U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Kiara R,1 Complainant, v. Megan J. Brennan, Postmaster General, United States Postal Service (Capital Metro Area), Agency. Appeal No. 0120152620 Hearing No. 410-2010-00255X Agency No. 4H-300-0043-10 DECISION On July 24, 2015, Complainant filed an appeal, pursuant to 29 C.F.R. § 1614.403(a), from the Agency's June 24, 2015, final decision concerning her equal employment opportunity (EEO) complaint alleging employment discrimination in violation of Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Rural Carrier Associate at the Agency's Centerville facility in Snellville, Georgia. On January 22, 2010, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the bases of disability (deaf) and in reprisal for prior EEO activity when: (1) by letter dated November 16, 2009, management put her in emergency placement off-duty status and subsequently issued her a Notice of Removal for Improper Conduct/Delay of Mail on November 25, 2009; and (2) management failed to provide her with a reasonable accommodation when it did not provide her with a sign language interpreter for meetings and safety talks. At the conclusion of 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 (EEOC or Commission) Administrative Judge (AJ). Complainant timely requested a hearing but subsequently withdrew her request. Consequently, the Agency issued a final decision pursuant to 29 C.F.R. § 1614.110(b). The decision concluded that Complainant failed to prove that the Agency subjected her to discrimination as alleged. Complainant appealed this decision. In EEOC Appeal No. 0120122130 (March 11, 2015), the Commission found that Complainant failed to show that the Agency's action alleged in claim (1) constituted discrimination and/or retaliation. As to claim (2), the decision noted that the Agency acknowledged that it did not provide Complainant with an interpreter for standup meetings or safety talks at any point after that initial training period. Additionally, the Postmaster (PM) stated that she was unaware of the requirements regarding sign language interpreters and did not believe it was necessary to provide Complainant with an interpreter unless one was requested. The PM also stated that even during a safety talk regarding massive flooding in the local area, which took place on September 21, 2009, Complainant was not provided with an interpreter despite the content of the talk addressing an immediate potential threat to employee safety. The PM stated that she believed an interpreter was not necessary because Complainant did not request one and she believed Complainant understood the content of the talk. The Commission did not agree. The decision noted that Commission has held that for a severely hearing impaired employee who can sign, reasonable accommodation, at a minimum, requires providing an interpreter for safety talks, discussions on work procedures, policies or assignments, and for every disciplinary action so that the employee can understand what is occurring at any and every crucial time in his or her employment career, whether or not he/she asks for an interpreter. As such, the decision found that the Agency failed to provide Complainant with a reasonable accommodation in violation of the Rehabilitation Act. The Commission ordered the Agency to conduct an investigation and to issue a final decision regarding Complainant's entitlement to compensatory damages. The decision also instructed the Agency to immediately ensure that Complainant is provided a qualified sign language interpreter when necessary to ensure that she has access to information communicated in the workplace equal to that of nondisabled employees. Finally, the decision ordered the Agency to conduct training for management on the requirements for reasonable accommodation and to consider disciplinary action for management that violated the Rehabilitation Act. The Agency conducted a supplemental investigation into Complainant's entitlement to compensatory damages. Complainant provided an affidavit requesting $25,000 in non-pecuniary damages for the "pain and suffering during the twenty-two (22) month time period she was not provided a Sign Language Interpreter while performing her duties at the Centerville Branch." She noted that she was given an interpreter during her initial training in September 2006. Thereafter, from January 2008 to November 2009, she was not given a sign language interpreter for stand up talks, safety talks or discussions on work procedures, policies or assignments. She specifically stated that she had no interpreter to assist her over the 22 months for safety meetings or work production. She was consistently afraid to miss meetings so attended them even though she did not understand what was said, causing extreme stress and anxiety. Because she could not get the information, she constantly feared that she missed something or that she was not performing work properly. She made constant requests for a sign language interpreter and was made to feel like she was doing something wrong in asking. She averred that she felt isolated from her coworkers and was not made comfortable to talk to them about the problems she was experiencing. She also noted that as a result of the denial of reasonable accommodation, she experienced emotional distress resulting in sleeping problems, reoccurring headaches, weight loss, suffered nausea, and anxiety. Complainant's mother also provided an affidavit in support Complainant's claim for non-pecuniary damages. Her mother averred that she has lived with Complainant since 1989. She indicated that Complainant was initially excited about getting a job with the Agency considering her disability. However, Complainant told her mother that they did not provide her with a sign language interpreter and she could not understand directions given by management. Her mother noted that she would contact the Agency on Complainant's behalf to make requests for the reasonable accommodation and in 2008, Complainant informed her mother that they would no longer be providing one. Her mother supported Complainant's statements regarding the stress and anxiety she experienced, adding that Complainant appeared depressed and would not socialize with her friends. Based on the evidence collected, the Agency issued its final decision on June 24, 2015, regarding Complainant's claim for compensatory damages. The Agency noted that in Complainant's initial investigation, she noted late payment on four bills. However, Complainant did not provide any evidence to show that the late bill payments were connected to the Agency's denial of reasonable accommodation. As such, the Agency found that Complainant did not show that she was entitled to pecuniary damages. The Agency then turned to Complainant's claim for non-pecuniary damages. The Agency found that Complainant's request for $25,000 was excessive. The Agency noted that in her initial investigation, she provided a timeline in which she noted being upset and depressed, but failed to connect it to the Agency's denial of reasonable accommodation. However, the Agency did point to Complainant's concerns that the failure to provide a sign language interpreter did not allow for her to learn the rules and regulations for her job. The Agency then re-analyzed the finding of discrimination asserting that the only real issue was "safety issues" and not the policies involving her position. The Agency also found that Complainant's only witness was her mother. The Agency stated that it was not clear whether Complainant lived with her mother at the time of her employment. Based on the Agency's finding of the lack of supporting evidence, the Agency awarded Complainant $3,000 in non-pecuniary damages. The Agency pointed to the Commission's decisions awarding from $ 500 to $ 3,000 in cases ranging in facts from where a Complainant was denied an interpreter for one service talk; to cases in which duration had not been established by complainants, to a case in which Complainant's hearing condition was not accommodated at a training course. The Agency concluded that Complainant's evidence was similar to these cases and awarded her $ 3,000. This appeal from Complainant followed. ANALYSIS AND FINDINGS Pursuant to section 102(a) of the Civil Rights Act of 1991, Complainant who establishes his claim of unlawful discrimination may receive, in addition to equitable remedies, 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). 42 U.S. C. § 1981a(b)(3). For an employer with more than 500 employees, such as the Agency, the limit of liability for future pecuniary and non-pecuniary damages is $300,000. Id. The particulars of what relief may be awarded, and what proof is necessary to obtain that relief, are set forth in detail in EEOC Notice No. 915.002, Compensatory and Punitive Damages Available Under Section 102 of the Civil Rights Act of 1991 (July 14, 1992). Briefly stated, the complainant must submit evidence to show that the agency's discriminatory conduct directly or proximately caused the losses for which damages are sought. Id. at 11-12, 14; Rivera v. Dep't of the Navy, EEOC Appeal No. 01934157 (July 22, 1994). The amount awarded should reflect the extent to which the agency's discriminatory action directly or proximately caused harm to the complainant and the extent to which other factors may have played a part. EEOC Notice No. N 915.002 at 11-12. The amount of non-pecuniary damages should also reflect the nature and severity of the harm to the complainant, and the duration or expected duration of the harm. Id. at 14. In Carle v. Dep't of the Navy, the Commission explained that "objective evidence" of non-pecuniary damages could include a statement by the 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 could address the outward manifestations of the impact of the discrimination on the complainant. Id. Complainant could 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 Agriculture, EEOC Appeal No. 01945652 (July 17, 1995). Upon review, we find that the Agency properly held that Complainant failed to provide any evidence to show that she is entitled to pecuniary damages. As such, we shall turn to Complainant's claim for non-pecuniary damages as awarded by the Agency. Upon review, we find that the Agency failed to support its determination that Complainant is entitled to $ 3,000 in non-pecuniary damages. As an initial matter, we note that Agency erred in determining that Complainant failed to assert the duration of the harm experienced. Complainant clearly stated that she was under emotional distress over 22 months when the Agency failed to provide her with a sign language interpreter for a series of events from safety talks to general work policy and procedures. The Agency also attempted to limit the award of damages asserting that the Commission's decision only involved safety talks. However, a review of the Commission's decision did not support that assertion. The decision noted that the Agency did not contest it failed to provide Complainant with an interpreter at stand up meetings, safety talks, or at any point following the initial training period. The Commission found unequivocally that this failure to provide Complainant with a reasonable accommodation constituted a violation of the Rehabilitation Act. Furthermore, the Agency contested Complainant's statements regarding her emotional distress resulting in sleeping problems, reoccurring headaches, weight loss, suffered nausea, and anxiety without any evidence. We note that Complainant's worksheet provided in the initial investigation on multiple issues was simply an initial document which we find carries little weight compared to a supplemental investigation which is solely focused on the harm she experienced due to the single issue of denial of reasonable accommodation. Furthermore, we find no inconsistencies between the documents. We note that the Agency discredited the mother's affidavit, asserting that it was not clear from the record that Complainant lived with her mother and determined that the mother's phrasing of harm was suspect. We are not troubled by the fact that the mother used the same phrases to describe Complainant's harm particularly in light of the fact that they are very close and appear to live in the same household and travel together. Finally, we are not persuaded by the cases cited by the Agency in support of their award. We note that several of the cases did not involve denial of reasonable accommodation. Others cited by the Agency involved Complainants who were denied a sign language interpreter on a single occasion or a single training while the case at hand involved almost two years of denial of reasonable accommodation. As such, we find that the Agency's award was not appropriate. Furthermore, we determine that Complainant's request for $ 25,000 was reasonable considering the harm experience and Commission precedent in cases involving denial of reasonable accommodation. See generally Grady v. U.S. Postal Serv., EEOC Appeal No. 01A03194 (March 19, 2003) (providing $35,000 in non-pecuniary damages to Complainant who was denied reasonable accommodation citing a loss of sleep and concentration, irritability, mood swings, stomach problems, and depression which was confirmed by family members); Wallace v. Dep't of Veterans Affairs, EEOC Appeal No. 01A11904 (Sept. 30, 2002) (awarding $ 22,500 to Complainant who was denied reasonable accommodation noting limited harm of five months); Banks v. U.S. Postal Serv., EEOC Appeal No. 07A20037 (Sept. 29, 2003) (finding Complainant was entitled to $35,000 where she was denied a reasonable accommodation, assigned to a work shack for 18 months, and experienced humiliation, intimidation, embarrassment, and depression). CONCLUSION Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we MODIFY the Agency's final decision and remand the matter in compliance with the ORDER below. ORDER (C0610) Within sixty (60) days of the date this decision is issued, the Agency is ordered to pay Complainant $ 25,000 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)), she 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 (K0617) 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 in the digital format required by the Commission, and submitted via the Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). 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 (M0617) 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. A party shall have twenty (20) calendar days of receipt of another party's timely request for reconsideration in which to submit a brief or statement in opposition. 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. Complainant's request 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 agency's request must be submitted in digital format via the EEOC's Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). 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 August 10, 2017 __________________ 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 0120152620 8 0120152620