U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Edie R.,1 Complainant, v. Megan J. Brennan, Postmaster General, United States Postal Service (Western Area), Agency. Appeal No. 0120160784 Hearing No. 541-2012-00112X Agency No. 1E-801-0113-11 DECISION On November 19, 2015, Complainant filed an appeal with the Equal Employment Opportunity Commission (EEOC or Commission), pursuant to 29 C.F.R. § 1614.403(a), from the Agency's October 19, 2015, 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., Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq., and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq. The Commission accepts the appeal in accordance with 29 C.F.R. § 1614.405. BACKGROUND Complainant was an Agency employee for approximately twenty years. In 1999, Complainant suffered an injury at work, which resulted in Traumatic Brain Injury; cognitive, neurological, and affective deficits; depressive disorder; panic disorder; back problems; body tremors; memory loss; and migraines. Complainant returned to work in December 2005. During the relevant time, Complainant worked as an Acting Supervisor of Distribution Operations at the Agency's Processing and Distribution Center in Denver, Colorado. Believing that she was subjected to a hostile work environment, on September 20, 2011, Complainant filed a formal complaint based on race, color, age, and disability. After an 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 between January 27 and 29, 2015. Specifically, the issue2 at the hearing was whether: From August 2010 through February 10, 2012, Complainant was subjected to a hostile work environment, based on disability or gender, when she was verbally and/or physically abused and degraded. On August 31, 2015, the AJ issued a decision finding that Complainant was subjected a hostile work environment based on her sex and disability. The AJ determined that Complainant was "subjected both to repeated unwanted touching, as well as unwanted demeaning statements and criticism of her work" at the hands of the Lead Manager Distribution Operations (hereinafter "Manager"). Manager was found to have made sexual and vulgar comments and actions. As for liability, the AJ concluded Manager's actions were attributable to the Agency because she was a supervisor and management took no action when Complainant, and others, complained. The AJ observed that Complainant "was extremely vulnerable". The hostile work environment caused her to suffer from migraines, panic attacks, and vertigo. Her diabetes was exacerbated, becoming "unmanageable". Moreover, Complainant had difficulties performing her job duties as the stress exacerbated her memory and concentration issues. Consequently, the AJ awarded Complainant $125,000. The AJ also believed Complainant was entitled to $6,000 in future pecuniary damages for a year of counseling. The AJ found that although Complainant may have been fragile, prior to the harassment, she was functional. With respect to attorney's fees and costs, Complainant requested $102,323.23in fees and $950.12 in costs. The fee was based upon an hourly rate of $400 per hour, which the Agency did not challenge. The AJ found the rate to be reasonable, and next turned to the number of hours expended. The Agency argued that many of the hours were duplicative, based on the attendance of two attorneys at the hearing. The AJ disagreed, noting that each attorney examined the attorney's own witnesses and "brought own strengths and knowledge to the case". The AJ, however, did deduct 1.84 hours ($736.00) for the time that one attorney listened to the other's closing. As for the Agency's challenges to the time spent on the fee petition (13.24 hours), the AJ found it to be reasonable. The Agency also asserted that many items were "clerical" and should be deducted. The AJ considered many not to be clerical, particularly when the attorneys did not have paralegals, but did deduct some entries for a total of $401.60. The AJ was not persuaded by the Agency's contentions that the time requested for discovery and depositions was excessive. Instead, the AJ noted that, even for an experienced attorney, it takes time to learn the facts of a case and create a litigation strategy. Further, the AJ observed that much of the time when both attorneys for Complainant were present, the bill only reflected time for one. After the $1,137.60 in deductions, the AJ granted Complainant $101,185.63 in attorney's fees. As for costs, Complainant's request was reduced to $851.74, after reducing the charge for legal research which is properly considerer overhead. On October 19, 2015, the Agency issued a final action implementing the AJ's decision. Complainant filed the instant appeal, seeking an increase in non-pecuniary damages and arguing that the Agency has failed to comply with the AJ's decision. ANALYSIS AND FINDINGS Standard of Review 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). Compensatory Damages As an initial matter, we note that because Complainant's appeal concerns only the AJ's non-pecuniary damages award we shall limit our consideration to that issue. Further, in response to Complainant's appeal, the Agency argues that the AJ erroneously "made conclusions of law not in the record". The Agency challenges the AJ's determination that Complainant is an individual with a disability. The Agency also contends that based on the evidence the damages award should be decreased. However, the Commission reminds the Agency that when it issued its Final Order implementing the AJ's decision, it is now foreclosed from disputing the AJ's decision and seeking to reduce the amount awarded. Consequently, our consideration of the non-pecuniary damages award shall be based upon the instant record and Complainant's arguments on appeal. When discrimination is found, an agency must provide a complainant with a remedy which constitutes full, make-whole relief to restore him or her as nearly as possible to the position which would have been occupied absent the discrimination. 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). 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. Lawrence, EEOC Appeal No. 01952288. In this case, the AJ awarded Complainant $125,000 in non-pecuniary compensatory damages. The AJ primarily relied upon Complainant's hearing testimony and that of her psychotherapist. Complainant suffered from PTSD and depression. She experienced panic attacks, nightmares, avoidant behavior and crying. On appeal, Complainant argues that the award does not reflect the severity and duration of her injuries. Complainant notes that it has been more than four years since she was subjected to the hostile work environment but that she still suffers from "PTSD and the multiple symptoms associated with that condition." According to Complainant, while the AJ acknowledged that duration of harm should be considered, the AJ did not acknowledge that Complainant's injuries have lasted for years. Complainant asserts that the AJ also neglected to refer to the physical component of the harassment when ascertaining the amount to award. Complainant contends that in prior Commission cases similar to Complainant's situation have awarded $200,000.00. Based on our review of the evidence in light of the Commission's cases regarding non-pecuniary damages awarded for emotional harm, we find that substantial evidence in the record supports the AJ's award of $125,000. We find that the amount is not "monstrously excessive" standing alone, is not the product of passion or prejudice, and is consistent with Commission precedent. Because of its implementation of the AJ's decision and damages award, the Agency also found the amount to be appropriate. In other cases, the Commission has awarded similar amounts for emotional harm such as anxiety, depression, stress, post-traumatic stress disorder, sleeplessness, damage to professional reputation, and withdrawal from relationships. See Brown-Fleming v. Dep't of justice, EEOC Appeal No. 0120082667 (Oct. 28, 2010) ($150,000 awarded in termination case where complainant suffered from depression, anxiety, stress, insomnia, difficulty concentration, disassociation, crying spells, social isolation, damage to her professional reputation, withdrawal from relationships, and nightmares); Champion v. US. Postal Serv., EEOC Appeal No. 0720090037 (Mar. 10, 2010) ($125,000 awarded in two-year harassment case where complainant suffered from depression, anxiety, sleeplessness, and required psychiatric treatment); Morrison v. U.S. Postal Serv., EEOC Appeal No. 07A50003 (Apr. 18, 2006) ($90,000 awarded in one-year harassment case where complainant suffered from depression, anxiety, sleeplessness, post-traumatic stress disorder, and where complainant's psychological trauma continued well past the date she resigned from the agency); Teal v. U.S. Postal Serv., EEOC Appeal No. 01991097 (July 26, 2000) ($95,000 awarded in 11-month harassment case where complainant suffered severe emotional distress and anxiety, sought medical attention, and used extensive sick leave). Accordingly, considering the nature, duration, and severity of Complainant's emotional harm and with reference to damage awards reached in comparable cases, we find proper the AJ's award of $125,000 in non-pecuniary compensatory damages. CONCLUSION Based on a thorough review of the record and the contentions on appeal, we AFFIRM the AJ's decision, implemented by the Agency ORDER Within sixty (60) calendar days of the date this decision is issued the Agency shall, to the extent it has not already done so: (1) Pay Complainant $125,000.00 in non-pecuniary compensatory damages. (2) Pay Complainant $6,000.00 in future pecuniary damages. (3) Pay Complainant's counsel $101.185.63 in attorney's fees and pay Complainant $851.74 in costs. (4) Post the attached Notice in accordance with the Posting 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 (G0617) The Agency is ordered to post at its Denver, Colorado 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). 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 (S0610) 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. 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 May 10, 2018 __________________ 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 AJ decision, before the matter was transferred to her, the prior AJ granted the Agency's motion for summary judgment with respect to the claims of discrimination based on race, color, and age. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ 2 0120160784 3 0120160784