Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service (Southeast Area), Agency. Appeal No. 0120133316 Agency No. 4H300026206 DECISION On December 2, 2011, Complainant filed an appeal from the Agency's November 1, 2011 final decision on the issue of compensatory damages, concerning her equal employment opportunity (EEO) complaint alleging employment discrimination in violation of Title VII of the Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. § 2000e et seq. The Commission deems the appeal timely and accepts it pursuant to 29 C.F.R. § 1614.405(a). For the following reasons, the Commission AFFIRMS the Agency's final decision. ISSUE PRESENTED The issue presented is whether the Agency properly determined that Complainant was only entitled to $250.00 in compensatory damages. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Small Parcel Bundle Sorter at the Agency's Ben Hill, Georgia facility. The issue presented in the underlying complaint was whether Complainant was discriminated against on the basis of disability, sex, and retaliation when on February 18, 2006, she was returned to a work location which she considered hostile; between August 7 and September 1, 2006, she was not given typing assignments; on December 22, 2006, an acting supervisor stated at a meeting that she was a troublemaker and liked to file grievances and EEO complaints; and when between March 3 and May 20, 2007, she was denied official time to prepare and present her EEO complaint. On August 17, 2009, an EEOC Administrative Judge issued a decision finding that the Complainant was not discriminated against, and the Agency subsequently issued a final order adopting and implementing the decision. On appeal, the EEOC reversed the Agency's final order, in part, finding that Complainant was discriminated against based on reprisal when an acting supervisor openly discussed the fact that Complainant filed an EEO complaint with her co-workers. Complainant v. U.S. Postal Serv., EEOC Appeal No. 0120093802 (Aug. 12, 2011). In the August 12, 2011 decision, among other remedies, the EEOC directed the Agency to conduct a supplemental investigation to determine Complainant's entitlement to compensatory damages. Complainant asserted that she was entitled to compensatory damages in the amount of $291,991.50 due to the Agency's discriminatory conduct.1 In its decision, the Agency awarded Complainant a total of $250.00 in compensatory damages. The Agency declined to award Complainant any pecuniary damages. The Agency reasoned that: (1) the therapy sessions Complainant attended from April 4 through October 18, 2006, all occurred before the comments were made by the acting supervisor; (2) emergency room documentation submitted by Complainant bore no evidence that this visit was in any way related to the discriminatory act; and (3) Complainant was not eligible for reimbursement of services charged to her by a lay representative. Complainant was awarded $250.00 in non-pecuniary compensatory damages. The Agency found that Complainant raised matters in her affidavit that were not found to be discriminatory, or which "post-date" the December 22, 2006 comment made by her acting supervisor. There was never a finding made that Complainant had been subjected to a hostile work environment, nor had Complainant presented any documentary evidence from medical providers or others which corroborated her contention that she experienced any of the effects listed in her affidavit. The Agency stated that there is no evidence in the record concerning either short or long term medical problems caused by the single comment, and no evidence that the comment rendered her unable to work. The Agency concluded that our precedential cases indicate that a lower award was appropriate in this case. The over-riding consideration in this case was the very limited impact of the discriminatory comment, and that there is no evidence of an additional issue occurring thereafter. STANDARD OF REVIEW As this is an appeal from a decision issued without a hearing, pursuant to 29 C.F.R. § 1614.110(b), the Agency's decision is subject to de novo review by the Commission. 29 C.F.R. § 1614.405(a). See Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614, at Chapter 9, § VI.A. (November 9, 1999) (explaining that the de novo standard of review "requires that the Commission examine the record without regard to the factual and legal determinations of the previous decision maker," and that EEOC "review the documents, statements, and testimony of record, including any timely and relevant submissions of the parties, and . . . issue its decision based on the Commission's own assessment of the record and its interpretation of the law"). ANALYSIS AND FINDINGS Compensatory damages may be awarded for the past pecuniary losses, future pecuniary losses, and non-pecuniary losses which are directly or proximately caused by the agency's discriminatory conduct. Enforcement Guidance: Compensatory and Punitive Damages Available Under Section 102 of the Civil Rights Act of 1991 (Enforcement Guidance), EEOC Notice No. 915.002, at 8 (July 14, 1992). Objective evidence of compensatory damages can include statements from the complainant concerning his or her emotional pain or suffering, inconvenience, mental anguish, loss of enjoyment of life, injury to professional standing, injury to character or reputation, injury to credit standing, loss of health, and any other non-pecuniary losses that are incurred as a result of the discriminatory conduct. Statements from others, including family members, friends, health care providers, or other counselors (including clergy) could address the outward manifestations or physical consequences of emotional distress, including sleeplessness, anxiety, stress, depression, marital strain, humiliation, emotional distress, loss of self-esteem, excessive fatigue, or a nervous breakdown. Evidence from a health care provider or other expert is not a prerequisite for recovery of compensatory damages for emotional harm. Lawrence v. United States Postal Service, EEOC Appeal No. 01952288 (Apr. 18, 1996) (citing Carle v. Dep't of the Navy, EEOC Appeal No. 01922369 (Jan. 5, 1993)). Non-pecuniary Compensatory Damages An award of non-pecuniary compensatory damages should reflect the extent to which the agency's discriminatory action directly or proximately caused the harm as well as the extent to which other factors also caused the harm. Johnson v. Dep't of the Interior, EEOC Appeal No. 01961812 (June 18, 1998). It is the complainant's burden to provide objective evidence in support of the claim, and proof linking the damages to the alleged discrimination. Papas v. U.S. Postal Service, EEOC Appeal No. 01930547 (Mar. 17, 1994); Mims v. Dep't of the Navy, EEOC Appeal No. 01933956 (Nov. 24, 1993). The Commission recognizes that not all harms are amenable to a precise quantification; the burden of limiting the remedy, however, rests with the employer. Chow v. Dep't of the Army, EEOC Appeal No. 01981308 (Feb. 12, 2001). Moreover, the amount of an award should not be "monstrously excessive" standing alone, should not be the product of passion or prejudice, and should be consistent with the amount 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)). 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. Taking into account the limited amount of evidence of non-pecuniary damages submitted by Complainant to establish that she suffered any harm as a result of the comment made by the acting supervisor, we find the Agency's award of non-pecuniary, compensatory damages in the amount of $250.00 to be reasonable. The Commission has supported compensatory damages awards for similar amounts in cases where similar harm has occurred. See Carter v. Dep't of Veterans Affairs, EEOC Appeal No. 0120122266 (Oct. 18, 2012) (complainant awarded $500.00 when she suffered workplace paranoia, insomnia, and increased stress as a result of Agency's per se interference with EEO process); Zofia v. U.S. Postal Serv., EEOC Appeal No. 0120101454 (Dec. 16, 2010) (complainant awarded $500 who suffered reprisal when a supervisor referenced EEO activity by saying, "what goes around comes around."); Seda v. U.S. Postal Serv., EEOC Appeal No. 0720050090 (Mar. 20, 2007) (complainant was entitled to $1,500.00 in non-pecuniary compensatory damages for reprisal discrimination where complainant provided only limited and non-descriptive testimony concerning emotional pain). As noted above, non-pecuniary compensatory damages are designed to remedy the harm caused by the discriminatory event rather than punish the Agency for the discriminatory action. Because Complainant has not persuasively established that she suffered harm greater than what the Agency provided, we see no justification for increasing the amount of the award. Pecuniary Compensatory Damages Pecuniary losses include quantifiable out-of-pocket expenses that are incurred as a result of the discriminatory conduct. To recover damages, the complaining party must prove that the employer's discriminatory act or conduct was the cause of his loss. Enforcement Guidance: Compensatory and Punitive Damages Available Under Section 102 of the Civil Rights Act of 1991 (Enforcement Guidance), EEOC Notice No. 915.002, at 8 (July 14, 1992). With regard to Complainant's request for pecuniary damages for past therapy sessions, her emergency room visit, and representation by a lay person, we find that the Agency properly determined that she was not entitled to reimbursement for any of the listed items. The record reflects that the sessions took place before the discriminatory act, and that there was no evidence in the record that the emergency room visit was related to the discriminatory event. Based on a thorough review of the record, including those not specifically addressed herein, we AFFIRM the Agency's final decision regarding its compensatory damages award in this matter. ORDER Within 120 days of this decision becoming final, the Agency shall issue a check in the amount of $250.00 to Complainant. A copy of the check shall be sent to the Compliance officer listed below. IMPLEMENTATION OF THE COMMISSION'S DECISION (K0610) Compliance with the Commission's corrective action is mandatory. The Agency shall submit its compliance report within thirty (30) calendar days of the completion of all ordered corrective action. The report shall be submitted to the Compliance Officer, Office of Federal Operations, Equal Employment Opportunity Commission, P.O. Box 77960, Washington, DC 20013. The Agency's report must contain supporting documentation, and the Agency must send a copy of all submissions to the Complainant. If the Agency does not comply with the Commission's order, the Complainant may petition the Commission for enforcement of the order. 29 C.F.R. § 1614.503(a). The Complainant also has the right to file a civil action to enforce compliance with the Commission's order prior to or following an administrative petition for enforcement. See 29 C.F.R. §§ 1614.407, 1614.408, and 29 C.F.R. § 1614.503(g). Alternatively, the Complainant has the right to file a civil action on the underlying complaint in accordance with the paragraph below entitled "Right to File a Civil Action." 29 C.F.R. §§ 1614.407 and 1614.408. A civil action for enforcement or a civil action on the underlying complaint is subject to the deadline stated in 42 U.S.C. 2000e-16(c) (1994 & Supp. IV 1999). If the Complainant files a civil action, the administrative processing of the complaint, including any petition for enforcement, will be terminated. See 29 C.F.R. § 1614.409. STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0610) The Commission may, in its discretion, reconsider the decision in this case if the Complainant or the Agency submits a written request containing arguments or evidence which tend to establish that: 1. The appellate decision involved a clearly erroneous interpretation of material fact or law; or 2. The appellate decision will have a substantial impact on the policies, practices, or operations of the Agency. Requests to reconsider, with supporting statement or brief, must be filed with the Office of Federal Operations (OFO) within thirty (30) calendar days of receipt of this decision or within twenty (20) calendar days of receipt of another party's timely request for reconsideration. See 29 C.F.R. § 1614.405; Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at 9-18 (November 9, 1999). All requests and arguments must be submitted to the Director, Office of Federal Operations, Equal Employment Opportunity Commission, P.O. Box 77960, Washington, DC 20013. In the absence of a legible postmark, the request to reconsider shall be deemed timely filed if it is received by mail within five days of the expiration of the applicable filing period. See 29 C.F.R. § 1614.604. The request or opposition must also include proof of service on the other party. Failure to file within the time period will result in dismissal of your request for reconsideration as untimely, unless extenuating circumstances prevented the timely filing of the request. Any supporting documentation must be submitted with your request for reconsideration. The Commission will consider requests for reconsideration filed after the deadline only in very limited circumstances. See 29 C.F.R. § 1614.604(c). COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (S0610) You have the right to file a civil action in an appropriate United States District Court within ninety (90) calendar days from the date that you receive this decision. If you file a civil action, you must name as the defendant in the complaint the person who is the official Agency head or department head, identifying that person by his or her full name and official title. Failure to do so may result in the dismissal of your case in court. "Agency" or "department" means the national organization, and not the local office, facility or department in which you work. If you file a request to reconsider and also file a civil action, filing a civil action will terminate the administrative processing of your complaint. RIGHT TO REQUEST COUNSEL (Z0610) If you decide to file a civil action, and if you do not have or cannot afford the services of an attorney, you may request from the Court that the Court appoint an attorney to represent you and that the Court also permit you to file the action without payment of fees, costs, or other security. See Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq.; the Rehabilitation Act of 1973, as amended, 29 U.S.C. §§ 791, 794(c). The grant or denial of the request is within the sole discretion of the Court. Filing a request for an attorney with the Court does not extend your time in which to file a civil action. Both the request and the civil action must be filed within the time limits as stated in the paragraph above ("Right to File a Civil Action"). FOR THE COMMISSION: ______________________________ Carlton M. Hadden, Director Office of Federal Operations ____9/4/14______________ Date 1 Complainant claimed $289,000.00 for non-pecuniary losses, and $2991.50 for past pecuniary losses. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ 2 0120133316 U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 2 0120133316