Reference #: 0120160472 Hector Aleman 2004 Morningside Dr Garland, TX 75041 Reference #: 0120160472 Billie J. Cox 5505 Mott St Nevada, TX 75173 Reference #: 0120160472 U.S. Postal Service (Southern) NEEOISO - Appeals U.S. Postal Service PO Box 21979 Tampa, FL 33622-1979 U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Wilda M.,1 Complainant, v. Megan J. Brennan, Postmaster General, United States Postal Service (Southern Area), Agency. Appeal No. 0120160472 Hearing No. 450-2014-00119X Agency No. 1G-756-0035-13 DECISION On November 6, 2015, Complainant filed a premature appeal, pursuant to 29 C.F.R. § 1614.403(a), prior to the issuance of the Agency's November 10, 2015, final order2 concerning her 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. For the following reasons, the Commission AFFIRMS the Agency's final order. ISSUES PRESENTED The issues presented are: (1) whether the Equal Employment Opportunity Commission Administrative Judge's (AJ) decision finding no discrimination based on race is supported by substantial evidence in the record; and (2) whether the AJ's award of $10,000 in non-pecuniary compensatory damages is supported by substantial evidence in the record. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Mail Handler Equipment Operator at the Agency's Dallas Network Distribution Center (NDC) facility in Dallas, Texas. Complainant's first-level supervisor was a Supervisor, Distribution Operations (S1), and her second-level supervisor was the Manager of Distribution Operations. On July 17, 2013, S1 told S2 that he did not see the jitney that Complainant needed to do her job. S2 stated that he would walk with Complainant to another jitney. According to S2, while he was walking with Complainant, she threatened him, repeatedly cursed at him, including by calling him a "motherfucker," and refused to follow his instruction to go to the foreman's office. According to Complainant, S2 accused her of calling him a "black motherfucker." Complainant denied threatening S2 or referencing his race or color, and she said that the only curse word that she used was when she complained that the Agency was working the "dog shit" out of her. Complainant stated that she did not immediately report to the foreman's office because she wanted a union representative. S2 averred that he called security and put Complainant off the clock for the day. Complainant was compensated for July 17, 2013, and she was not issued any discipline for her conduct that day. On October 17, 2013, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the bases of race (Caucasian) and sex (female) when on July 17, 2013, she was put off the clock.3 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 AJ. Complainant timely requested a hearing and the AJ held a hearing on January 8, 2015. On September 15, 2015, the AJ issued a decision on liability, concluding that Complainant established by a preponderance of the evidence in the record that she was subjected to discrimination based on sex.4 The AJ found that there was credible testimony at the hearing from S1 and from a union steward (U1) that S2 treated female subordinates more harshly than male subordinates. The AJ found that Complainant credibly testified about what happened on July 17, 2013, and that she was credible when she testified that the only profanity that she used that day was when she accused S2 of working the "dog shit" out of her. At the hearing, S2 denied accusing Complainant of calling him a "black motherfucker," testifying instead that Complainant was causing a commotion by repeatedly cursing and calling him a "motherfucker," but the AJ found that S2's testimony on this point was directly contradicted by credible testimony given by U1 and a second union steward (U2), who both testified that S2 asked if they had heard Complainant call him a "black motherfucker." Therefore, the AJ found that the Agency's legitimate, nondiscriminatory reason for putting Complainant off the clock on July 17, 2013, had been rebutted. The AJ issued a second decision on liability and relief September 29, 2015. In the September 29, 2015, decision, the AJ addressed Complainant's race discrimination claim, finding that Complainant failed to establish a prima facie case of discrimination based on race. In light of Complainant's testimony that she experienced weight loss, severe anxiety, depression, stress, and low libido, that she was prescribed an anti-anxiety medication, and that these conditions negatively impacted her marriage, the AJ awarded Complainant $10,000 in non-pecuniary compensatory damages. The AJ also ordered the Agency to provide training to S2, to post a notice, and to ensure that S2 and Complainant do not work on the same tour as long as they work at the same facility. The AJ added that Complainant should not be the one reassigned unless she explicitly requested or expressly consented to a tour change. The Agency subsequently issued a final order fully implementing the AJ's finding that Complainant proved that the Agency subjected her to discrimination as alleged and the ordered relief. CONTENTIONS ON APPEAL On appeal, Complainant contends that the AJ failed to adjudicate her race discrimination claim. According to Complainant, S2 committed perjury at the hearing when he said that Complainant was late to work on July 17, 2013. Complainant requests $275,000 in non-pecuniary compensatory damages. In response to Complainant's appeal, the Agency contends that the AJ did rule on Complainant's race discrimination claim when she determined that Complainant failed to establish a prima facie case of race discrimination. The Agency argues that the record does not support an award of non-pecuniary compensatory damages in excess of the $10,000 awarded by the AJ. In response to the Agency's contentions on appeal that the amount of non-pecuniary compensatory damages ordered by the AJ was appropriate, Complainant contends that the cases cited by the Agency are irrelevant. Complainant requests that the Commission punish the Agency for violating Title VII. Finally, Complainant maintains that the Agency has violated the AJ's order because S2 has been seen at the NDC during Complainant's scheduled shift. 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. 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). As a preliminary matter, we find that, while the AJ erroneously failed to address race as a basis in her September 15, 2015, decision, she did conclude that Complainant failed to establish a prima facie case of race discrimination in her subsequent September 29, 2015, decision. Accordingly, we will address the merits of Complainant's race claim. Disparate Treatment Based on Race To prevail in a disparate treatment claim such as this, Complainant must satisfy the three-part evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Complainant must initially establish a prima facie case by demonstrating that he or she was subjected to an adverse employment action under circumstances that would support an inference of discrimination. Furnco Constr. Co. v. Waters, 438 U.S. 567, 576 (1978). Proof of a prima facie case will vary depending on the facts of the particular case. McDonnell Douglas, 411 U.S. at 804 n. 14. The burden then shifts to the Agency to articulate a legitimate, nondiscriminatory reason for its actions. Tex. Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981). To ultimately prevail, Complainant must prove, by a preponderance of the evidence, that the Agency's explanation is pretextual. Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 120 S.Ct. 2097 (2000); St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 519 (1993). Here, we find that substantial evidence in the record supports the AJ's determination that that Complainant failed to establish a prima facie case of discrimination based on race by the preponderance of the evidence in the record. Non-Pecuniary 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.5 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). In West v. Gibson, 527 U.S. 212 (1999), the Supreme Court held that Congress afforded the Commission the authority to award compensatory damages in the administrative process. 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. 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. 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. 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). 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 (July 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). Evidence from a health care provider or other expert is not a mandatory prerequisite for recovery of compensatory damages for emotional harm. A complainant's own testimony, along with the circumstances of a particular case, can suffice to sustain his or her burden in this regard. 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. The absence of supporting evidence, however, may affect the amount of damages appropriate in specific cases. See Lawrence, EEOC Appeal No. 01952288. Complainant has requested $275,000 in non-pecuniary damages, but the AJ only awarded Complainant $10,000. Taking into account the evidence submitted by Complainant, we find that substantial evidence in the record supports the award of $10,000, which takes into account the severity of the harm suffered and is consistent with prior Commission precedent. See Mike G. v. Dep't of Agriculture, EEOC Appeal No. 0120152027 (Sep. 8, 2016) (awarding $10,000 in non-pecuniary damages based on exacerbation of depression, anxiety, and post-traumatic stress disorder, weight gain, and sleeplessness); Complainant v. Dep't of the Treasury, EEOC Appeal No. 0120133266 (Feb. 11, 2015) (awarding $10,000 in non-pecuniary damages for worsening multiple sclerosis, humiliation, depression, anguish, anxiety, and despair); Ferebee v. Dep't of Homeland Security, EEOC Appeal No. 0720100039 (Apr. 24, 2012) (awarding $10,000 in non-pecuniary damages based on Complainant's testimony regarding his fear, loss of sleep, and loss of appetite). Implementation of Equitable Relief Ordered by the AJ On appeal, Complainant contends that the Agency has not fully implemented the relief ordered by the AJ because S2 has been seen at the NDC during her tour. We restate the AJ's order, as modified below. CONCLUSION Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we AFFIRM the Agency's final order fully implementing the AJ's decision and REMAND the matter to the Agency for processing in accordance with the below ORDER. ORDER To the extent that it has not already done so, the Agency shall take the following remedial action: 1. Within 30 calendar days of the date this decision is issued, the Agency shall ensure that S2 and Complainant are not assigned to the same tour as long as they work at the same facility. Only upon Complainant's specific request or express consent should Complainant be reassigned. 2. Within 60 calendar days of the date this decision is issued, the Agency shall pay Complainant $10,000 in compensatory damages, less any amount previously paid to Complainant as compensatory damages. 3. Within 90 calendar days of the date this decision is issued, the Agency shall provide a minimum of eight hours of interactive or in-person training to S2, with a special emphasis on discrimination based on sex and retaliation. 4. Within 60 calendar days of the date this decision is issued, the Agency shall consider taking disciplinary action against S2. 5. Within 30 calendar days of the date this decision is issued, the Agency shall post a notice, as stated in the statement entitled, "Posting Order." The Agency is further directed to submit a report of compliance in accordance with 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 (G0617) The Agency is ordered to post at its Dallas, Texas Network Distribution Center 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 was issued, 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 as directed in the paragraph entitled "Implementation of the Commission's Decision," within 10 calendar days of the expiration of the posting period. The report must be in digital format, and must be submitted via the Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). 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 (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 8-25-2017 __________________ 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 According to the record, the Agency received the AJ's decision and the hearing record on October 7, 2015, which makes the Agency's final order timely issued. 3 The Agency dismissed an additional claim on procedural grounds. Because Complainant does not raise the procedural dismissal on appeal, the Commission will not address the dismissed claim. 4 The AJ's September 15, 2015, decision failed to address the basis of race. 5 We note that compensatory damages are not intended to punish the Agency and that punitive damages are not available for federal employees. See Jones v. Dep't of Health and Human Services, EEOC Request No. 05940377 (January 23, 1995) (citing Graham v. U.S. Postal Serv., EEOC Request No. 05940132 (May 19, 1994)). --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ 2 0120160472 9 0120160472