U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Washington, DC 20507 Lara G.,1 Complainant, v. Megan J. Brennan, Postmaster General, United States Postal Service, Agency. Request No. 0520130618 Prior Request No. 0520120027 Appeal No. 0720100019 Hearing Nos. 550-2008-00083X 550-2008-00084X 550-2008-00085X Agency Nos. 4G-870-0022-05 4G-870-0001-06 4G-870-0035-06 DECISION ON SUA SPONTE REOPENING AND RECONSIDERATION By letters dated October 31, 2013, the above parties were notified of the Equal Employment Opportunity Commission's intent, upon its own motion, to reopen and review the decision in EEOC Appeal No. 0720100019 (August 29, 2011), request for reconsideration denied, EEOC Request No. 0520120027 (March 29, 2012). The Commission has inherent authority to reopen an administrative EEO appeal irrespective of whether any decision on the matter has become final. Complainant v. Dep't of Def., EEOC Request Nos. 0520140248, 0520140205 (Aug. 7, 2015 (citing In the Matter of Frank Sheehan, EEOC Request No. 05800034 (Oct. 15, 1980)). ISSUES PRESENTED The issues presented are: (1) whether the Commission's appellate decision properly refused to adjust the compensatory damages awarded to Complainant to account for inflation; and (2) whether the Agency complied with the Commission's Order to restore any leave that Complainant took due to the Agency's discriminatory conduct. BACKGROUND Complainant filed three formal EEO complaints alleging that the Agency subjected her to harassment and discrimination on the basis of disability and in reprisal for prior protected activity. After a hearing on the complaints, an EEOC Administrative Judge (AJ) issued an October 13, 2009, decision finding that the Agency subjected Complainant to retaliatory harassment with respect to the claims raised in two of the complaints. The AJ found no discrimination on the basis of disability with respect to any of the claims. She concluded that Complainant was "entitled to either restoration of leave, and/or back pay with benefits for any leave without pay taken during the periods she was absent from work from January of 2005 and May of 2006." As part of the relief due to Complainant, the AJ ordered the Agency to provide Complainant "back pay, with interest, and all other benefits (leave restoration, health insurance, retirement benefits) due complainant for the period of time she was absent from work from January of 2005 and May of 2006." The AJ also ordered the Agency to pay Complainant $29,000.00 in past and future pecuniary damages. In addition, citing Truell v. Department of the Army, EEOC Appeal No. 07A30056 (September 3, 2003) (approving award of $95,000 for complainant who experienced "loss of self esteem, depression, grief, anguish, embarrassment, anger, stress, weight loss, sleeplessness, withdrawal from friends, co-workers and family and a general loss of enjoyment in life"), the AJ ordered the Agency to pay Complainant $100,000.00 in non-pecuniary compensatory damages "for stress, depression, impact on relationships and loss of enjoyment of life she suffered over a lengthy period of time as a result of proven discrimination." The Agency issued a final decision accepting the AJ's findings of discrimination but rejecting the AJ's award of back pay, compensatory damages, attorney's fees and costs, and the placement of a Notice of Posting. Both parties appealed to this Commission. On appeal, the parties accepted the AJ's liability determinations but challenged the amount and type of relief ordered. Complainant argued, among other things, that the AJ erroneously failed to order the restoration of leave that Complainant took for appointments with her therapist. She also argued that the award of non-pecuniary compensatory damages was too low and was inconsistent with Commission precedent. In Complainant's view, when comparing the amount awarded to her with the amount awarded in similar cases, the Commission should consider the rate of inflation and should adjust the award to reflect the present-day dollar value. For example, using the Department of Labor Bureau of Labor Statistics (BLS) Inflation Calculator, Complainant asserted that a 2001 award of $200,000.00 would be worth $244,705.82 in 2010. Complainant asked the Commission to award her $300,000 in non-pecuniary damages and to "order the Agency to provide the Complainant with equitable relief such as Back Pay and all benefits, including restoration of leave for periods she was denied working hours (Complaint 1, Claim 1), and for the periods of time January 2005 through April 1, 2005 and July 2006 through September 13, 2007." The Agency argued that liability for back pay and benefits, including restoration of leave, was limited to the following periods: January 1 to March 31, 2005; and December 1, 2005, to January 31, 2006. In addition, the Agency disputed Complainant's claim that she was entitled to the restoration of leave taken for appointments with her therapist. The Agency argued that Complainant did not cite any record evidence that she used leave for such appointments. The Agency also argued that, to the extent that Complainant took leave for medical appointments, she was entitled to only a 50-percent restoration of leave because other factors contributed to the need for leave. With respect to Complainant's argument that the Commission should adjust compensatory-damage awards to account for inflation, the Agency contended that Complainant provided no support for her argument and that neither the Commission nor federal courts had accepted Complainant's argument. In our appellate decision, we modified the award of back pay and benefits, affirmed the award of $100,000.00 in non-pecuniary compensatory damages, modified the award of pecuniary damages, and modified the award of attorney's fees and costs. With respect to back pay and benefits, we stated, [W]e MODIFY the time period for which Complainant is entitled to back pay for lost work time, associated with the incidents raised in Complaints 1 and 3, as identified here, as September 2004 through January 27, 2005 (Complaint 1), and from December 2005 to May 2006 (Complaint 3). Moreover, Complainant's relief should also include restoration of any leave she used because of the Agency's discriminatory conduct, during the above-referenced time frames, to include any sick leave to attend therapy appointments, to the extent that it can be documented. With respect to non-pecuniary damages, we determined that not all of Complainant's emotional distress was attributable to the Agency's discriminatory conduct. In that regard, we stated that "non-work related factors, such as Complainant's debt, the death of her dog, and pain and incapacity from a knee injury played a significant role." In response to Complainant's argument that the award of non-pecuniary damages should be adjusted to reflect the present-day dollar value, we stated that "we discern[ed] no clear legal precedent to allow for this upward adjustment." EEOC Appeal No. 0720100019 (Aug. 29, 2011). We ordered the Agency to take remedial action and to provide Complainant with back pay, interest, and benefits for lost work from September 2004 through January 27, 2005, and from December 2005 to May 2006. With respect to the restoration of leave, we stated, "Within sixty (60) calendar days of the date that this decision becomes final, the Agency shall calculate and restore any leave taken by Complainant due to its discriminatory conduct, including any sick leave taken to attend therapy appointments." Id. Complainant requested reconsideration of the appellate decision. She challenged the decision's determinations regarding non-pecuniary compensatory damages, attorney's fees, and costs. In her request, Complainant argued that the decision to affirm the award of non-pecuniary compensatory damages was not based on substantial evidence and was not in accordance with comparable cases. In addition, she asserted that "the Commission's policy of requiring [Administrative] Judges to issue awards consistent with prior Commission cases works an injustice to present-day complainants due to the inflationary devaluation of prior awards." Contending that "there is no clear legal precedent for this upward adjustment" because the case is one of first impression, Complainant argued that her request should be decided by the EEOC's Commissioners. She further argued: What the Complainant is asking the Commission to do is address, as a matter of first impression, a decision that will substantially affect all federal sector complainants and agencies. The Commission cannot exceed the cap; only Congress can control the ceiling on compensatory damages awards. But what the Commission can do is recognize that its own policy of requiring administrative judges to issue awards in comparison with older Commission cases works a manifest injustice on the present-day complainants because of the loss of value of the earlier awards to which the judges are comparing. Complainant asserted that the Commission should "take judicial notice that the requirement to find 'comparable' awards is present only in administrative cases," where the Commission has held that an award of non-pecuniary compensatory damages should be consistent with the amount awarded in similar cases. She contended that the Commission should have increased the amount of non-pecuniary compensatory damages awarded to her. In response, the Agency argued that Complainant cited no authority to support her argument for an inflation-adjusted increase in the damages award and that her request failed to meet the criteria for reconsideration. We denied Complainant's request for reconsideration. We noted that, in the appellate decision, we considered Complainant's argument that the award of non-pecuniary compensatory damages was insufficient. We found that Complainant had not shown that the appellate decision involved a clearly erroneous application of facts or law. To the extent that Complainant argued that the previous decision was not supported by substantial evidence, we noted that the "substantial evidence" standard applied to appellate review of AJ decisions, not to requests for reconsideration of appellate decisions. We ordered the Agency to take the remedial action outlined in the appellate decision. EEOC Request No. 0520120027 (Mar. 29, 2012). Subsequently, Complainant alleged that the Agency failed to comply fully with the Order in EEOC Appeal No. 0720100019. In that regard, Complainant asserted that the Agency had not provided her with back pay and had not given her a "calculation of the back pay, interest, and benefits owed to her." The Commission docketed a petition for enforcement to examine enforcement of the Order. In response, the Agency stated that it had provided back pay, interest, and a tax offset to Complainant. The Agency also stated that it had adjusted Complainant's leave and that the pay journals for pay period "26/2012" would reflect the leave adjustments. On October 29, 2013, we issued a decision finding that the Agency had provided back pay to Complainant but had not demonstrated that it had calculated and paid interest. Accordingly, we ordered the Agency to issue a check to Complainant for the interest due on her back-pay award. EEOC Petition No. 0420130010 (Oct. 29, 2013). We subsequently notified the parties that the Agency had provided us with documentation sufficient to demonstrate that it had taken the corrective actions ordered in the Commission's decision in EEOC Petition No. 0420130010. EEOC Compliance No. 0620140030 (Dec. 30, 2013). In the meantime, in an October 1, 2013, submission entitled "Complainant's Supplemental Petition for Enforcement," Complainant argued that the Agency had not restored all of the leave owed to her. Complainant asserted that she used "296 hours of annual leave, 167 hours of sick leave and 760 of leave without pay (LWOP) to attend therapy sessions as a result of the Agency's discriminatory conduct." She also asserted that the Agency had restored only four hours of sick leave, which represented the hours of leave that Complainant took to attend therapy during the period covered by the back-pay award. According to Complainant, the appellate decision did "not limit the restoration of leave taken to attend therapy sessions as a result of the Agency's discriminatory conduct to the time period specified for the payment of back pay." She submitted an affidavit in which she stated that she "was forced to expend significant amounts of sick leave, annual leave and [LWOP] in order to seek therapy and psychological relief from the stress and emotional anguish caused by the Agency's discrimination." Complainant also submitted several documents, including earnings statements, leave requests, Family and Medical Leave Act (FMLA) forms, and medical statements. The earnings statements reflect that Complainant did not use any sick leave during pay periods "14 06" and "21 07." She used 3.45 hours of sick leave during pay period "26 06" and 4 hours of sick leave during pay period "14 07." The specific dates covered by the pay periods are not clear. In a September 17, 2006, statement, Complainant's psychotherapist (P1) stated that she began seeing Complainant in November 2005 and that Complainant "presented with a 4 year, 2 month history of severe stress symptoms and depression related to a work situation." A physician (P2) stated in a September 14, 2006, document that Complainant spoke about a hostile work environment and felt "threatened, not only by the hostile environment but also due [to] the recent vandalism of her vehicle." P2 noted in the document that Complainant worked at a substation that had "experienced an anthrax scare" in November 2001 and that Complainant had talked about the hostile work environment "[s]ince then." P1 stated on October 4, 2006, that Complainant could return to work but "needs to continue her weekly psychotherapy appointment schedule so that she can continue to work on her coping strategies and have an outlet to express any work related issues." In a June 26, 2007, FMLA form, P1 stated that Complainant experienced stress, anxiety, and depression "related to ongoing hostile work environment" and that Complainant's condition began on September 25, 2001. A November 17, 2011, "Transaction Journal-Transaction Detail" document lists 57 appointments with P1 from November 17, 2005, to October 25, 2010. Handwritten notes indicate that Complainant used 86 hours of sick leave for 42 appointments. In addition, a handwritten note at the top of Page 1 of the document states, "Physical Therapy Appointments." Other handwritten notes refer to "Workers' Comp," "66 continued LWOP," "300 HRS LWOP," and "FMLA." By letters dated October 31, 2013, we notified the parties that the Commission had decided to reconsider the case on its own motion. We informed the parties that they had 20 calendar days from receipt of the notice to submit comments or a brief. Neither party submitted comments. ANALYSIS The Commission has exercised its discretion to reopen this case on its own motion to address more fully Complainant's argument that her award of compensatory damages should be adjusted upward to account for inflation and to reflect the present-day dollar value of comparable awards. We also address Complainant's argument that the Agency did not restore all of the leave owed to her. Non-Pecuniary Compensatory Damages Complainant argued in her appeal and request for reconsideration that, when comparing the amount of non-pecuniary compensatory damages awarded to her with the amount awarded in similar cases, the Commission should consider the rate of inflation and should adjust the award to reflect the present-day dollar value. She conceded that there is no clear legal precedent for such an adjustment. As we noted in the appellate decision, Section 102(a) of the Civil Rights Act of 1991 provides that a complainant who establishes unlawful intentional discrimination under 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), 29 U.S.C. § 791 et seq., may receive compensatory damages for past and future pecuniary losses. 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. The Commission has held that an award of non-pecuniary damages should not be "monstrously excessive" standing alone, should not be the product of passion or prejudice, and should be consistent with the amount awarded in similar cases. See Ward-Jenkins v. Dep't of the Interior, EEOC Appeal No. 01961483 (Mar. 4, 1999) (citing Cygnar v. City of Chicago, 865 F.2d 827, 848 (7th Cir. 1989)); see also EEOC v. AutoZone, Inc., 707 F.3d 824, 833-34 (7th Cir. 2013) ($100,000 compensatory-damage award not excessive where the damages awarded were "approximately the same value as the compensatory damages awarded in comparable cases"; court considered "whether the damages awarded (1) were monstrously excessive; (2) had no rational connection between the award and the evidence; and (3) were roughly comparable to awards made in similar cases"); McDonough v. City of Quincy, 452 F.3d 8, 22 (1st Cir. 2006) ($300,000 compensatory-damage award not excessive where, after subtracting economic damages, award for emotional distress was "very close" to awards in comparable cases). Some courts, when considering whether to reduce compensatory-damage awards, have considered the present-day value of awards in comparable cases. For example, in EEOC v. AIC Security Investigations, Inc., 55 F.3d 1276 (7th Cir. 1995), the court determined that a $50,000 compensatory-damage award was not excessive when compared to prior awards of $40,000 and $35,000. Noting "that those awards were several years ago, and thus the current value of those awards is considerably greater," the court stated that the "[c]omparability of awards must be adjusted for the changing value of money over time." Id. at 1286. See also Deloughery v. City of Chicago, 2004 WL 1125897 at 7 (N.D. Ill. 2004) (in decision reducing jury's $250,000 compensatory-damage award to $175,000, court noted that older comparable award "should be converted to current dollars"), aff'd, 422 F.3d 611 (7th Cir. 2005) (district court acted within its discretion where remitted award was sufficiently comparable to awards in other cases in the circuit). Similarly, when determining an award of non-pecuniary compensatory damages, the Commission may consider the present-day value of comparable awards. Thus, an AJ who is awarding damages should consider the amounts that the Commission awarded in prior cases involving similar injuries and should determine whether circumstances justify a higher or lower award. The AJ should adjust the award upward or downward according to the relative severity of the complainant's injury. The AJ may then take into consideration the age of the comparable awards and adjust the current award accordingly. In this case, the AJ determined in October 2009 that Complainant's injury was comparable to that of a complainant who was awarded $95,000 in September 2003. The AJ awarded Complainant $100,000, which is $5,000 more than the comparable award. It is not clear whether the AJ, in reaching her determination, took into consideration the time that had passed since the $95,000 award. Given the nearly six-year interval between the comparable award and Complainant's award, we find it appropriate to increase Complainant's award by an additional $10,000. Therefore, we find that Complainant should receive $110,000.00 in non-pecuniary compensatory damages. Accordingly, we will modify the ordered remedy to reflect this increased award. Restoration of Leave The decision in EEOC Appeal No. 0720100019 ordered the Agency to restore leave, including sick leave taken to attend therapy appointments, which Complainant took because of the Agency's discriminatory conduct. As Complainant noted, the restoration of leave was not limited to leave taken during the back-pay period. Instead, as the Commission noted in the decision, the leave restoration pertained to the leave that Complainant took as a result of the Agency's discriminatory conduct from September 2004 through January 27, 2005 (regarding Complaint 1) and December 2005 to May 2006 (regarding Complaint 3). To be entitled to leave restoration, a complainant must demonstrate a causal nexus between the discrimination and the need to take leave. Evans v. Dep't of Justice, EEOC Appeal No. 0120080335 (June 22, 2012) (ordering agency to restore two weeks of sick leave to complainant where complainant's psychiatrist wrote letter to agency stating that complainant experienced emotional stress because of supervisor's actions, that having to draft a memorandum describing supervisor's actions exacerbated the stress, and that complainant should be excused from work for a reasonable period), request for recon. denied, EEOC Request No. 0520120522 (Dec. 11, 2012). The complainant has the burden of proof on this issue. Velez v. U.S. Postal Serv., EEOC Appeal No. 01902746 (Nov. 16, 1990) (therapist's testimony that retaliatory interview exacerbated complainant's stress was sufficient to establish that discrimination caused complainant to take leave immediately after interview, but evidence did not establish that all of the subsequent absences were directly caused by discrimination). To meet that burden, the complainant must present evidence identifying the specific leave that he or she took because of the discrimination. Henley v. Dep't of Justice, EEOC Appeal No. 01A22186 (Nov. 7, 2002) (complainant not entitled to additional restoration of leave where evidence did not identify specific amount of leave complainant took as direct result of discrimination), request for recon. denied, EEOC Request No 05A30364 (Mar. 10, 2003); see also Ellis v. Dep't of Defense, EEOC Appeal No. 01A13314 (Apr. 29, 2003) (complainant not entitled to restoration for leave claimed where, although harassment exacerbated complainant's fibromyalgia and required her to take leave, complainant did not demonstrate how agency's discrimination caused specific use of leave by, for example, providing medical documentation indicating which precise acts by supervisor caused her to take which precise hours of leave). In this case, Complainant asserts that she used 96 hours of annual leave, 167 hours of sick leave, and 760 hours of LWOP to attend therapy sessions. Complainant, who does not explain how she arrived at those numbers, has not established that she used all of that leave as a direct result of the Agency's discriminatory conduct. First, the documents that Complainant submitted do not establish that Complainant used 1,023 hours of leave for therapy. Instead, the handwritten notes on the Transaction Journal-Transaction Detail document indicate that Complainant used 86 hours of sick leave for therapy appointments. Further, although the medical documents that Complainant submitted establish that Complainant received treatment for "work related issues," they do not establish that she used all of the leave because of the conduct found to be discriminatory in this case. For example, some medical documents (P2's September 2006 reference to the November 2001 anthrax scare and P1's June 2007 statement that Complainant's condition began in September 2001) note that Complainant's condition began before the discrimination at issue here. Other documents (P2's June 2006 reference to "recent vandalism" and the June 2007 FMLA form's reference to an "ongoing hostile work environment") refer to matters that occurred after the discrimination. Given that not all of the medical treatment that Complainant received resulted from the discrimination at issue here, we find that the Agency should restore 50 percent of the sick leave that Complainant established that she used to attend therapy appointments. The Transaction Journal-Transaction Detail document indicates that Complainant used 86 hours of sick leave to attend therapy sessions. Accordingly, we find that the Agency should restore a total of 43 hours of sick leave to Complainant for the period reflected in the Transaction Journal-Transaction Detail document (November 17, 2005, to October 25, 2010). To the extent that Complainant is asserting that she used other leave because of the Agency's discriminatory conduct, she has not identified the specific leave that she took as a direct result of the discrimination at issue here. CONCLUSION The decisions in EEOC Appeal No. 0720100019 and EEOC Request No.0520120027 are MODIFIED with respect to the award on non-pecuniary damages. We find that Complainant is entitled to $110,000.00 in non-pecuniary compensatory damages. We further find that the Agency has not complied with our order in EEOC Appeal No. 0720100019 in that it has not restored all leave due to Complainant. The Agency is directed to do so in accordance with the ORDER below. ORDER To the extent that it has not already done so, within sixty (60) days of the date this decision becomes is issued, the Agency is ORDERED to take the following remedial action: 1. The Agency shall pay Complainant $110,000.00 as an award of non-pecuniary compensatory damages. 2. The Agency shall restore a total of 43 hours of sick leave to Complainant for the period reflected in the Transaction Journal-Transaction Detail document (November 17, 2005 to October 25, 2010). The Agency is 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 of the Agency's calculation of benefits due Complainant, including evidence that the corrective action has been implemented. The Agency shall send a copy of the report and all of its enclosures to Complainant. ATTORNEY'S FEES (H0610) 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 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. 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: ______________________________ Bernadette B. Wilson's signature Bernadette B. Wilson Acting Executive Officer Executive Secretariat __6/9/17________________ 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. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ 11 0520130618