Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service (Eastern Area), Agency. Appeal No. 0720130028 Hearing No. 470-2011-00109X Agency No. 1C431000410 DECISION Following its June 20, 2014, final order, the Agency filed a timely 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. The Agency also requests that the Commission affirm its rejection of the relief ordered by the AJ. For the following reasons, the Commission REVERSES the Agency's final order. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Level 4 Mail Handler Equipment Operator at the Agency's Columbus Processing and Distribution Center in Columbus, Ohio. On March 31, 2010, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the bases of race (Caucasian), sex (female), and reprisal for prior protected EEO activity when she was subjected to sexual harassment from mid October 2009 until January 2010. 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 and the AJ held a hearing on June 5 and 6, 2012, and issued a decision on May 9, 2013. In his decision, the AJ found the following facts: Complainant worked as a Level 4 Mail Handler Equipment Operator on the dock on Tour 3, between the hours of 2:00 p.m. until 10:30 p.m. In her position, Complainant was periodically assigned to drive a dock vehicle, which she preferred because of a prior back injury. In October 2009, a co-worker (hereinafter referred to as KH), began making unwanted comments to complaint about her appearance. Specifically, KH stated, ""you look much prettier when you smile"; "Is that a new hairdo, because it looks really good today"; "I like a woman who fixes herself up and look nice"; "Can I ask you a personal question?"; "Are you married?"; and "If you're married, he's a lucky man because you're a good looking woman." KH also referred to Complainant as "sweetheart" on numerous occasions. Complainant also felt that KH would stare at her and go out of his way to be near her. Ultimately, Complainant told KH to stop the behavior. Soon after, KH was appointed to a 204B position, and worked as Complainant's supervisor.1 The AJ found that as soon as KH became Complainant's supervisor, he stopped assigning other co-workers to assist her, as he had done previously. Complainant contacted two different members of management about Complainant's behavior, and then on October 30, 2009, she filed a union grievance which cited safety issues and harassment by KH.2 In November 2009, KH stopped assigning Complainant the driving assignments, and assigned them to men with less seniority, or who were not eligible because they were not present at the start of the Tour. The AJ found that these driving assignments would have entitled Complainant to Level 5 pay and were preferred assignments. The AJ found that Complainant reported the harassment to management on several other occasions. On November 13, 2009, Complainant told the Supervisor of Distribution Operations that she was being denied job preferences daily. Complainant also informed a female Supervisor of Distribution Operations, who told Complainant they were trying to take care of the matter. Ultimately, in late November or early December Complainant contacted the Manager of In-Plant Support, about the hostile work environment. The Manager of In-Plant Support told Complainant she would try and get another supervisor to work closer to KH to keep an eye on him, but to keep their meeting a secret. Soon thereafter, the Manager of In-Plant Support changed her mind and ordered a sexual harassment investigation. During the investigation, Complainant was removed from her position at the the dock to the 010 unit. Even still, she described that KH would continue to go out of his way to stare at her. Complainant states that she was not informed of the procedures of the investigation, and reports that the investigator did not take any notes.3 The investigation confirmed the allegations, but concluded no conduct of a sexual nature had occurred. Once the investigation concluded, Complainant was returned to the dock. She decided she could not work with KH, so she bid on a position on Tour 1, from 10:00 p.m. to 6:30 a.m. As a result, Complainant was not on the same shift as her husband. The AJ found Complainant established a prima facie case of sexual harassment because she credibly testified about unwelcome comments and advances that were of a sexual nature. The AJ found the conduct was severe, pervasive and caused a hostile work environment. The AJ analyzed the Agency's liability based on KH as a coworker, and then as a supervisor. The AJ found that the Agency was liable for the harassment because once it learned of the harassment, it failed to take prompt effective remedial relief. The AJ relied on several facts to support this conclusion; specifically, that Complainant reported the matter to management several times, and then in a formal grievance. Several mail handlers credibly testified that Complainant was seen crying on numerous occasions. Further, the AJ found that although it ultimately conducted an investigation in December 2009, the investigation was not a serious exercise because of its clearly erroneous conclusion. Furthermore, the Agency did not effectively remediate the harassment because it removed Complainant, not KH, to another unit as an attempt to curtail the harassment, even though allegations from others were surfacing at the time. Furthermore, there was evidence that KH continued staring at Complainant in her new unit. The AJ then analyzed the claim based on KH's supervisory authority over Complainant. Specifically, the AJ found that once KH began denying Complainant driving assignments, this resulted in a tangible employment action, and the Agency was now strictly liable for retaliatory harassment. Nevertheless, the AJ also analyzed whether the Agency had established its affirmative defense. The AJ found the Agency failed to exercise reasonable care in preventing or promptly correcting the harassment because it was well aware of KH's harassment, yet it promoted him to the 204B position, and allowed his behavior to continue. The AJ also found that the Agency failed to prove that Complainant unreasonably failed to take advantage of any preventive or corrective opportunities provided by the Agency or to avoid harm otherwise. Accordingly, the AJ found Complainant established she was subjected to harassment based on her sex and in retaliation for her prior EEO activity. The AJ found no evidence that Complainant was harassed based on her race. As relief, the AJ ordered restoration of the annual and sick leave taken because of the discriminatory acts. Furthermore, he ordered $120,000.00 in non-pecuniary compensatory damages, and out of pocket pecuniary damages in the amount of $10,177.61. The AJ ordered the Agency to pay $56,934.00 in attorney fees and and costs in the amount of $3,106.64. On June 20, 2013, the Agency subsequently issued a final order which stated: "The Agency has reviewed the record, including the transcripts of the hearing held on June 5 and 6, 2012, and will partially implement and will appeal the portion of the decision of the Administrative Judge awarding certain remedies." On June 24, 2013, the Agency filed it appeal, and on July 10, 2013, filed its brief in support of its appeal. CONTENTIONS ON APPEAL On appeal, the Agency contends that the AJ erred in several material respects. The Agency asserts that the AJ erred in finding that the Agency was liable for the harassment which took place in October 2009 because Complainant admitted she did not immediately inform management about KH's conduct. Second, the Agency also contends that pursuant to the recent case Vance v. Ball State University, 133 S. Ct. 2434 (2013), KH was not Complainant's supervisor because he did not have the power to hire, fire, demote or promote. Finally, the Agency also contends that the AJ erred when he awarded Complainant such a large compensatory damage award. In response, the Complainant contends that the Agency failed to preserve its appeal of the AJ's liability decision. Complainant asserts that the plain reading of the language in the Agency final order was that it was planning on appealing only the AJ's remedial order, and thus, has waived any appeal of the liability finding. As further support, Complainant provides a document dated July 23, 2013 supporting the position that the Agency began implementation of the decision with respect to the restoration of leave. To the extent that the Commission entertains the Agency's liability arguments, Complainant contends that the Agency was aware of the harassment, so Complainant's failure to report it in October 2009 is not determinative. Complainant also submits that KH was in fact Complainant's supervisor, so even if the Commission finds that the Agency properly appealed the liability part of the decision, the facts support his designation as her supervisor. Finally, she contends that the compensatory damage aware was not excessive. ANALYSIS AND FINDINGS 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). After a careful review of the record, we find the AJ's decision is supported by substantial evidence in the record. In so finding, we note that the only matter appealed and before us now is the Agency's Notice of Final Action dated June 20, 2013, which "partially implement[ed]...the portion of the decision of the Administrative Judge awarding certain remedies." Although the Agency included arguments related to its liability for sexual harassment in its brief on appeal, it had already issued its Notice of Final Action implementing the AJ's liability finding, and thus, waived its right to appeal the AJ's liability finding. Pursuant to 29 C.F.R. § 1614.110(a), if an agency decides not to fully implement the decision of an administrative judge then it must first issue a final order and then simultaneously file an appeal with the Commission in accordance with § 1614.403. If the agency does not issue a final order and file an appeal simultaneously with the issuance of the order, the AJ's decision will be deemed ratified by the agency upon the expiration of the agency's 40-day period for accepting or not accepting the AJ's decision. See 29 C.F.R. § 1614.109(i). See Sullivan v. Dept of Army, EEOC Appeal Nol. 0120055812 (10/5/07)(agency waived appeal arguments when it implemented AJ's decision). REMEDIES Because discrimination was found, the Agency must provide Complainant 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, e.g., Franks v. Bowman Transport. Co., 424 U.S. 747, 764 (1976); Albermarle Paper Co. v. Moody, 422 U.S. 405, 418-19 (1975); Adesanya v. U.S. Postal Serv., EEOC Appeal No. 01933395 (July 21, 1994). Pursuant to Section 102(a) of the Civil Rights Act of 1991, a Complainant who establishes unlawful intentional discrimination under Title VII may receive 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) as part of this "make whole" relief. 42 U.S.C. § 1981a(b)(3). In West v. Gibson, 527 U.S. 212 (1999), the Supreme Court held that Congress afforded the Commission the authority to award compensatory damages in the administrative process. 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. 42 U.S.C. § 1981a(b)(3). Non-pecuniary losses are losses that are not subject to precise quantification, i.e., emotional pain, suffering, inconvenience, mental anguish, loss of enjoyment of life, injury to professional standing, injury to character and reputation, injury to credit standing, and loss of health. See EEOC Enforcement Guidance: Compensatory and Punitive Damages Available Under Section 102 of the Civil Rights Act of 1991, EEOC Notice No. 915.002, at I1.A.2 (July 14, 1992). 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). The Commission notes that non-pecuniary compensatory damages are designed to remedy the harm caused by the discriminatory event rather than punish the Agency for the discriminatory action. Further, compensatory damages should not "monstrously excessive" standing alone, should not be the product of passion or prejudice, and should be consistent with the amounts awarded in similar cases. See Ward-Jenkins v. Dep't of the Interior, EEOC Appeal No. 01961483 (Mar. 4, 1999) (citing Cyngar v. City of Chicago, 865 F.2d 827, 848 (7th Cir. 1989)). Evidence from a health care provider or other expert is not a mandatory prerequisite for recovery of compensatory damages for emotional harm. See 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)). Objective evidence of compensatory damages can include statements from a Complainant concerning 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 nonpecuniary losses that are incurred as a result of the discriminatory conduct. Id. Statements from others including family members, friends, health care providers, 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. Id. A Complainant's own testimony, along with the circumstances of a particular case, can suffice to sustain her burden in this regard. Id. The more inherently degrading or humiliating the defendant's action is, the more reasonable it is to infer that a person would suffer humiliation or distress from that action. Id. The absence of supporting evidence, however, may affect the amount of damages appropriate in specific cases. Id. We therefore turn our attention to the matter at hand, which was the AJ's award of "certain remedies." In the decision the AJ found Complainant was owed both pecuniary and non pecuniary damages. In so finding, the AJ noted that Complainant credibly testified that she had a previous back injury, and also suffered from depression, both of which were alleviated when her back improved by 2009. However, the harassment caused these issues to resurface and Complainant reported feeling paranoid, anxious and depressed. Complainant suffered from insomnia, difficulty with marital relations and sought out medical help and counseling with the Agency's Employee Assistance Program. She recounts she was intimidated by KH and felt the only solution was to bid on a different tour than her husband. Accordingly, the AJ awarded $120,000.00 in non-pecuniary damages. Although the Agency argues that this amount is excessive and not in line with Commission precedent, we disagree, and find the AJ's award was not overly excessive given the facts of this case. We find given the length of the distress (2009-2012), the award is supported by Commission precedent. See Fivecoat v. Dep't of the Air Force, EEOC Appeal No. 0720110035 (May 15, 2012) ($100,000 awarded as result of a discriminatory hostile work environment where Complainant experienced depression, digestive problems, sleep disturbances, crying spells, and episodic high blood pressure); Jackson v. Dep't of the Air Force, EEOC Appeal No. 0720110036 (Mar. 13, 2012) ($125,000 awarded in 19-month 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); Robinson v. Dep't of the Treasury, EEOC Appeal No. 0720070015 (May 22, 2008) ($85,000 awarded as a result of a discriminatory hostile work environment that resulted in emotional pain and suffering, mental anguish, health problems, anxiety, stress, depression, loss of self-esteem, and excessive fatigue); Morrison v. U.S. Postal Serv., EEOC Appeal No. 07A50003 (Apr. 18, 2006) ($90,000 awarded in one-year harassment case where Complainant experienced depression, anxiety, sleeplessness, post-traumatic stress disorder, and where Complainant's psychological trauma continued well past the date she resigned from the Agency). The Agency also generally challenges the AJ's award of pecuniary damages. We find no reason to alter the pecuniary award. The Agency does not challenge the remaining remedies, including the $56,934.00 attorney's fee award, and therefore, we find no reason to disturb the AJ's conclusions with respect to the remaining remedies. CONCLUSION Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we REVERSE the Agency's final action, and REMAND the matter to the Agency in accordance with the ORDER below. ORDER (D0610) The Agency is ordered to take the following remedial action: 1. Within one hundred and twenty (120) days from the date this decision becomes final, the Agency shall restore to Complainant a total of 52.2 hours of annual leave and 192 hours of sick leave that she took as a result of the stress from the harassment. 2. Within one hundred and twenty (120) days from the date this decision becomes final, the Agency shall tender Complainant $120,000.00 in non-pecuniary compensatory damages and $10,177.61 in pecuniary damages. 3. Within one hundred and twenty (120) days from the date this decision becomes final, the Agency shall pay Complainant's attorney reasonable attorney's fees in the amount of $56,934.00 and $3,106.64 in costs. 4. The Agency shall provide at least eight (8) hours of EEO training to the responsible management officials regarding their responsibilities under EEO laws, particularly Title VII. 5. The Agency shall consider taking appropriate disciplinary action against the responsible management officials. 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 the responsible management officials have left the Agency's employ, the Agency shall furnish documentation of their departure dates. 6. The Agency shall amend its personnel records pertaining to Complainant to expunge all references to the fact of, or reasons for, the filing of the instant complaint. 7. The Agency shall post a notice in accordance with the paragraph below. 8. 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 of the Agency's calculation of backpay and other benefits due Complainant, including evidence that the corrective action has been implemented. POSTING ORDER (G0914) The Agency is ordered to post at its Columbus Processing and Distribution Center in Columbus, Ohio facility copies of the attached notice. Copies of the notice, after being signed by the Agency's duly authorized representative, shall be posted both in hard copy and electronic format by the Agency within 30 calendar days of the date this decision becomes final, and shall remain posted for 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 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 (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 (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 June 10, 2015 __________________ Date 1 A 204B serves as a Supervisor in an "acting" role for a temporary period of time. 2 Ultimately, management sustained the grievance. 3 The investigator passed away prior to the hearing. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ 2 07-2013-0028 U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 2 0720130028