U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Herta R.,1 Complainant, v. Megan J. Brennan, Postmaster General, United States Postal Service (Southeast Area), Agency. Appeal No. 0720150020 Hearing No. 410-2013-00248X Agency No. 4G-320-0173-12 DECISION Following its February 18, 2015, final order, the Agency filed an appeal with the Equal Employment Opportunity Commission (Commission). On appeal, the Agency requests that the Commission affirm its rejection of the relief ordered by an Equal Employment Opportunity Commission Administrative Judge (AJ) following a finding of 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 MODIFIES the Agency's final order. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Letter Carrier at the Agency's facility in Savannah, Georgia. On September 11, 2012, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the basis of reprisal for prior protected EEO activity when: 1. since June 5, 2012, and continuing, management subjected her to a hostile work environment pertaining to her work performance, denied her a voice of employee survey, and issued her several pre-disciplinary interviews; 2. on August 28, 2012, management issued her a letter of warning; 3. on November 28, 2012, management denied her leave; 4. on November 28, 2012, management gave her two pre-disciplinary interviews; 5. on December 14, 2012, management issued her a letter of warning; and 6. on December 15, 2012, management issued her a notice of 7-day suspension. 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 AJ. Complainant requested a hearing and the AJ held a hearing on August 12, 2014. The AJ issued a decision on November 17, 2014, finding that Complainant established that the Agency subjected her to unlawful reprisal harassment as alleged. The AJ then held a hearing to determine Complainant's entitlement to damages, and issued a decision on October 21, 2014, awarding Complainant $300.00 in pecuniary damages, and $70,000.00 in nonpecuniary, compensatory damages. The AJ also ordered the Agency to post a notice of the finding of discrimination and provide EEO training to management. The Agency subsequently issued a final order implementing the AJ's finding that Complainant proved that she was subjected to discrimination as alleged, but rejecting the decision awarding Complainant pecuniary and nonpecuniary damages. On appeal, the Agency argues that the AJ erred in issuing pecuniary damages as Complainant failed to provide any evidence to substantiate her claimed expenses. The Agency also argues that the AJ erred in awarding Complainant $70,000.00 in nonpecuniary, compensatory damages and requests that the Commission lower the award to $10,000.00. In response, Complainant requests that we affirm the AJ's decision. 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). Initially, we note that the Agency has not appealed the finding of discrimination and therefore, we shall restate the remedies awarded by the AJ except as modified in this decision. Pursuant to section 102(a) of the Civil Rights Act of 1991, a complainant who establishes his or her claim of 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. may receive compensatory damages for past and future pecuniary losses (i.e., out-of-pocket expenses) and nonpecuniary losses (e.g., pain and suffering, mental anguish) as part of "make whole" relief. 42 U.S.C. §1981a(b)(3). In this regard, the Commission has authority to award such damages in the administrative process. See e.g. Stokes v. Department of Homeland Security, EEOC Appeal No. 0120071802 (December 10, 2008). With respect to nonpecuniary compensatory damages, these 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. 915.002 at 10 (July 14, 1992). Objective evidence in support of a claim for non-pecuniary damages claims includes statements from Complainant and others, including family members, co-workers, and medical professionals. See Compensatory and Punitive Damages Available Under Section 102 of the Civil Rights Act of 1991, EEOC Notice No. N915.002 (July 14, 1992) (Notice); Carle v. Dep't of the Navy, EEOC Appeal No. 01922369 (January 5, 1993). Nonpecuniary damages must be limited to compensation for the actual harm suffered as a result of the Agency's discriminatory actions. See Carter v. Duncan-Higgans, Ltd., 727 F.2d 1225 (D.C. Cir. 1994); Notice at 13. Additionally, the amount of the award 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 Jackson v. U.S. Postal Serv., EEOC Appeal No. 01972555 (April 15, 1999) (citing Cygnar v. City of Chicago, 865 F. 2d 827, 848 (7th Cir. 1989)). Finally, we note that in determining nonpecuniary, compensatory damages, the Commission has also taken into consideration the nature of the Agency's discriminatory actions. See Utt v. U.S. Postal Serv., EEOC Appeal No. 0720070001 (Mar. 26, 2009); Brown-Fleming v. Dep't of Justice, EEOC Appeal No. 0120082667 (Oct 28, 2010). Here, the AJ awarded Complainant $70,000.00 in nonpecuniary, compensatory damages, finding that the harassment suffered by Complainant resulted in her experiencing anxiety attacks and worsening depression. Complainant testified that management's harassing actions affected her professionally in the way her coworkers treated her, and that there were occasions when she would cry in the ladies' room while on duty. She also stated that she suffered headaches, insomnia, light headedness and dizziness, social impairment, difficulty in communicating with her spouse, increased agitation, shortness of temper, and an impairment of her thinking and ability to perform tasks. The AJ also found, however, that Complainant had a preexisting diagnosis of depression and anxiety, and that she had experienced sleep issues, migraine headaches, and suffered a heart attack prior to the incidents addressed in the instant decision. We find given Complainant's testimony that the AJ's award of $70,000.00 is supported by the evidence of record. Based upon awards in similar cases and after considering the nature, severity, and duration of Complainant's harm, we find that an award of $70,000.00 is proper and not monstrously excessive. See, e.g., Banks v. Social Security Admin., EEOC Appeal No. 0720100014 (April 27, 2012) ($65,000 in nonpecuniary, compensatory damages awarded when complainant testified that she incurred sleeplessness, damage to her social relationships, diminished pleasure in activities, decreased confidence at work, a loss of self-esteem, concern for job safety, and muscular pain and anxiety/depression as a result of the agency's actions) (citing Viers v. United States Postal Serv., EEOC Appeal No. 01A14246 (June 20, 2002) ($65,000 in nonpecuniary, compensatory damages awarded when complainant stated that she suffered fatigue, insomnia, marital strain, anxiety, loss of self-esteem, depression, and withdrawal due to harassment)). Pecuniary damages are quantifiable out-of-pocket expenses incurred as a result of the Agency's discriminatory actions. Damages for past pecuniary damages will not normally be granted without documentation such as receipts, records, bills, cancelled checks, or confirmation by other individuals of actual loss and expenses. Here, although Complainant testified at hearing that she was requesting reimbursement of her costs for mileage to doctor's appointments, medication, and postage, she failed to specify exact dollar amounts related to these costs and stated only vague approximations. She also failed to provide any receipts or other evidence establishing actual loss or expenses. As such, we find that the AJ erred in awarding her $300.00 in pecuniary damages. We shall restate the additional remedial relief which is slightly modified and we shall not restate the posting notice requirement as the record indicates the Agency already posted the notice of finding of discrimination. CONCLUSION Accordingly, we AFFIRM the AJ's decision finding reprisal discrimination and the AJ's nonpecuniary, compensatory damage award. We MODIFY the Agency's final order regarding pecuniary compensatory damages. The Agency shall comply with the ORDER herein. ORDER To the extent it has not already done so, the Agency shall take the following remedial actions: 1. Within 60 days of the date on which this decision becomes final, the Agency shall pay Complainant $70,000.00 in nonpecuniary, compensatory damages. 2. Within 180 days of the date on which this decision becomes final, the Agency shall provide training to Agency employees found to have discriminated against Complainant on their rights and responsibilities under EEO law, with particular focus on preventing unlawful retaliation. 3. The Agency shall consider taking disciplinary action against responsible Agency employees found to have discriminated against Complainant. The Agency shall report its decision to the Commission. If the Agency decides to take disciplinary action, then it shall identify the action taken. If the Agency decides not to take disciplinary action, then it shall set forth the reasons for its decision not to impose discipline. The Agency is further directed to submit a report of compliance, as provided in the statement entitled "Implementation of the Commission's Decision." 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. STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0416) The Commission may, in its discretion, reconsider the decision in this case if the Complainant or the Agency submits a written request containing arguments or evidence which tend to establish that: 1. The appellate decision involved a clearly erroneous interpretation of material fact or law; or 2. The appellate decision will have a substantial impact on the policies, practices, or operations of the Agency. Requests to reconsider, with supporting statement or brief, must be filed with the Office of Federal Operations (OFO) within thirty (30) calendar days of receipt of this decision or within twenty (20) calendar days of receipt of another party's timely request for reconsideration. See 29 C.F.R. § 1614.405; Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at Chap. 9 § VII.B (Aug. 5, 2015). All requests and arguments must be submitted to the Director, Office of Federal Operations, Equal Employment Opportunity Commission. The requests may be submitted via regular mail to P.O. Box 77960, Washington, DC 20013, or by certified mail to 131 M Street, NE, Washington, DC 20507. In the absence of a legible postmark, the request to reconsider shall be deemed timely filed if it is received by mail within five days of the expiration of the applicable filing period. See 29 C.F.R. § 1614.604. The request or opposition must also include proof of service on the other party. Failure to file within the time period will result in dismissal of your request for reconsideration as untimely, unless extenuating circumstances prevented the timely filing of the request. Any supporting documentation must be submitted with your request for reconsideration. The Commission will consider requests for reconsideration filed after the deadline only in very limited circumstances. See 29 C.F.R. § 1614.604(c). COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (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 May 6, 2016 __________________ Date 1 This case has been randomly assigned a pseudonym which will replace Complainant's name when the decision is published to non-parties and the Commission's website. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ 2 0720150020 2 0720150020