U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Ashlea P.,1 Complainant, v. Megan J. Brennan, Postmaster General, United States Postal Service (Capital Metro Area), Agency. Appeal No. 0120141369 Agency No. 1K-271-0005-10 DECISION On February 10, 2014, Complainant filed an appeal from an Agency's final decision, dated January 30, 2014, concerning the EEOC's order in Willis v. United States Postal Service, EEOC Appeal No. 0120120039 (August 20, 2013), which directed the Agency to conduct a supplemental investigation and issue a new decision regarding her entitlement to compensatory damages for a 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). BACKGROUND During the relevant time, Complainant worked as a limited duty employee at the Agency's Processing and Distribution Center (P&DC) facility in Greensboro, North Carolina. Believing that she was subjected to sexual harassment, on March 11, 2010, Complainant filed an EEO complaint based on race, sex, color, disability, age, and reprisal. The matter was investigated and thereafter, Complainant requested a hearing before an EEOC Administrative Judge (AJ). Following a two-day hearing, the AJ issued a decision finding no discrimination. Complainant filed an appeal with the Commission. In our prior decision, the Commission found that Complainant, and two female co-workers2, were subjected to sexual harassment. Willis v. United States Postal Service, EEOC Appeal No. 0120120039 (August 20, 2013). For approximately six months, Complainant was subjected to viewing an automation clerk (Clerk G) who wore his shorts "in a manner that significantly outlined and occasionally exposed his penis", often without underwear, and at times with an erection. Further, we found that the Agency failed to adequately respond to Complainant's complaints. The Agency waited over six months to begin an investigation and failed to separate Clerk G from Complainant during the investigation. It was only when Complainant's assignment was changed, and she was moved to another area, that the harassment ceased. The Agency was ordered to conduct a supplemental investigation to determine Complainant's entitlement to compensatory damages under Title VII.3 In compliance with our order, the Agency issued a decision on January 30, 2014. The Agency awarded Complainant $6,000 in non-pecuniary damages and $252.02 in pecuniary damages. Complainant filed the instant appeal. ANALYSIS AND FINDINGS Request for Sanctions As an initial matter, we note Complainant's contention on appeal that the Agency's final decision was untimely issued. In our prior decision, the Agency was ordered to issue a final decision within sixty calendar days of Complainant's submission of evidence regarding damages. According to Complainant, she submitted her affidavit on October 3, 2013, but the Agency's decision was not issued until January 30, 2014. Complainant argues that, as a result, she should be granted all damages and costs requested. We find, however, that such a sanction is not appropriate here. See generally, Ferebee v. Department of Homeland Security (U.S. Coast Guard), EEOC Appeal No. 0720100039 (April 24, 2012). In this case, the Agency has substantially complied with our order in Appeal No. 0120120339. Compensatory Damages When discrimination is found, the agency must provide the 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 Transp. Co., 424 U.S. 747, 764 (1976); Albemarle 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 either Title VII of the Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. § 2000e et seq. or Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq. 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 To receive an award of compensatory damages, a complainant must demonstrate that he or 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. Dep't of the Navy, EEOC Appeal No. 01934157 (July 22, 1994), req. for reconsideration denied, EEOC Request No. 05940927 (Dec. 11, 1995); Compensatory and Punitive Damages Available Under Section 102 of the Civil Rights Act of 1991, EEOC Notice No. 915.002 (July 14, 1992), at 11-12, 14. 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. EEOC Notice No. 915.002 at 8. Non-pecuniary Damages 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 Notice No. 915.002 at 10 (July 14, 1992). In our previous decision, Complainant was found to have been subjected to sexual harassment for a period of five or six months.4 The Agency, in its decision, attempts to minimize the length of time Complainant was harassed, noting that Complainant only specified five particular days in October 2009 and January 2010. On remand, the Agency was required to conduct a supplemental investigation regarding the harm suffered by Complainant as a result of the sexual harassment determination made by the Commission. The Agency was not tasked with assessing the time period of harassment. Therefore, we decline to reduce our award of damages to harm resulting from five particular days alone. At the same time, Complainant attempts to recover damages for pain and suffering unrelated to the finding of sexual harassment. For example, Complainant faults the finding of discrimination for: her "slow recovery" from carpal tunnel surgery in August 2010; her shoulder girdle and displaced disk injury in April 2011; gastroentenology treatment in April 2012; and her "forced" retirement due to the Agency's failure to accommodate an injury, and the resulting financial hardship. We decline to award damages for alleged harm lacking any nexus to the finding of discrimination, often occurring months and years after the sexual harassment ceased. Complainant attested that she developed anxiety in November 2009 and gastrointestinal difficulties (nausea, diarrhea, and vomiting) on her way to work in early 2010. The record also contains a letter from Complainant's daughter, stating that Complainant was "reluctant to go to work", "spent increased time in bed", "sullen and despondent", and "never seemed to want to spent time with me or family members, or go out at all." Similarly, Complainant's Aunt stated that Complainant exhibited "some nervousness, a fear of being home alone . . . fear of going out walking, shopping. . . ." A May 2010 letter from Complainant's physician noted that Complainant's diabetes was "poorly controlled" and that the "recent stress at work" was a contributing factor. Complainant's therapist began treating Complainant in May 2010, when she was referred by her primary care physician due to "significant stress and anxiety related to her job." She was diagnosed with Adjustment Disorder with Mixed Anxiety and Depressed Mood. According to Complainant's therapist, she suffered from depressed mood, irritability, anxiety, sleep difficult, loss of interest and excessive worrying. Even at that time, November 2010, Complainant "remains in treatment one time every 1 to 3 weeks." Complainant was prescribed Xanax and Zoloft. In addition to Clerk G's conduct, we also consider the Agency's failure to address the situation. On appeal, Complainant describes the intense emotional pain resulting from management's mishandling of her complaint, a loss of self-esteem when the Agency took no steps to separate them or ensure her confidentiality. She did not feel that her concerns were taken seriously when, for example, management suggested that she simply look away or turn her station around. We find that Agency's award of $6,000.00 in non-pecuniary damages was inappropriate in light of the amounts awarded in similar cases, the severity of harm, and duration of harm. Considering the evidence of non-pecuniary damages submitted by Complainant, the Commission finds that complainant is entitled to non-pecuniary damages in the amount of $20,000.00. This amount takes into account the severity and duration of the harm suffered, and is consistent with prior Commission precedent. See Colwell v. United States Postal Service, EEOC Appeal No. 01985789 (June 13, 2001)(Commission awarded $20,000.00 in non-pecuniary damages for complainant's depression and emotional distress, which manifested themselves in crying spells, insomnia, headaches, anxiety attacks, constant mood swings, and low self-esteem, and for which complainant received psychological treatment; loss of credit standing and loss of professional standing); Bever v. Department of Agriculture, EEOC Appeal No. 01953949 (October 31, 1996) (Commission awarded $15,000.00 in non-pecuniary damages where the complainant's situational anxiety was directly linked to a hostile work environment, such that complainant was required to take medication as a result, and symptoms suffered included uncontrolled crying, weight loss, and depression). Pecuniary Damages Pecuniary damages are quantifiable out-of-pocket expenses incurred as a result of the Agency's discriminatory actions. Damages for pas pecuniary damages will not normally be sought without documentation such as receipts, records, bills, cancelled checks, or confirmation by other individuals of actual loss and expenses. Compensatory and Punitive Damages available Under Section 102 of the Civil Rights Act of 1991 (July 14, 1992) (available at www.eeoc.gov.) In her request for past pecuniary damages, Complainant provides a list comprised of two columns: "Damages Present in Case" and "Amount Spent or Estimated". The list includes expenses such as doctor bills, psychologist bills, medicines, medical supplies, travel/gas, future medical expenses, and office supplies/postage. The supporting documentation, however, does not include sufficient detail to establish a nexus with the sexual harassment Complainant was found to have suffered. In most instances, the purpose for the visit is not identified or the dates of services are well beyond when the sexual harassment ceased. For example, Complainant presents a Kmart Pharmacy statement that lists various prescriptions filled between January 2010 and September 2013, totaling over $3,000.00. The record also contains a Cone Health hospital bill for $112.15, for services performed on July 8, 2011 and a bill for $326.50, for physical therapy performed in April 2011. Therefore we find the Agency's denial of these claims was proper. The record does contain a November 16, 2010 letter from Complainant's therapist, stating that she began treating complainant in May 2010. Specifically, she noted that she began providing psycho-therapy to Complainant after her primary care physician referred her due to stress and anxiety resulting from the incidents with Clerk G. Even at the time of her writing, in November 2010, the therapist explained that Complainant continued to receive treatment once every one to three weeks. Consequently, we shall award Complainant the $313.00 expended on psychologist bills. Complainant requested $35,853.63 in future medical expenses. We deny this expense, as Complainant has failed to identify future medical expense she may incur which were cause by the sexual harassment. In its decision, the Agency awarded Complainant $252.02 for the cost of gasoline for attending the hearing ($97.10), mailings ($90.33), printer cartridges ($48.00), and office supplies ($16.59). We find the Agency's award is proper. CONCLUSION Accordingly, the Agency's decision is MODIFIED. The matter is REMANDED to the Agency for further processing in accordance with the Order below. The Agency is ordered to take the following remedial actions: To the extent it has not already done so, the Agency shall pay Complainant $20,000 in non-pecuniary damages and $565.02 in pecuniary damages (a total of $20,565.02). The Agency shall make this payment to Complainant within 60 calendar days after this decision becomes final. The Agency is further directed to submit a report of compliance, as provided in the statement entitled "Implementation of the Commission's Decision." The report shall include supporting documentation verifying that the corrective action has been implemented. 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 (M0815) 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 Chap. 9 § VII.B (Aug. 5, 2015). 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 (Z0815) If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may request permission from the court to proceed with the civil action without paying these fees or costs. Similarly, if you cannot afford an attorney to represent you in the civil action, you may request the court to appoint an attorney for you. You must submit the requests for waiver of court costs or appointment of an attorney directly to the court, not the Commission. The court has the sole discretion to grant or deny these types of requests. Such requests do not alter the time limits for filing a civil action (please read the paragraph titled Complainant's Right to File a Civil Action for the specific time limits). FOR THE COMMISSION: ______________________________ Carlton M. Hadden's signature Carlton M. Hadden, Director Office of Federal Operations April 19, 2016 __________________ Date 1 This case has been randomly assigned a pseudonym which will replace Complainant's name when the decision is published to non-parties and the Commission's website. 2 Our prior decision was issued concurrently with EEOC Appeal Nos. 0120120427 and 0120120510 regarding the co-workers. 3 In our prior decision, we did not consider Complainant's other alleged bases since, under the circumstances, it would not entitle her to greater relief. 4 Our prior decision also noted specifically that "[a]t some point in the Spring of 2009" Complainant began to observe Clerk G's inappropriate attire. The hostile work environment did not end until April 2010, when Complainant's assignment and work location was changed. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ 2 0120141369 2 0120141369