Commission accepts pursuant to 29 C.F.R. § 1614.405(a). On appeal, the Agency requests that the Commission affirm its rejection of an EEOC Administrative Judge's (AJ) finding of 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 the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq. The Agency also requests that the Commission affirm its rejection of the relief ordered by the AJ. For the following reasons, the Commission MODIFIES the Agency's final order. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Manager, Distribution Operations, at the Agency's Processing and Distribution Center facility in Jacksonville, Florida. On February 11, 2009, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the bases of her sex (female) and age (53) when: 1. on September 25, 2008, management denied her the position of Manager, In-Plant Support; 2. on October 3, 2008, management removed her from her detail position as Manager, In-Plant Support; and 3. from March 2007 through October 2008, management subjected her to a hostile work environment. Complainant filed a second complaint on September 16, 2009, alleging that the Agency discriminated against her on the bases of her race (Caucasian), sex, age, and in reprisal for prior protected EEO activity when: 4. on April 29, 2009, a vacancy announcement for the Manager, In-Plant Support position was posted only to EAS employees at the Network Distribution Center; and 5. on June 6, 2009, management did not select her for any of the vacant Manager, Distribution Operations positions. At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation and notice of her right to request a hearing before an EEOC Administrative Judge (AJ). Complainant timely requested a hearing which the AJ held, and the AJ subsequently issued a decision on October 1, 2012. The AJ found that Complainant established that she was subjected to age and sex discrimination when she was denied the position of Manager, In-Plant Support on September 25, 2008. The AJ also found that Complainant established that she was subjected to age discrimination when she was removed from her detail on October 3, 2008, and when the Agency limited the area of consideration for the vacancy announcement posted on April 29, 2009. The AJ found that Complainant did not establish she was discriminated against on the basis of sex regarding the October 3, 2008 and April 29, 2009 claims. Finally, the AJ found that Complainant failed to establish that she was subjected to a hostile work environment or discriminated against in claim (5). The Agency's final order affirmed the AJ's finding of no discrimination, and rejected the AJ's findings of sex and age discrimination. By way of remedies, the AJ ordered the Agency to: pay Complainant $130,000.00 in nonpecuniary, compensatory damages; restore and/or compensate her annual and sick leave (1,112.77 hours annual and 2,141.08 hours sick (less two days of sick leave)); compensate 578.15 hours of leave without pay; pay medical bills ($9,588.48), prescription expenses ($14,609.22), and mileage expenses to her medical appointments from October 6, 2008 through September 28, 2011 (7,313.68 miles); pay attorney's fees ($22,642.65) and costs ($146.22); and conduct EEO training for management officials in the Jacksonville District. Additionally, in accordance with Complainant's request, the AJ ordered the Agency to place Complainant in the Manager, In-Plant Support position and provide back pay from October 2008 through the present. We note, however, that subsequent to the AJ's decision and prior to the present appeal, Complainant voluntarily retired from employment and, therefore, placement into the position at issue is no longer an appropriate remedy. The Agency's final order affirmed the AJ's finding of no discrimination, and rejected the AJ's findings of sex and age discrimination. On appeal, however, the Agency states that it will implement those portions of the AJ's decision finding that Complainant established age discrimination with respect to claims (1), (2), and (4). The sole claim at issue in the Agency's appeal is the AJ's finding of sex discrimination with respect to Complainant being denied the Manager, In-Plant Support position on September 25, 2008 (claim (1)). Further, the Agency argues that because Complainant took voluntary retirement, any back pay should be limited to the date of her retirement. Finally, the Agency argues that the AJ's award of compensatory damages is excessive. The Agency does not dispute any other specific remedy. In her brief in opposition to the Agency's appeal, Complainant requests that we affirm the AJ's findings of discrimination. Complainant also requests that the Commission increase her compensatory damages award to $200,000.00. Complainant acknowledges that due to her retirement, the back pay award should be calculated from September 28, 2008, through the date of her retirement. Further, Complainant contends that due to her retirement she should be awarded front pay in lieu of reinstatement. ANALYSIS AND FINDINGS As an initial matter, we note that the Commission has discretion to review only the issues specifically raised on appeal. Equal Employment Opportunity Commission Management Directive for 29 C.F.R. § 1614 (EEO MD-11), at 9-10 (Nov. 9, 1999). The Commission declines to review the AJ's determinations with respect to claims (2) - (5) and the finding of age discrimination in claim (1) because the parties did not raise these matters on appeal . Pursuant to 29 C.F.R. § 1614.405(a), all post-hearing factual findings by an AJ will be upheld if supported by substantial evidence in the record. Substantial evidence is defined as "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Universal Camera Corp. v. National Labor Relations Board, 340 U.S. 474, 477 (1951) (citation omitted). A finding regarding whether or not discriminatory intent existed is a factual finding. See Pullman-Standard Co. v. Swint, 456 U.S. 273, 293 (1982). An AJ's conclusions of law are subject to a de novo standard of review, whether or not a hearing was held. An AJ's credibility determination based on the demeanor of a witness or on the tone of voice of a witness will be accepted unless documents or other objective evidence so contradicts the testimony or the testimony so lacks in credibility that a reasonable fact finder would not credit it. See EEOC Management Directive 110, Chapter 9, at § VI.B. (November 9, 1999). To prevail in a disparate treatment claim, Complainant must satisfy the three-part evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Complainant must initially establish a prima facie case by demonstrating that he was subjected to an adverse employment action under circumstances that would support an inference of discrimination. Furnco Construction Co. v. Waters, 438 U.S. 567, 576 (1978). Proof of a prima facie case will vary depending on the facts of the particular case. McDonnell Douglas, 411 U.S. at 804 n. 14. The burden then shifts to the Agency to articulate a legitimate, non-discriminatory reason for its actions. Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). To ultimately prevail, Complainant must prove, by a preponderance of the evidence, that the Agency's explanation is pretextual. Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133 (2000). Here, we concur with the AJ's determination that Complainant established that she was subjected to unlawful sex discrimination when the Agency denied her the position of Manager, In-Plant Support (MIPS) on September 25, 2008. The record shows that Complainant applied for the vacant MIPS position and was selected in August 2008, by Complainant's supervisor (S1). Following the selection, S1 forwarded Complainant's selection package to the Manager of Operations (S2) for final approval and funding. The record shows, however, that S2 instructed S1 not to go forward with Complainant's promotion because there was a hiring freeze in place despite the funding having been approved by S2's supervisor (S3). In her attempt to understand the discrepancy between what she was told by S2 and S3 regarding Complainant's selection for the MIPS position, S1 testified at the hearing that S2 told her, "[Complainant] will never get a promotion as long as I'm around." The record shows that despite S2's contention that a hiring freeze had been implemented, S2 approved the selection of a younger male employee (CW1) who was selected for a Maintenance Manager position at the same time Complainant was selected for the MIPS position. Additionally, the Manager of Human Resources testified that any vacancies that were posted prior to July 29, 2008, such as the MIPS position at issue, were not subjected to a freeze. On appeal, the Agency contends that Complainant failed to establish sex discrimination. The Agency argues that because Complainant was replaced by a female employee after she was removed from her detail to the MIPS position on October 3, 2008, she cannot show that she was subjected to unlawful sex discrimination. We do not agree. The evidence of record shows that S2 received the selection packages for both Complainant and CW1 at the same time, and that both Complainant and CW1 were selected for Manager positions. The record also shows that S2 approved funding for CW1's position, but insisted that there was a hiring freeze in place in order to deny funding for Complainant's position. Further, despite Complainant having successfully served in a detail to the MIPS position for a year, and S1 being the actual selecting official and stating that she believed Complainant to be the best candidate for the MIPS position, S2 stated that Complainant "did not have the skill set for the position." In finding that Complainant was subjected to sex discrimination, the AJ noted the hearing testimony of several witnesses including S1, who stated that Complainant was perceived as being intimidating to male employees because of her height of six feet and her strong personality. The AJ found that S2 denied Complainant the position of MIPS because of his stereotypical perceptions of how a female supervisor should behave. It is well settled that such sex-based stereotypes violate Title VII. See Price Waterhouse v. Hopkins, 490 U.S. 288, 250 (1989). Therefore, we concur with the AJ's finding of sex discrimination and find that substantial evidence supports the AJ's finding of sex discrimination.1 Compensatory Damages With respect to the compensatory damages award, we note that as there is no precise formula to calculate nonpecuniary damages, AJs are afforded broad discretion in determining such damage awards. An award of nonpecuniary damages should not be "monstrously excessive" standing alone, should not be the product of passion or prejudice, and should be consistent with the amount in similar cases. See Ward-Jenkins v. Department of the Interior, EEOC Appeal No. 01961483 (March 4, 1999) (citing Cygnar v. City of Chicago, 865 F.2d 848 (7th Cir 1989)). Here, based upon the evidence provided by Complainant, the AJ found that $130,000.00 was the appropriate award for Complainant's nonpecuniary, compensatory damages. The AJ based the award on Complainant's hearing testimony showing that as a result of the Agency's discrimination, she was diagnosed with depression and anxiety which left her incapacitated for a period of two years. She testified that during this time, she could not sleep, cried inconsolably, had trouble concentrating, would not leave the house, no longer wanted to participate in activities she used to enjoy, suffered loss of energy, had no patience with her children, lacked motivation, was unable to work, and would alternate between binge eating and lack of appetite which negatively impacted her physical health. Complainant's daughter testified that following the discriminatory events at issue, her mother was a "shell of a person that [she] had been raised with" and that "it was like walking into a black hole" when she attempted to interact with her. The AJ determined that Complainant suffered a drastic diminution of her quality of life, and that given the severity and duration of the harm, $130,000.00 was an appropriate remedy. Despite the Agency's arguments to the contrary, we concur with the AJ's determination that the Agency's discriminatory actions were the proximate and direct cause of Complainant's harm. We find that the amount awarded by the AJ is appropriate and consistent with the amount awarded in similar cases. See Jackson v. Department of the Air Force, EEOC Appeal No. 0720110036 (May 13, 2012) ($125,000.00 awarded in harassment case where complainant experienced anxiety, depression, post-traumatic stress disorder, sleep problems, loss of enjoyment of life, loss of self-esteem, damage to professional reputation, and withdrawal from relationships); Coopwood v. Department of Transportation, EEOC Appeal No. 0120083127 (May 2, 2012) ($150,000.00 awarded where discrimination caused complainant emotional and physical pain including depression, difficulty concentrating, insomnia, loss of enjoyment of life, withdrawal from relationships, weight fluctuations, and stomach problems); Brown-Fleming v. Department of Justice, EEOC Appeal No. 0120082667 (Oct. 28, 2010) ($150,000.00 awarded where discrimination caused complainant emotional and physical pain including depression, anxiety, social isolation, withdrawal from relationships, damage to professional reputation, nightmares, worsening abdominal pain, and weight loss); Durinzi v. United States Postal Service, EEOC Appeal No. 0120041946 (July 28, 2005) ($120,000.00 awarded where discrimination resulted in severe changed in personality and habits, including loss of self-esteem, anxiety, and depression). We find that this figure takes into account the nature, severity, and duration of Complainant's suffering, is consistent with other nonpecuniary compensatory damages awards, and is not "monstrously excessive" standing alone or derived from passion or prejudice. Back Pay and Front Pay Section 717(b) of Title VII, 42 U.S.C. 2000e-16(b) is the Commission's jurisdictional base for determining an agency's liability for back pay. This statutory provision authorizes the Commission to enforce the provisions of Section 717 through an assortment of remedial relief actions. Such relief, particularly an award of back pay, is designed to make the victim of discrimination 'whole' by placing him/her as near to the position he/she would have occupied, but for the discriminatory personnel action and to prevent the recurrences of similar actions in the future. Albemarle Paper Co. v. Moody, 422 U.S. 405, 418-419 (1975). On appeal, the Agency contends that the AJ's award of back pay from October 2008, through the present is inappropriate as Complainant has voluntarily retired from employment. We find that the Agency's argument is correct. Furthermore, Complainant agrees with that argument on appeal regarding back pay. To award Complainant back pay after the date of her retirement would constitute a windfall and as such, the AJ's order is modified with respect to back pay. In her brief in opposition to the Agency's appeal, Complainant states that because she has retired from employment with the Agency, she should be awarded front pay in lieu of reinstatement. Front pay is an equitable remedy that compensates an individual when reinstatement is not possible in certain limited circumstances. The Commission has identified three circumstances where front pay may be awarded in lieu of reinstatement: (1) where no position is available; (2) where a subsequent working relationship between the parties would be antagonistic; or (3) where the employer has a record of long-term resistance to anti-discrimination efforts. Tyler v. U.S. Postal Serv., EEOC Request No. 05870340 (Feb. I, 1988). In order for an individual to be eligible for an award of front pay, the individual must be available to work. See Finlay v. U.S. Postal Service, EEOC Appeal No. 01942985 (Apr. 30, 1997); York v. Dep't of the Navy, EEOC Appeal No. 01930435 (Feb. 25, 1994). We find that front pay is not appropriate in the instant matter. When discrimination is found, an Agency must provide an employee with a remedy that constitutes full, make whole relief to restore her as nearly as possible to the position she would have occupied absent the discrimination. See Albermarle Paper Co. v. Moody, 422 U.S. 405, 418-19 (1975). In this case, Complainant voluntarily retired from employment with the Agency and she has not raised a claim of constructive discharge. Therefore, we find that awarding her front pay would be providing her with more than make whole relief. CONCLUSION After a careful review of the record, we discern no basis to disturb the AJ's finding of sex discrimination. The findings of fact are supported by substantial evidence, and the AJ correctly applied the appropriate regulations, policies, and laws. Accordingly, we MODIFY the Agency's final order and direct the Agency to comply with the ORDER herein. ORDER To the extent it has not already done so, the Agency is ordered to take the following remedial actions within 60 days of the date this decision becomes final: (1) The Agency shall determine the appropriate amount of back pay, with interest, due Complainant for the period October 1, 2008, through the date of her retirement, pursuant to 29 C.F.R. §1614.501. Complainant shall cooperate in the Agency's efforts to compute the amount of back pay due, and shall provide all relevant information requested by the Agency. If there is a dispute regarding the exact amount of back pay, the Agency shall issue a check to Complainant for the undisputed amount within 60 calendar days of the date the Agency determines the amount it believes to be due. Complainant may petition for enforcement or clarification of the amount in dispute. (2) The Agency shall restore and/or compensate Complainant for leave taken between October 4, 2008, and the date of her retirement. This was calculated as 2,141.08 hours of sick leave minus two days taken for surgery on her hand, 1,112.77 hours of annual leave, and compensation equivalent to 578.15 hours of leave without pay. (3) The Agency shall pay Complainant $130,000.00 in nonpecuniary, compensatory damages. (4) The Agency shall pay Complainant $9,588.48 for reimbursement of medical bills and $14,609.22 for reimbursement of prescription medication. (5) The Agency shall reimburse Complainant's mileage in the amount of 7,313.68 miles times the General Services Administration established rates in effect for the years 2008-2010. (6) The Agency shall pay attorney's fees in the amount of $22,642.65 and costs in the amount of $146.22. (7) The Agency shall provide a minimum of eight hours of EEO training to all responsible management officials in the Jacksonville District regarding their responsibilities under EEO laws, with a special emphasis on Title VII and the ADEA. (8) The Agency shall consider taking appropriate disciplinary action against all responsible management officials still employed by the Agency. The Commission does not consider training to be disciplinary action. The Agency shall report its decision to the Compliance Officer. If the Agency decides to take disciplinary action, it shall identify the action taken. If the Agency decides not to take disciplinary action, it shall set forth the reason(s) for its decision not to impose discipline. If any of the responsible management officials have left the Agency's employment, then the Agency shall furnish documentation of the departure date(s). 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 evidence that corrective action has been implemented. POSTING ORDER (G0610) The Agency is ordered to post at its Processing and Distribution Center Jacksonville, Florida facility copies of the attached notice. Copies of the notice, after being signed by the Agency's duly authorized representative, shall be posted by the Agency within thirty (30) calendar days of the date this decision becomes final, and shall remain posted for sixty (60) consecutive days, in conspicuous places, including all places where notices to employees are customarily posted. The Agency shall take reasonable steps to ensure that said notices are not altered, defaced, or covered by any other material. The original signed notice is to be submitted to the Compliance Officer at the address cited in the paragraph entitled "Implementation of the Commission's Decision," within ten (10) calendar days of the expiration of the posting period. ATTORNEY'S FEES (H0610) If Complainant has been represented by an attorney (as defined by 29 C.F.R. § 1614.501(e)(1)(iii)), 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 May 14, 2014 Date 1 As we have affirmed the AJ's finding of sex discrimination under Title VII, we also affirm Complainant's entitlement to attorney's fees and damages in accordance with the AJ's order. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ 2 0720130009 U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 2 0720130009