Sona B., Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service (Western Area), Agency. Appeal No. 0720140002 Hearing No. 551-2012-00107X Agency Nos. 1E-981-0006-11, 1E-981-0047-11 DECISION Following its October 4, 2013 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, in part, 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 Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq. For the following reasons, the Commission REVERSES the portion of the Agency's final order concerning the finding by the AJ of sexual harassment and AFFIRMS the portion of the Agency's final order finding discrimination. BACKGROUND The record indicates that Complainant filed two complaints which were subsequently consolidated for further processing, alleging that: (1) Complainant was discriminated against based on race (African American), color (black), age (over 40), and sex (female) when: on November 1, 2010, she was harassed and threatened by a coworker; on November 3, 2010, she was forced to attend a meeting with the alleged harasser's supervisor and the alleged harasser and denied representation; and on November 5, 2010, she became aware that the incident was not reported to the Inspection Service, causing her to leave work due to the stress on November 6, 2010.1 (2) Complainant was discriminated against based race (African American), color (black), age (over 40), sex (female), disability (chronic foot problems), and in reprisal for prior EEO activity when on June 13, 2011, she was told in a "nasty way" that there was no light duty work available within her restrictions, she was sent home, and she was not returned to work. (3) Complainant was discriminated against based on disability (chronic foot problems) and in reprisal for prior EEO activity when in February 2011, she was denied her continued use of a chair as a reasonable accommodation. At the conclusion of the investigation, Complainant requested a hearing before an AJ. On August 22, 2013, the AJ, after a hearing, issued a decision finding discrimination when Complainant was subjected to a hostile work environment described in claim (1) (based on sex) and when she was denied a reasonable accommodation described in claim (3) based on her disability and in reprisal for prior EEO activity. The AJ, however, found no discrimination based on race, color, or age, described in claim (1) and no discrimination as described in claim (2). The AJ noted that Complainant had been employed by the Agency since 1980. In 1988, Complainant was diagnosed with Talar Dome Lesion Neuroma on her foot and ankle, and in 1991, she had surgery on her foot. The AJ stated that Complainant's foot and ankle condition was permanent and affected the major life activities of stooping, bending, pushing, pulling, extended walking, and standing. Complainant's permanent restrictions included: up to 2 hours/day lift/carry; intermittent push/pull; up to 6 hours/day reach above shoulder; up to 4 hours/day simple grasp/fine manipulation; and no climb/bend/stoop/kneel. During the relevant time period at issue, Complainant was employed as an Unassigned Regular Clerk at the Agency's Seattle P&DC, Seattle, Washington. To accommodate her conditions, Complainant was assigned to a light duty assignment in the Manual Section and her duties included casing letter mail, tray Netflix, patchwork, and prepare "PS Forms 3579." Complainant claimed that on November 1, 2010, she was sitting in the break room early morning when an Employee (EE) was washing his face and rinsing his mouth in the sink. When she told EE about the note over the sink stating no washing or spitting in the sink, EE threw his napkin across the room and called her a "bitch" and he went and got his supervisor (S1). Then, in the presence of S1, EE hit the table and told her that she "was not safe off the clock." Complainant also claimed that she told S1 that she felt harassed by EE's remarks. S1 reported the incident to management and the Postal Inspection Service. The AJ noted that the Supervisor of Maintenance conducted the investigative interview with EE and during that interview EE denied making the alleged threatening remark to Complainant. The Supervisor of Maintenance, believing EE's statement, thought a letter of warning would be proper discipline for EE and conducted no further investigation of the incident. The AJ noted that S1 issued EE a letter of warning on November 4, 2010. The record also indicates that on November 3, 2010, management held a meeting with EE and Complainant wherein Complainant's request for the presence of her union steward at the meeting was denied. During the meeting, EE apologized for calling Complainant a "bitch," but EE did not apologize about his purported threat to her. When Complainant mentioned that EE should have been escorted out of the building and placed on emergency placement after the November 1 incident, EE became angry and told her if he had been walked out of the building, she should have been walked out of the building too. Complainant claimed that although she told S1 that she felt frightened and harassed by EE's action and remarks on November 1, 2010, she learned on November 5, 2010, that management did not formally investigate her harassment complaint. Complainant also claimed that on November 5, 2010, she contacted an EEO Counselor regarding the foregoing incidents and on November 6, 2010, feeling frightened for her safety, anxious, and depressed, she left work. In February, 2011, when she came back to work, claimed Complainant, she was denied a reasonable accommodation, i.e., not being allowed to use a chair she had been using since 2008. Also, Complainant claimed that on June 13, 2011, management informed her that they had no more work for her and sent her home. The record indicates that Complainant has not returned to work since June 13, 2011, and that she received backpay for the period of June 2011, until August 2012, as a result of a union grievance. The AJ held a hearing concerning Complainant's complaint and issued her decision. The AJ found no discrimination when in November 2010, Complainant was subjected to a hostile work environment based on race, color, or age, described in claim (1), and when on June 13, 2011, she was told by management that they had no more work for her and was sent home based on race, color, age, sex, disability, or in reprisal, described in claim (2). The AJ, however, found discrimination when Complainant was subjected to a hostile work environment in November 2010, based on sex, described in claim (1), and when in February 2011, she was denied a reasonable accommodation based on disability and in reprisal, described in claim (3). As remedies for the discrimination, the AJ awarded Complainant, among other remedies: $1,368 in pecuniary compensatory damages; $35,000 in nonpecuniary, compensatory damages; and reasonable attorney's fees.2 The Agency subsequently issued its decision (and simultaneously appealed) rejecting the AJ's finding of discrimination (and remedies) that Complainant was subjected to a hostile work environment on the basis of sex, described in claim (1). The Agency, however, did not dispute the AJ's finding concerning claim (2) and finding of discrimination concerning claim (3). In response to the Agency's appeal, Complainant argues that the AJ's finding of discrimination with regard to claims (1) and (3) was proper. Complainant does not dispute the AJ's finding of no discrimination concerning claim (2) or the finding of no race, color, or age discrimination in claim (1). Complainant appeals the AJ's award of $35,000 nonpecuniary, compensatory damages by contending that she is entitled to compensatory damages of $150,000. ANALYSIS AND FINDINGS Initially, we note that since Complainant and the Agency did not appeal the Agency's finding of no discrimination concerning claim (2) and no discrimination on the bases of race, color, or age in claim (1), we will not discuss these issues in this decision. 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, § VI.B. (November 9, 1999). Claim (1) Complainant claimed that in November 2010, she was subjected to harassment based on sex. We note that harassment of an employee that would not occur but for the employee's race, color, sex, national origin, age, disability, or religion is unlawful. McKinney v. Dole, 765 F.2d 1129, 1138-1139 (D.C. Cir. 1985). A single incident or group of isolated incidents will not be regarded as discriminatory harassment unless the conduct is severe. Walker v. Ford Motor Co., 684 F.2d 1355, 1358 (11th Cir. 1982). Whether the harassment is sufficiently severe to trigger a violation of Title VII must be determined by looking at all the circumstances, including the frequency of the discriminatory conduct, its severity, whether it is physically threatening or humiliating, or a mere offensive utterance, and whether it unreasonably interferes with an employee's work performance. Harris v. Forklift Systems, 510 U.S. 17 (1993). To establish a claim of hostile work environment, as alleged by Complainant, she must show that: (1) she is a member of a statutorily protected class; (2) she was subjected to harassment in the form of unwelcome verbal or physical conduct involving the protected class; (3) the harassment complained of was based on the statutorily protected class; (4) the harassment affected a term or condition of employment and/or had the purpose or effect of unreasonably interfering with the work environment and/or creating an intimidating, hostile, or offensive work environment; and (5) there is a basis for imputing liability to the employer. See McCleod v. Social Security Admin., EEOC Appeal No. 01963810 (August 5, 1999) (citing Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982)). The AJ found Complainant's testimony credible that EE's sex-based utterance on November 1, 2010, and threat caused her fear and anxiety and created a hostile work environment. On appeal, the Agency contends that there is no basis for imputing liability to the Agency since they did not know EE threatened Complainant on the date of the incident. We note that where, as here, the alleged harassment is perpetrated by a coworker, liability is imputed to the employer if it knew or should have known of the misconduct and failed to take immediate and appropriate corrective action. See Policy Guidance on Current Issues of Sexual Harassment, EEOC Notice No. N-915-050 at 29-30 (March 19, 1990); Owens v. Department of Transportation, EEOC Request No. 05940824 (September 5, 1996). In this case, the AJ found that S1 was made aware that Complainant felt harassment due to EE's threat on November 1 incident and S1 informed management and the Postal Inspector of the incident. The AJ also found that S1 credibly testified that S1 knew that EE lied to the Supervisor of Maintenance during his interview denying his threat to Complainant leading to no further investigation of the matter. The AJ further found that EE's other derogatory remark (regarding that Complainant should have been escorted from the building) further contributed to harassment experienced by Complainant. We agree with the AJ that the harassment was sufficient to create a hostile work environment. After a review of the record, despite the Agency's contentions, we find that liability is imputed to the Agency since the Agency failed to take immediate and appropriate corrective action. We also find that the AJ properly found that management, including S1, failed to ensure Complainant that she would be safe on the job with no further harassment from EE. Claim (3) Complainant claimed that she was denied reasonable accommodation in February 2011, when she came back to work after leaving work on November 6, 2010. We note that the Rehabilitation Act of 1973 prohibits discrimination against qualified disabled individuals. See 29 C.F.R. § 1630. In order to establish that Complainant was denied a reasonable accommodation, she must show that: (1) she is an individual with a disability, as defined by 29 C.F.R. § 1630.2(g); (2) she is a qualified individual with a disability pursuant to 29 C.F.R. §1630.2(m); and (3) the Agency failed to provide a reasonable accommodation. See Enforcement Guidance: Reasonable Accommodation and Undue Hardship under the Americans with Disabilities Act, EEOC No. 915.002 (Oct. 17, 2002) ("Enforcement Guidance"). Under the Commission's regulations, an Agency is required to make reasonable accommodation to the known physical and mental limitations of a qualified individual with a disability unless the Agency can show that accommodation would cause an undue hardship. See 29 C.F.R. §1630.2(o) and (p). In this case, the parties do not dispute the fact that Complainant is an individual with a disability. The AJ found and the Agency does not dispute that it failed to accommodate Complainant when she came back to work in February 2011. The AJ stated that Complainant's supervisor told Complainant in February 2011, that she could no longer accommodate her with a chair which she had been using since 2008 without incident to alleviate her symptoms of her disability while sorting mail. The AJ found that the denial of the chair was both a failure to reasonably accommodate Complainant's disability and was also motivated by retaliation. Compensatory Damages We note that damage awards for emotional harm are difficult to determine and that there are no definitive rules governing the amount to be awarded in given cases. A proper award must meet two goals: that it not be "monstrously excessive" standing alone, and that it be consistent with awards made in similar cases. See Cygnar v. City of Chicago, 865 F.2d 827, 848 (7th Cir. 1989). Section 102(a) of the 1991 Civil Rights Act authorizes an award of compensatory damages for all post-act pecuniary losses, and for nonpecuniary losses, such as, but not limited to, emotional pain, suffering, inconvenience, mental anguish, loss of enjoyment of life, injury to character and reputation, and loss of health. To receive an award of compensatory damages, Complainant must demonstrate that she has been harmed as a result of the Agency's discriminatory action; the extent, nature and severity of the harm; and the duration or expected duration of the harm. Rivera v. Department of the Navy, EEOC Appeal No. 01934157 (July 22, 1994), request for reconsideration denied, EEOC Request No. 05940927 (December 8, 1995); EEOC's Enforcement Guidance: Compensatory and Punitive Damages Available Under Section 102 of the Civil Rights Act of 1991, EEOC Notice No. 915.002 at 11-12, 14 (July 14, 1992) ("Guidance"). Complainant is required to provide objective evidence that will allow an agency to assess the merits of her request for damages. See Carle v. Department of the Navy, EEOC Appeal No. 01922369 (January 5, 1993). Furthermore, the award should take into account the severity and duration of the harm. Carpenter v. Department of Agriculture, EEOC Appeal No. 01945652 (July 17, 1995). In determining compensatory damages, the Commission strives to make damage awards for emotional harm consistent with awards in similar cases. In this case, the AJ found that Complainant was credible in testifying about the events of November 2010, and about the fear she experienced at the time of the incidents, as well as the stress, anxiety, and depression she felt as a result. The AJ also found Complainant's psychologist credibly testified that: he initially diagnosed her in November 2010, with post-traumatic stress disorder with the collateral symptoms of agoraphobia and depression as a direct result of the November 1, 2010 incident; she was having nightmares, flashbacks, staying home all of the time, and stopped socializing with friends; and he saw her on a weekly basis for a month and a half, then every two weeks, and then every month since the end of 2011. Complainant contends on appeal that she is entitled to nonpecuniary, compensatory damages of $150,000. After a thorough review of the record, and given the severity, nature, and duration of distress experienced by Complainant as a direct result of the discrimination, we find that the AJ's award of $35,000 for her emotional distress in nonpecuniary, compensatory damages is supported by substantial evidence. Also, we find this award is not motivated by passion or prejudice, not "monstrously excessive" standing alone, and consistent with the amounts awarded in similar cases. See, e.g., Hyde v. Department of Justice, EEOC Appeal No. 0120073964 (November 24, 2009) ($35,000 awarded for emotional harm, deteriorated marital relationship, crying spells due to the discrimination); Speaks v. Department of Defense, EEOC Appeal No. 01A31726 (March 18, 2004) ($35,000 awarded for stress disorder, nausea, lost appetite, unable to eat or sleep, gastrointestinal problems, lost weight, and depression due to the Agency's discrimination and abusive treatment by her supervisor); Campbell v. Department of Justice, EEOC Appeal No. 01A40538 (September 14, 2005) ($33,000 awarded for stress, excessive weight gain from nervous eating, insomnia, and nightmares due to the supervisor's sexual harassment). Upon review, we find that the AJ's award of $35,000 for Complainant's psychological symptoms and emotional distress due to the discrimination was proper. This amount takes into account the harm from the denial of accommodation in claim (3). Complainant has not challenged or shown that the AJ's award of pecuniary damages was inadequate. We shall order the Agency to comply with the remedies ordered by the AJ as stated herein. CONCLUSION After a review of the record in its entirety, including consideration of all statements submitted on appeal, the Agency's final action finding no discrimination as alleged in claim (1) based on sex is REVERSED. The Agency's decision finding discrimination in claim (3) based on disability and in retaliation for prior protected EEO activity is AFFIRMED. The Agency shall comply with the Order herein. ORDER The Agency shall take the following actions if it has not already done so: A. The Agency, within 60 days from the date this decision becomes final, shall pay Complainant $1,368 in pecuniary, compensatory damages and $35,000 in nonpecuniary, compensatory damages. B. The Agency, within 120 days from the date this decision becomes final, shall conduct EEO training for managers, supervisors, and employees at the Seattle P&DC facility, to insure that they become aware, and continue to be aware of, their obligations, responsibilities, and rights under EEO law, including rights under the Rehabilitation Act and the right to work in an environment free from reprisal discrimination. C. The Agency, within 120 days of the date this decision becomes final, shall consider taking appropriate disciplinary action against the responsible management officials. The Agency shall report its decision to the Compliance Officer, referenced herein. 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 their 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 supporting documentation verifying that all of the corrective action has been implemented. POSTING ORDER (G0914) The Agency is ordered to post at all facilities within the authority of the Seattle P&DC 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 (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 December 12, 2014 Date 1 The record indicates that the Agency, on January 21, 2011, dismissed this claim in Agency No. 1E-981-0006-11 pursuant to 29 C.F.R. §§ 1614.107(a)(1) and (2). Upon Complainant's appeal, the Commission, in EEOC Appeal No. 0120111871 (October 7, 2011), reversed the Agency's decision and remanded the claim for further processing. 2 On September 24, 2013, Complainant's attorney filed with the AJ a verified claim for attorney's fees of $206,099.35. On April 4, 2014, the AJ awarded $80,035.41 in attorney's fees. On September 25, 2014, the attorney appealed the AJ's award of attorney's fees which is pending in EEOC Appeal No. 0120150240. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ 2 0720140002 U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 2 0720140002