U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Don S.,1 Complainant, v. Megan J. Brennan, Postmaster General, United States Postal Service (Great Lakes Area), Agency. Appeal No. 0120142824 Agency No. 1J-491-0007-11 DECISION Complainant filed an appeal, pursuant to 29 C.F.R. § 1614.403(a), from the Agency's July 24, 2014, final decision finding that Complainant was entitled to $8,500.00 in non-pecuniary compensatory damages. BACKGROUND The record reflects that following chronology of events. During the period at issue, Complainant worked as a Part Time Flexible (PTF) Mail Handler at the Agency's Processing and Distribution Center in Lansing, Michigan. Complainant filed an EEO complaint dated March 8, 2011, alleging that the Agency discriminated against him and subjected him to harassment on the bases of race (Caucasian), color (white), and disability (deaf). The Agency defined Complainant's complaint as alleging that Complainant was subjected to harassment when: 1. Since October 2009, Complainant was harassed by management with verbal and mental abuse when he was yelled at, followed to the bathroom and picked on for using a pager; 2. Complainant was denied mule and forklift training; 3. Complainant was denied attendance at Mail Handlers' meetings, safety talks, and trainings due to no interpreter being provided; 4. On August 6, 2010, during training to be a Carrier, Complainant was not allowed an interpreter and received no handbooks or handouts to help prepare for the test; 5. On August 18, 2010, during training for Biohazard Detected System, Complainant was not provided an interpreter; 6. On three unspecified dates, Complainant was charged AWOL; 7. On November 18, 2010, Complainant's request for one week annual leave was disapproved; and 8. Complainant's union representative had not spoken up that an interpreter needs to be present at the meetings and has not helped with any settlement.2 The Agency issued a final decision finding that Complainant failed to prove that the Agency subjected him to discrimination. In EEOC Appeal No. 0120121221 (May 14, 2014), we found that the Agency discriminated against Complainant on the basis of disability with respect to claims: (1), (2), (3), (5), and (8).3 We ordered the Agency to take various actions including conducting an investigation with respect to Complainant's entitlement to compensatory damages. Id. On July 24, 2014, the Agency issued a final decision finding that Complainant was entitled to an award of $8,500.00 in non-pecuniary compensatory damages. The Agency noted that Complainant had not presented any medical evidence. The Agency further noted that its award of $8,500 is due to "the lack of evidence from a counselor or psychiatrist concerning alleged emotional harm, the lack of corroborating statements from co-workers or family members, and the general nature of [Complainant's] affidavit testimony." In addition, the Agency, in its final decision, stated: [Complainant is] a class member in a nationwide class action Bruce C. Hubbard et al. v. Donahoe, Civil Action No. 03-1062, District of the District of Columbia. In the Fall of 2013, the parties reached a global settlement of the issues involved in this class action, which included that class members had been 'denied communication accommodations, which included interpreters, for critical workplace meetings and events..' and 'subjected to a hostile work environment and/or harassment due to their deafness or hearing impairment...In addition, the parties established a claim fund and a specific claims procedure through which class members would submit claims for their presumptive settlement share of the class fund....The settlement was deemed fair and reasonable...The Class Administrator indicates that [Complainant has] filed a claim in connection with this class action. Consequently, that [Complainant has] filed a claim will be taken into account in determining the award of compensatory damages appropriate in this complaint inasmuch as the issues raised in this complaint clearly fall within the scope of the Hubbard settlement and the time frame covered by that class action. Final Agency Decision at 3. Complainant, though his attorney, filed the instant appeal. Complainant asserts that $100,000 is a more appropriate award of compensatory damages with respect to the nature and the severity of the harm he experienced. Regarding the Hubbard et al. class action, Complainant's attorney asserts that "the Agency has not proved that [Complainant] received one penny from the settlement." Complainant's Brief (Aug. 19, 2014) at 31. 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"). 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. 915.302 at 10 (May 14, 1992). There is no precise formula for determining the amount of damages for non-pecuniary losses except that the award should reflect the nature and severity of the harm and the duration or expected duration of the harm. See Loving v. Dep't of the Treasury, EEOC Appeal No. 01955789 (Aug. 29, 1997). 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. Furthermore, compensatory damages should not be motivated by passion or prejudice or "monstrously excessive" standing alone but should be consistent with the amounts awarded in similar cases. See Ward-Jenkins v. Dep't of the Interior, EEOC Appeal No. 01961483 (Mar. 4, 1999). Evidence from a health care provider or other expert is not a mandatory prerequisite for recovery of compensatory damages for emotional harm. See Lawrence v. U.S. Postal Serv., EEOC Appeal No. 01952288 (Apr 18, 1996) (citing Carle v. Dep't of the Navy, EEOC, Appeal No. 01922369 (Jan. 5, 1993)). Objective evidence of compensatory damages can include statements from Complainant concerning his 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. Id. 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. Id. Complainant's own testimony, along with the circumstances of a particular case, can suffice to sustain his burden in this regard. Id. The more inherently degrading or humiliating the defendant's action is, the more reasonable it is to infer that a person would suffer humiliation or distress from that action. Id. The absence of supporting evidence, however, may affect the amount of damages appropriate in specific cases. Id. Upon review of the record, we find the Agency's award of $8,500 in non-pecuniary damages to be inadequate. We note that damage awards for emotional harm are difficult to determine, and there are no definitive rules governing the amount to be awarded in given cases. As noted above, a non-pecuniary damage award must be consistent with awards made in similar cases. Complainant, in his affidavits, stated that he has had a loss of self-esteem, felt intimidated, sad, and depressed. Complainant also stated that he did not feeling safe using the restroom at work and that the discrimination negatively impacted his relationship with his girlfriend and his daughter. We find that an award of $12,000.00 in non-pecuniary compensatory damages is supported by the record. This award is more in line with the amount awarded in similar cases. See Elvira S. v. U.S. Postal Serv., EEOC Appeal No. 0120141452 (Feb. 23, 2016) (award of $12,000.00 in which Complainant was subjected to harassment and complainant testified that she was depressed, unable to sleep, had panic attacks, and was unable to enjoy activities with her family); Marker v. U.S. Postal Serv., EEOC Appeal No. 01A33910 (June 16, 2004) (award of $12,000.00 in which complainant was subjected to ridicule and taunts about her hearing loss and threatened and gossiped about by her supervisor. Complainant stated that the harassment impacted her health and that she no longer went into town); Van Woken v. Dep't of Homeland Sec., EEOC Appeal No. 07A30134 (May 11, 2004) (award of $12,000.00 in non-pecuniary damages to complainant who was subjected to harassment and experienced stress, insomnia, headaches, and panic attacks). We find that this award is not monstrously excessive and is consistent with the amount awarded in similar cases. Finally, regarding the Agency's argument that Complainant is a member of the Hubbard et al. settlement and that this should be taken into account regarding his award of compensatory damages, we are not persuaded by this assertion. We acknowledge, the Agency, in its final decision, states "[t[he Class Administrator indicates that [Complainant] filed a claim in connection with this class action." However, the record is devoid of any evidence (such as an affidavit from the Class Administrator) that Complainant received or will receive a payment pursuant to this class action.4 Based on the foregoing, the Hubbard et al. class action has not factored into our determination of compensatory damages in the instant matter. Accordingly, we MODIFY the Agency's final decision and remand this matter to the Agency to take the following actions as set forth in the Order below. ORDER To the extent it has not already done so, within thirty (30) calendar days of the date this decision is issued, the Agency shall: 1. Pay Complainant $12,000.00 in non-pecuniary damages. 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 (H1016) 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 the date this decision was issued. 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 (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 December 22, 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 The record reflects that the Agency initially dismissed claim (8) for failure to state a claim reasoning that it was a collateral attack on the grievance process. We reversed the Agency's dismissal of claim (8) and found that Complainant was alleging that he was denied the right to a certified ASL interpreter at meetings with his supervisor where his union steward was present. See EEOC Appeal No. 0120121221 (May 14, 2014). 3 We found no discrimination regarding the other claims and bases. See EEOC Appeal No. 0120121221 (May 14, 2014). 4 The record contains a declaration under penalty of perjury from Complainant dated August 19, 2014. Therein, Complainant asserts that he did not remember receiving any money for the class action. Complainant further states that he did not believe he was included in the class action because he filed his own EEO complaint. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ 2 0120142824 7 0120142824