U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Sherman K.,1 Complainant, v. Megan J. Brennan, Postmaster General, United States Postal Service (Southern Area), Agency. Appeal No. 0120142089 Agency No. 4G-350-0024-11 DECISION On April 8, 2014, Complainant filed an appeal from the Agency's March 19, 2014, final decision concerning compensatory damages regarding his 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). BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a full-time Mail Processing Clerk at the Agency's Post Office facility in Dothan, Alabama. On July 21, 2011, Complainant filed an EEO complaint alleging that the Agency discriminated against him on the bases of race (African-American) and reprisal for prior protected EEO activity under Title VII of the Civil Rights Act of 1964 when, from August 2010 to May 2011, Complainant was subjected to a hostile work environment when Caucasian employees in his work area wore t-shirts featuring the Confederate flag several times a month, and management took no action despite receiving complaints about it. Complainant also alleged that management ignored the issue in retaliation for his prior EEO activity. The Agency initially dismissed the matter. However, the Commission, in EEOC Appeal No. 0120114186 (Feb. 8, 2012), reversed the Agency's decision to dismiss the complaint for failure to state a claim. However, Complainant explained that the display of the Confederate flag is a "highly controversial and emotional topic." He noted that he was "keenly aware that the Confederate Battle Flag has been appropriated by the Ku Klux Klan and other racist hate groups." Agreeing with Complainant that there is support for his assertion that Confederate flag has been widely used as a symbol of racism against African Americans, we reversed the Agency's dismissal and remanded the matter for an investigation. At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation and notice of his right to request a hearing before an EEOC Administrative Judge (AJ). Complainant timely requested a hearing. When the Complainant did not object, the AJ assigned to the case granted the Agency's September 12, 2012 motion for a decision without a hearing, and issued a decision by summary judgment in favor of the Agency on March 21, 2013. The AJ determined that Complainant established that he was subjected to discriminatory harassment because of his race, but not based on his prior EEO activity. However, the AJ concluded that the Agency should not be held liable for the harassment because management took prompt and effective action to end the harassment once informed of the issue. The Agency subsequently issued a final order adopting the AJ's finding that Complainant failed to prove that the Agency subjected him to discrimination as alleged. Complainant appealed the Agency's final order which was the subject of EEOC Appeal No. 0120132144 (Nov. 1, 2013). In our previous decision, we noted that the AJ found that Complainant established elements (1) - (4) of his case of harassment based on race. The Agency adopted the AJ's findings. As such, the only issue before the Commission in Appeal No. 0120132144 was whether Complainant established the 5th element of his case of harassment based on his race - whether there is basis for imputing liability to the Agency. The decision noted that the AJ determined, and the undisputed evidence of record supports, that two clerks working in Complainant's workplace ("Clerk 1 and 2"; both Caucasian) wore t-shirts to work featuring the confederate flag on August 29, 2010; November 15, 2010; January 24, 2011; January 31, 2011; February 14, 2011; February 28, 2011; March 12, 2011; March 25, 2011; March 26, 2011; March 29, 2011; April 7, 2011; April 20, 2011; April 25, 2011; and May 3, 2011. We determined in our previous decision that the AJ erred as a matter of law in determining that despite finding Complainant was subjected to racial harassment, the Agency was not liable because management took immediate and appropriate corrective action. Instead, the Commission found that the Postmaster took no action to address the issue for nearly two months, until prompted by Complainant filing a union grievance over the matter in May 2011. It was only at this point that the Postmaster sent Clerk 1 home to change. Based on this evidence, we concluded in EEOC Appeal No. 0120132144 that the Agency failed to meet its burden of establishing its affirmative defense against liability in this matter. Accordingly, we reversed the AJ's conclusion to the contrary. As such, we concluded that Complainant established that he was subjected to unlawful harassment based on race and the Agency is liable for the harassment. As remedy, among other orders, the Commission remanded the matter for the Agency to conduct an investigation as to Complainant's claim for compensatory damages. The Agency conducted a supplemental investigation which was completed on January 15, 2014. The Agency issued its final decision on March 19, 2014. The Agency determined that Complainant was entitled to $100.00 for co-payments for four sessions with his Licensed Professional Counselor (Counselor) from August 30, 2010, April 8, 2011, April; 21, 2011, and May 5, 2011. In addition, the Agency noted that Complainant drove 44.12 miles per trip to the Counselor. The Agency provided Complainant with the rate of $ 0.55 per mile as he requested for a total reimbursement in the amount of $ 97.06. Therefore, the Agency awarded him a total of $ 197.06 in pecuniary damages. As for Complainant's claim for non-pecuniary damages, Complainant provided an affidavit in support of his claim. He asserted that he has experienced stress and that he has increased his medicines due to the severity of emotional stress the case has caused him. He also noted that he has experienced other personal issues in the "last year" in his affidavit signed on January 6, 2014. The Agency found that Complainant failed to connect his "personal issues" to the harassment that occurred in August 2010 to May 2011. Complainant's Counselor also provided a statement which indicated that Complainant informed her of the t-shirt events. However, the Counselor did not expressly indicate that Complainant experienced adverse psychological effects due to the shirts. The Counselor did note a series of events, both personal and professional, that had an effect on Complainant. These events included the Confederate flag shirts, but also several other events from March 2008, well before the confederate flag events occurred in August 2010. The Agency noted that Complainant failed to connect his mental health symptoms to the harassment created by the confederate flag shirts. Complainant's wife also provided a statement indicating that Complainant experienced anxiety and panic disorders due to issues at work. She provided information regarding his dissatisfaction with the workplace and not specially related to the finding of harassment. As such, the Agency found Complainant's request for $ 300,000.00 was excessive. Instead, the Agency found $ 1,000.00 was more in line with the harm suffered and the Commission's previous decisions regarding similar findings of discrimination and non-pecuniary damages. Complainant filed the instant appeal asserting that the Agency's decision did not adequately compensate him for the harassment he suffered. Complainant argued that the Agency caused irreparable damage to him as a result of the harassment he experienced. ANALYSIS AND FINDINGS 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. (Aug. 5, 2015) (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"). Compensatory damages may be awarded for past pecuniary losses (out-of-pocket loss), future pecuniary losses (out-of-pocket loss likely to occur after the conclusion of the litigation), and non-pecuniary losses that are directly or proximately caused by the agency's discriminatory conduct. Compensatory and Punitive Damages Available Under Section 102 of the Civil Rights Act of 1991 (July 14, 1992) (available at www.eeoc.gov.) Non-pecuniary losses are losses that are not subject to precise quantification including emotional pain and suffering and loss of enjoyment of life. Damages for past pecuniary damages will not normally be sought without documentation such as receipts, records, bills, cancelled checks, or confirmation by other individuals, or other proof of actual losses or expenses. Id. Compensatory damages are awarded to compensate for losses or suffering inflicted due to discrimination. Pecuniary Damages Complainant sought pecuniary damages for his appointments with the Counselor in the amount of $ 1,250.00. We note that the evidence shows that Complainant started seeing the Counselor in March 2008, well before the harassing events occurred. We find that Complainant has not shown that all of his visits to the Counselor from March 2008 to May 18, 2011, were related to the harassment he faced from August 2010 to May 3, 2011. As such, we find that Complainant has not shown that all of his appointments constituted a loss directly related to the finding of harassment. We shall limit Complainant to the appointments that occurred close in time to the dates when coworkers wore the offensive t-shirts. As such, we find that the appointments on August 29, 2010; November 23, 2010; February 18, 2011; March 10, 2011; March 24, 2011; April 21, 2011; April 24, 2011; and May 5, 2011, were sufficiently connected to the finding of harassment. Complainant has shown that he paid $ 25.00 for these eight appointments with the Counselor for a total of $ 200.00. The Agency provided mileage to Complainant at a rate of $ 0.55 for 44.12 miles for a total of $ 97.06. Complainant did not challenge the Agency's finding regarding the travel distance to the Counselor. The Commission notes that the Agency only provided Complainant with travel for four visits with the Counselor. However, we have already determined that Complainant should be compensated for eight visits. Therefore, we modify the Agency's calculation and determine that Complainant has established that he incurred $ 194.12 in travel expenses for the eight visits. Complainant also requested payment for his health insurance premiums. Upon review, as noted above, the Counselor indicated that Complainant had been seeing her since March 2008, well before the harassment. As such, he has not shown that he incurred medical expenses in the form of health care insurance premiums due to the harassment. Accordingly, upon review, we find that the Agency owes Complainant $ 394.12 in pecuniary damages. Non-Pecuniary Damages In Carle v. Dep't of the Navy, the Commission explained that "objective evidence" of non-pecuniary damages can include a statement by a complainant explaining how he or she was affected by the discrimination. EEOC Appeal No. 01922369 (Jan. 5, 1993). Statements from others, including family members, friends, and health care providers can address the outward manifestations of the impact of the discrimination on Complainant. Id. Complainant can also submit documentation of medical or psychiatric treatment related to the effects of the discrimination. Id. Non-pecuniary damages must be limited to the sums necessary to compensate the injured party for the actual harm and should take into account the severity of the harm and the length of the time the injured party has suffered from the harm. Carpenter v. Dep't of Agric., EEOC Appeal No. 01945652 (Jul. 17, 1995). We note that Complainant did assert that he experienced problems at work and at home due to the racial harassment. He provided statements from the Counselor and his wife to support his claim. However, the evidence he provided indicated that workplace stress for events outside the finding of harassment caused a great deal of stress on him and his life. We must consider Complainant's pre-existing condition, as well as other causes of his mental health problems in determining his entitlement to non-pecuniary damages. Upon review, we find that an award of $5,000 in non-pecuniary compensatory damages is appropriate in this case to compensate Complainant for pain and suffering. This award is supported by substantial evidence and is consistent with the Commission's awards in similar cases. See e.g., Reddish v. U.S. Postal Serv., EEOC Appeal No. 0720070068 (Apr. 28, 2009) ($4,000 awarded for finding of reprisal resulting in embarrassment, humiliation, distress, headaches and elevated blood pressure); Spencer v. Dep't of the Treas., EEOC Appeal No. 07A10035 (May 6, 2003) ($5,000 awarded for complainant's complaints of dejection, stress, and emotional pain); Brooks v. U.S. Postal Serv., EEOC Appeal No. 01996915 (Oct. 12, 2001) ($6,000 in non-pecuniary damages awarded for depression, anger, aggravation of high blood pressure, and adverse effects on family life). 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 decision regarding its calculation of compensatory damages and REMAND the matter for further processing in accordance with the ORDER below. ORDER (C0610) The Agency is ordered, within sixty (60) days of the date this decision becomes final, to pay Complainant $ 5,000 in non-pecuniary damages and $ 394.12 in pecuniary damages, for a total of $ 5,394.12. 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. ATTORNEY'S FEES (H0610) If Complainant has been represented by an attorney (as defined by 29 C.F.R. § 1614.501(e)(1)(iii)), he 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 (M0416) 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. The requests may be submitted via regular mail to P.O. Box 77960, Washington, DC 20013, or by certified mail to 131 M Street, NE, Washington, DC 20507. 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 June 28, 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 0120142089 2 0120142089