U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Elvera S.,1 Complainant, v. Megan J. Brennan, Postmaster General, United States Postal Service (Capital Metro Area), Agency. Appeal No. 0120141452 Hearing No. 430-2012-00319X Agency No. 1K-271-0007-12 DECISION Complainant filed an appeal from the Agency's January 10, 2014 final order concerning an equal employment opportunity (EEO) complaint claiming 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. and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq. BACKGROUND During the period at issue, Complainant worked as a Mail Processing Clerk at the Agency's Processing and Distribution Center in Greensboro, North Carolina. Complainant filed an EEO complaint alleging that the Agency discriminated against her on the bases of race (African-American), sex (female), color (black), and age (49). The Agency accepted the formal complaint for investigation. After 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 Equal Employment Opportunity Commission Administrative Judge (AJ). Complainant timely requested a hearing and the AJ held a hearing on July 15-16, 2013, and issued a decision on December 4, 2013. The AJ, in her decision, framed Complainant's claims in the following fashion: Did the Agency subject Complainant to sexual harassment and a hostile work environment based on race, color, sex, and age, when: 1) On September 26, 2011 and October 6, 2011, she was sexually assaulted by a co-worker when he touched her rear end; 2) After she reported the assault on October 6, 2011, she was informed that an investigation would be conducted by the District Office, but a thorough investigation has not been completed, and [C1] has been allowed to continue to work in her area, and 3) On January 10, 2012, [Complainant] overheard a supervisor discussing her confidential information related to the sexual assault with a co-worker, who then discussed it with other co-workers. The AJ found that Complainant was subjected to sexual harassment. Specifically, the AJ stated "Complainant credibly testified that [her named male co-worker, C1] brushed against her body on two occasions. Complainant further testified that the second time, she felt [C1's] penis press against her." AJ Decision at 6. The AJ further found that the Agency failed to promptly investigate the formal complaint. Specifically, the AJ stated "[t]he Agency's delay in investigating Complainant's complaint was particularly problematic because the Agency failed to take effective action to end the harassment during the time between the complaint and the investigation. The evidence showed that there was no clear effort by management to separate Complainant and [C1]...[C1] still continued to work in Complainant's work area three or four time a week." AJ Decision at 10 Regarding claims (1) and (2), the AJ found that there is no evidence supporting Complainant's allegations that she was subjected to discrimination based on race, color, and age. Regarding claim (3), the AJ found that Complainant failed to establish that a named supervisor discussed Complainant's complaint with her co-workers. The AJ ordered the Agency to take the following actions: pay $12,000.00 in non-pecuniary compensatory damages, pay Complaint $4.01 in pecuniary damages, provide 8 hours of training to named responsible management officials, consider disciplining C1, and post a notice at the facility regarding this finding. The Agency implemented the AJ's decision in its final order dated January 10, 2014. The instant appeal followed. On appeal, Complainant raises various issues. Complainant alleges various concerns with the AJ and the conduct of the hearing, including that the AJ had been unethical and very harsh towards Complainant. Complainant also requests that we increase the AJ's non-pecuniary compensatory damages award to $300,000. 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. Regarding Complainant's contentions on appeal regarding the AJ's handling of this matter, the Commission notes that EEOC regulations and Commission precedent provide AJ's with broad discretion in the conduct of hearing and related proceedings. See 29 C.F.R. § 1614.109; see also EEO MD-110, at Ch. 7. We have reviewed the record and find no abuse of discretion by the AJ. We are unable to find any evidence of bias, or other reversible error, resulting from the manner in which the AJ managed and adjudicated this case. We find that there is substantial evidence in the record to support the AJ's finding of no discrimination regarding claims (1) and (2) on the bases of race, color, and age. In addition, we find that since the AJ found sex discrimination with respect to these claims, no further relief would be available to Complainant even if she were to prevail on these other bases. See Brooks v. Dep't of Agriculture, EEOC Appeal No. 0120093647 (Aug. 12, 2011). Regarding claim (3), we find that there is substantial evidence in the record to support the AJ's finding of no discrimination. The AJ found that the supervisor "credibly testified that he did not discuss Complainant's complaints with her co-workers." AJ Decision at 11. 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. (Aug. 5, 2015). We find no reason to disturb the AJ's credibility determination. 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. Department of the Navy, EEOC Appeal No. 01934157 (July 22, 1994), request for reconsideration denied, EEOC Request No. 05940927 (December 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. 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 nonpecuniary losses that are incurred as a result of the discriminatory conduct. 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. See Lawrence v. United States Postal Service, EEOC Appeal No. 01952288 (April 18, 1996), citing Carle v. Department of the Navy, EEOC Appeal No. 01922369 (Jan. 5, 1993). We find that there is substantial evidence the record to support the AJ's award of $12,000.00 in non-pecuniary compensatory damages. The AJ provided detailed support for her decision. Specifically, the AJ stated: Complainant testified that she was emotional, depressed, [had] a lack of interest in things she used to enjoy with [her] family, going out to the movies, restaurants, sporting events, just to name a few. [She was] unable to sleep, anxiety, emotional distress and [had] panic attacks. AJ Decision at 13. The AJ further noted that "Complainant testified that she had chest pains and her physician performed an EKG. Complainant testified that she was taking prescribed medication for depression, anxiety/panic attacks, and inability to sleep. Complainant also testified that she was under the care of a therapist and attended a support group to help with the depression and anxiety...Complainant provided a statement from her son in support of her allegations. Her son's statement reiterated the harm identified by Complainant." AJ Decision at 13. We find that the AJ's award of $12,000 in non-pecuniary damages is consistent with our decisions in similar cases. See Van Wolken v. Dep't of Homeland Security, EEOC Appeal No. 07A30134 (May 11, 2004) (awarding $12,000 in non-pecuniary damages to Complainant who was subjected to sexual harassment and experienced stress, insomnia, headaches, panic attacks, and began seeing a therapist and taking medication). We AFFIRM the Agency's final order implementing the AJ's decision and we REMAND this matter to the Agency for further processing in accordance with the ORDER below. ORDER To the extent it has not already done so, the Agency is ORDERED to take the following actions within (60) days from the date this decision becomes final. 1. The Agency shall pay Complainant $12,000.00 in non-pecuniary compensatory damages. 2. The Agency shall pay Complainant $4.01 in pecuniary damages. 3. The Agency shall provide 8 hours of training to the management officials named in the AJ's decision with a focus on preventing sexual harassment in the workplace and management's obligation after receiving a complaint of sexual harassment. 4. The agency will consider taking disciplinary action against the employee identified as being responsible for the harassment. The agency shall report its decision in it compliance report. 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 disciplinary action. 5. The Agency shall post a notice in accordance with the Order below. 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. POSTING ORDER (G0914) The Agency is ordered to post at its Processing and Distribution Center in Greensboro, North Carolina 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. 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 (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 (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 February 23, 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 0120141452 2 0120141452