The DIGEST Of Equal Employment Opportunity Law

Volume XIV, No. 1

Office of Federal Operations

Winter Quarter 2003

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Inside

Selected EEOC Decisions on:

Article

Recent Compensatory Damage Awards

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SELECTED EEOC DECISIONS

Appellate Process

Commission Rejects New Basis of Discrimination Raised for First Time on Appeal.

Complainant alleged race, sex, age and reprisal discrimination regarding the cancellation of certain doctor's appointments and the denial of pay while she was on leave due to an on-the-job injury. She contended on appeal that, although she did not initially raise disability as a basis of her complaint, she now believed that all of the challenged personnel actions were a result of disability discrimination. Rejecting complainant's contention, the Commission held that, absent a compelling reason, a complainant may not raise a new basis of discrimination for the first time on appeal. A contrary rule, EEOC noted, would thwart the investigation process. Finding no such compelling reason, the Commission affirmed the agency's implementation of the EEOC Administrative Judge decision finding no discrimination in complainant's case. Hamilton v. United States Postal Service, EEOC Appeal No. 01A13966 (October 16, 2002).

Attorney's Fees

"Fees on Fees" Awards. In modifying the final agency decision (FAD) by increasing the award of attorney's fees, the Commission stated that, having prevailed in substantial part on his appeal, complainant's attorney was entitled to an award of attorney's fees and costs associated with the prosecution of his appeal concerning attorney's fees. EEOC directed the parties' attention to Black v. Department of the Army, EEOC Request No. 05960390 (December 9, 1998), which modified the Commission's approach to "fees on fees" awards (adopting the "reasonableness" standard with regard to preparation of fee petitions, instead of the "cap" standard). Chavarria v. Department of Veterans Affairs, EEOC Appeal No. 01A02915 (August 29, 2002).

Back Pay

Agency Errs in Calculation of Back Pay. EEOC found that the agency erred when it calculated the overtime (OT) owed complainant based upon the OT worked by a single similarly-situated employee, instead of basing the OT portion of complainant's back pay award on the average amount of OT earned by co-workers similarly situated to complainant. The Commission ordered the agency to recalculate the back pay award. Cook v. United States Postal Service, EEOC Request No. 05A21089 (November 14, 2002).

Civil Actions

Identity of Acts, Not Bases, Determines Dismissal of Administrative Complaint. The agency dismissed all three of complainant's claims on the grounds that she had filed a civil action. The Commission affirmed dismissal of two of the three claims, but reversed and remanded the remaining claim, constructive discharge, because the facts surrounding that claim were not pled in the civil action. EEOC further found that the constructive discharge claim was not inextricably intertwined with the claims raised in complainant's civil action such that it could not be severed from the civil action. The Commission found no evidence that the constructive discharge claim was considered in the disposition of her civil action, and noted that the crux of complainant's civil action was a series of incidents which occurred primarily from her hiring in 1998, while complainant resigned in 2000. Skeldon v. Department of Justice, EEOC Appeal No. 01A24128 (October 22, 2002).

Disability Law - Reassignment

Creation of New Position Not Required to Accommodate Disability. The Commission agreed with the AJ's finding that all the positions identified by complainant as possible reassignment opportunities involved creating a new position or promotion, which is not required by the Rehabilitation Act. EEOC also noted that an agency is not required to eliminate essential functions of a position as a reasonable accommodation. Dillard-Henderson v. United States Postal Service, EEOC Appeal No. 01A13488 (November 21, 2002).

Disability Law - Direct Threat

Discrimination Found: No Direct Threat. The agency acknowledged that it had denied complainant employment because of his back condition. However, both complainant's own orthopedist and the agency's physician stated that complainant could perform the duties of the Material Clerk position with low or moderate risk, respectively. There was no evidence of a significant risk of substantial harm, which is required to demonstrate that an individual is a direct threat and therefore not a qualified individual with a disability. Consequently, the denial of employment to complainant violated the Rehabilitation Act. The Commission ordered the agency to offer complainant the Material Clerk position, or a substantially equivalent position, with back pay and benefits due. Liddy v. United States Postal Service, EEOC Appeal No. 01A01542 (October 10, 2002).

Disability Law - Causation

No Nexus Between Disability and Performance Deficiencies. In denying complainant's RTR, the Commission found insufficient evidence to show that complainant had requested reasonable accommodation in connection with her alleged inability to lift more than 10 pounds. More importantly, the Commission stated, complainant failed to show how her lifting restriction was causally related to her performance deficiencies. This failure was the basis of the previous appellate decision's finding of no discrimination. Paye v. Department of Defense (Defense Commissary Agency), EEOC Request No. 05A21299 (December 6, 2002).

Disability Law - Prima Facie Case

No Prima Facie Case. The Commission agreed with the agency that complainant had failed to show that he was substantially limited in a major life activity. The medical evidence of complainant's generalized anxiety disorder only precluded him from working full time in his particular job or under his particular supervisor, which did not render him substantially limited in the major life activity of working. Regarding complainant's pulmonary condition, EEOC found insufficient evidence that he was substantially limited in the major life activity of breathing, compared to the average person in the general population. Bellantoni v. Department of the Navy, EEOC Appeal No. 01A12988 (October 3, 2002).

EEO Process

Constructive Receipt. The Commission rejected complainant's argument that, although her complaint was dismissed for untimely filing, she did not sign the original receipt of the notice of the right to file a formal complaint within 15 days of receipt of the notice. Finding that the signature on the green card bore the same last name as complainant's, EEOC noted that the Commission has consistently held that receipt of a document at an address of record, by a member of complainant's family or household of suitable age and discretion, creates a rebuttable presumption of constructive receipt. Chavez v. United States Postal Service, EEOC Request No. 05A01176 (October 9, 2002).

Election of Forum

Election of Forum Irrevocable. Complainant filed a mixed case appeal with the Merit Systems Protection Board (MSPB) regarding two claims, and subsequently filed an EEO complaint on the same claims, which the agency dismissed. In affirming the FAD, the Commission rejected complainant's argument that he had withdrawn his MSPB appeals. The Commission found controlling the fact that complainant had first elected to file his MSPB appeals before filing his EEO complaint. Guerra v. United States Postal Service, EEOC Appeal No. 01A23351 (September 26, 2002).

Equal Pay Act (EPA)

Agency Meets Affirmative Defense. In affirming the FAD, the Commission found that the agency had met its burden of establishing an affirmative defense under the EPA when the agency demonstrated that its defense was in accordance with the agency's merit system. EEOC found that complainant could not be promoted from a non- supervisory position to a supervisory position by accretion; and that such a promotion would have to be published and be subject to competition. Schoch v. Department of Commerce, EEOC Appeal No. 01A13876 (September 25, 2002).

Failure to Articulate Legitimate Reason

Discrimination Found. In finding discrimination in this nonselection case, the Commission determined that the agency's generalized statements did not adequately explain its decision not to select complainant. EEOC ordered that complainant be made whole for the discriminatory nonselection. Treese v. United States Postal Service, EEOC Appeal No. 01995884 (May 7, 2002).

Failure to Cooperate

No Failure to Cooperate. In reversing the agency's decision to dismiss a complaint for failure to cooperate, the Commission found that complainant's delay in responding to a request for an affidavit was due to his having been treated for a stroke. The Commission further determined that complainant timely notified the agency of his need for an extension, and that his behavior was not reflective of delay or contumacious behavior. Bryant v. United States Postal Service, EEOC Appeal No. 01A20891 (October 11, 2002).

Failure to State a Claim

Claims Not Cognizable.

• Claims involving internal union matters. Sinclair, Jr. v. Department of Transportation, EEOC Appeal No. 01A22501 (October 8, 2002).
• Manager's accusation that complainant was talking about her (the manager) with a coworker. Washington v. United States Postal Service, EEOC Appeal No. 01A23622 (September 24, 2002).
• Remarks or comments unaccompanied by concrete action. Smith v. United States Postal Service, EEOC Appeal No. 01A23056 (August 22, 2002).
• Claims filed by persons not employees, former employees, or applicants for employment with the defendant agency. Ruiz v. Department of the Treasury, EEOC Appeal No. 01A23920 (October 16, 2002).
• Claims of harassment that, when considered separately or together, are insufficiently severe to rise to the level of harassment. Bruno v. United States Postal Service, EEOC Appeal No. 01A03137 (October 8, 2002).
• Investigative interviews that do not result in discipline. Stowell v. United States Postal Service, EEOC Appeal No. 01A24023 (September 26, 2002).

Claims Cognizable.

• Claims involving proposed personnel actions that are part of a claim of hostile work environment. Pollard v. Department of the Air Force, EEOC Appeal No. 01A11578 (August 22, 2002).
• Denials of training and requests for reasonable accommodation. Meeks, Jr. v. Department of Energy, EEOC Appeal No. 01A21248 (August 22, 2002); see also Lundgren v. United States Postal Service, EEOC Appeal No. 01A23273 (September 10, 2002) (denial of reasonable accommodation).
• Claims where complainant, an employee of agency "A," alleged that her supervisor, an employee of agency "B," discriminatorily removed her authority and responsibilities as a Logistics Officer while both individuals were on assignment at agency "C." The Commission found that complainant had standing to file a complaint against all 3 agencies. EEOC ordered all 3 agencies joined in the matter and to jointly process the complaint. Beverly v. Department of the Navy, EEOC Appeal No. 01A23746 (October 11, 2002).
• Claims that vacancy announcements were cancelled so that the agency could avoid selecting complainant. Graham v. Department of Transportation, EEOC Appeal No. 01A23723 (September 26, 2002).

Grievances

Dismissal Proper Where Same Claim is First Raised in Negotiated Grievance Permitting Claims of Discrimination. Finding that the agency was subject to 5 U.S.C. . 7121(d) and was covered by a collective bargaining agreement which permitted claims of discrimination to be raised in the negotiated grievance process, the Commission affirmed the agency's dismissal of several of complainant's EEO claims, which had previously been raised in a grievance. The Commission noted that, under its regulations at 29 C.F.R. . 1614.301(a), an informed election of forum is not required, nor is it required that the grievance allege discrimination. So long as the individual first filed the grievance containing the same claim as that contained in the EEO complaint, that claim is subject to dismissal pursuant to 29 C.F.R. . 1614.107(a)(4). Smith v. Department of Transportation, EEOC Appeal No. 01A11821 (September 26, 2002).

Mixed Cases: Jurisdiction

Mixed Case Complaint Dismissed Jurisdictionally by MSPB is Remanded to Agency. In remanding a complaint to the agency, the Commission explained that, if an individual files a timely appeal with the MSPB from the agency's processing of a mixed case complaint and the MSPB dismisses for jurisdictional reasons, the agency must reissue a notice giving complainant the right to elect between a hearing before an EEOC AJ or an immediate final agency decision. Lunsford v. Federal Deposit Insurance Corporation, EEOC Appeal No. 01A14421 (October 16, 2002).

National Origin Discrimination

Harassment on Basis of National Origin. The Commission found that complainant, a Child Development Program Assistant, was subjected to a hostile work environment based on her national origin (Hispanic), in connection with a series of incidents, which included: being reassigned to an undesired floater position; being regularly verbally degraded by management; being falsely accused of abusing children; and being frequently told that she would never have been hired if management had known she had such a strong accent. The Commission further found that the agency failed to meet its affirmative defense of exercising its duty of reasonable care to prevent and correct promptly any harassment. In addition, the Commission applied a mixed motive analysis to the agency's issuance of a performance improvement plan (PIP) to complainant, which the Commission found was partly issued for impermissible reasons. The Commission found that the agency failed to meet its affirmative duty of showing that it would have issued the PIP even if it had not considered complainant's accent. Finally, the Commission found that the agency's reasons for reassigning complainant were a pretext for discrimination. As part of the relief ordered, the Commission remanded the issue of compensatory damages and attorney's fees and directed the agency to consider taking disciplinary action against the agency officials responsible for discriminating against and harassing complainant. Avila v. Department of the Navy, EEOC Appeal No. 01996939 (September 26, 2002).

Race and Reprisal Discrimination

Pretext Found. The Commission found that the agency's reasons for charging complainant with being absent without leave (AWOL) were a pretext for discriminatory animus toward complainant's race (Black) and in reprisal for his EEO activity. The Commission noted, for example, that the testimony of the management official (RMO1) who charged complainant with being AWOL was inconsistent and lacked specificity. The Commission also found that complainant had been given a discriminatory performance rating of "fair," by RMO1, and noted complainant's testimony that RMO1 and another agency official, RMO2, had refused to meet with him or give reasons for his low rating. As part of the relief awarded, the Commission directed the agency to: expunge complainant's record of AWOL charges; expunge his "fair" performance rating and replace it with a rating of "successful"; consider disciplinary action against RMO1 and RMO2; provide back pay; and investigate and issue a final decision on compensatory damages, attorney's fees and costs. Thompson v. Department of the Army (Walter Reed Army Medical Center), EEOC Appeal No. 01993239 (August 15, 2002).

Religious Discrimination

Direct Evidence. The agency adopted a policy prohibiting the display of all non-postal material, specifically "anything that may be construed as sexual material or of a religious matter." The agency removed personal religious items from the work area of complainant, whom the Commission found had a sincerely held religious belief (Christian). The Commission found that the ban on all religious material was a violation of Title VII. Finding direct evidence of religious discrimination, the Commission found that the policy and written notice were promulgated in response to complainant's displays of religious materials. The Commission noted that the only justification for the agency's action was that other employees were "uncomfortable" with complainant's actions. The Commission further found that the agency had failed to meet its burden of showing that it would have taken the same measures absent discrimination. As part of the remedy ordered, the Commission directed the agency to rescind its ban on the display of religious items at work stations, absent a showing of changed circumstances currently warranting a uniform ban. The Commission also ordered the agency to advise complainant of his right to seek compensatory damages. Ritchie v. United States Postal Service, EEOC Appeal No. 01995957 (August 27, 2002).

Retaliation

Hostile Work Environment. Finding that complainant was subjected to a hostile work environment on the basis of her protected EEO activity, the Commission noted that the hostility began once the agency settled the informal complaint, which had charged RMO, her immediate supervisor, with race discrimination and sexual harassment. The Commission further noted that the hostility continued for one year after RMO filed a civil action against complainant for defamation and intentional infliction of emotional distress, seeking $5,000,000 in damages in state court. Citing its interpretation of Title VII, Commission precedent, and its Compliance Manual (Retaliation), the Commission concluded that the environment created by RMO and maintained by the agency, was reasonably likely to deter others from engaging in protected activity. While EEOC did not find the agency liable for RMO's civil action, it did find the agency liable for the creation of the hostile work environment. Citing its Guidance on unlawful harassment, the Commission found that, while complainant had acted reasonably, the agency had failed to take prompt corrective action. The Commission remanded this matter for a determination by an AJ on the issues of compensatory damages and make-whole equitable relief. Quick v. Department of the Air Force, EEOC Appeal No. 01A00116 (August 13, 2002).

Settlement Agreements

Breach Found. Complainant alleged that the agency breached the provision of a settlement agreement (SA) in which it had agreed to purge complainant's personnel file of any reference to certain adverse actions taken against her. In finding a breach of the SA, the Commission held that a reasonable interpretation of the provision contemplated not merely the physical expungement of the adverse actions from complainant's personnel files, but a prohibition against verbal references to such actions, as well as attempts to rely upon them for future discipline. The Commission ordered specific performance of the SA. Miller v. Department of the Navy, EEOC Appeal No. 01A22612 (October 11, 2002).

Oral Settlement Agreement Not Binding. The Commission found a purported oral SA not binding, absent a verbal agreement reached before an EEOC AJ and a hearing transcript that documented the parties' agreement. Further, there was no evidence a proposed SA was signed by both parties, in accordance with 29 C.F.R. 1614.603. Harris v. United States Postal Service, EEOC Appeal No. 01A22673 (September 24, 2002).

Timeliness

EEO Contact Untimely. Finding complainant's initial EEO Counselor contact beyond the applicable time period of 45 days, the Commission found that complainant was on constructive notice of the time requirements due to the presence of EEO posters during the time in question. The Commission also found that complainant was not so mentally incapacitated, as she had claimed, that she could not meet the regulatory time limitations. Bowe v. United States Postal Service, EEOC Appeal No. 01A23712 (October 9, 2002).

EEO Contact Timely. In reversing the agency's finding of untimely EEO contact, the Commission found that the agency had failed to meet its burden of demonstrating that complainant was on notice of the applicable time period as a result of EEO posters on display in complainant's work facility, either by providing a copy of such posters or an affidavit describing the location of such posters during the relevant time period. Nor did the agency provide persuasive evidence that complainant was otherwise notified of the procedures for filing an EEO complaint any time during her employment with the agency. Hanratty v. Department of Defense (Defense Commissary Agency), EEOC Appeal No. 01A21331 (September 10, 2002).

Recent Compensatory Damage Awards

$125,000 Awarded for Same Sex Harassment

Complainant, a Details Clerk, filed a formal EEO complaint claiming that he was sexually harassed from 1980 to 1995 by his supervisor (S1), in violation of Title VII. Incidents of harassment included: S1 touching, grabbing, and groping complainant's genitals; explicitly detailing what S1 would like to do to complainant's genitals; explicitly detailing what S1 would like complainant to do to him with complainant's genitals; fondling complainant about the chest and shoulders; and threatening and intimidating complainant to prevent him from reporting S1's behavior.

An EEOC Administrative Judge (AJ), subsequent to a hearing, found the agency liable for the sexual harassment of complainant. The AJ awarded complainant $250,000 in compensatory damages. The agency accepted the finding of discrimination, but rejected the award as excessive and filed an appeal with the Commission.

On appeal, the agency argued that the AJ erred by considering, for purposes of a compensatory damages award, any of the harm suffered prior to November 21, 1991, the effective date of the statute which allows complainants to seek compensatory damages for violations of Title VII. The agency also contended that complainant failed to mitigate his suffering because he failed to complain in a timely manner. However, the Commission found that this argument went to the issue of liability, not emotional pain and suffering. Accordingly, the Commission stated that it would address only the first argument and modified the agency's final order for the reasons set forth below.

In its decision, the Commission cited to Carle v. Department of the Navy, EEOC Appeal No. 01922369 (January 5, 1993), wherein the Commission explained that evidence of non-pecuniary damages could include a statement by the complainant explaining how he or she was affected by the discrimination. Statements from others, including family members, friends, and health care providers could address the outward manifestations of the impact the discrimination had on complainant. The complainant could also submit documentation of medical or psychiatric treatment related to the effects of the discrimination.

The Commission found that, limiting the period of consideration to events between November 21, 1991 and 1995, the harm suffered by complainant would have been of the same serious nature given 4 years of harassment or 15 years of harassment. Complainant provided medical documentation to support the conclusion that he had been emotionally harmed. The Commission noted that complainant suffers from Post Traumatic Stress Disorder, extreme stress, nightmares, depression, sexual dysfunction, as well as fear of homosexuals or those who appear to be homosexual. Complainant further stated that his marriage failed as a direct result of harassment. Complainant's doctor listed numerous medications prescribed for complainant for the various physical effects caused by the conduct. The Commission found credible, given the severity of the harm suffered, complainant's assertion that, while he is making progress in therapy, he would probably require it for the rest of his life.

The Commission, however, reduced the AJ's award by half because it found the award to be punitive in nature, rather than remedial, based on the duration and egregious nature of the harassment instead of the actual harm sustained. Accordingly, the Commission ordered the agency to pay complainant $125,000 for the physical and mental harm complainant experienced and will continue to experience. The Commission noted that this award was similar to previous Commission awards where complainants experience significant physical and mental harm. Hughes v. Department of Veterans Affairs, EEOC Appeal No. 07A10095 (August 30, 2002).

$50,000 Awarded for Sexual Harassment

Complainant, a Supervisor of Distribution Operations, claimed she was sexually harassed by a male Manager (RMO1). Specifically, she stated that RMO1 repeatedly commented on her clothing and physical attributes, indicated that going out with him could advance her career, and became hostile when she rejected his advances. Subsequent to a hearing, an AJ found that RMO1's actions constituted sexual harassment. The AJ recommended relief to include a reimbursement totaling $365 for medical and pharmacy bills, and $10,779 in pecuniary compensatory damages. In addition, with regard to non-pecuniary damages and entitlement to back pay for complainant's one-year absence when complainant was off work due to stress and depression, the AJ noted that the evidence showed that a portion of complainant's pain and suffering was not due to RMO1's sexual harassment but to rumors concerning complainant's being involved sexually with a coworker in the parking lot. The AJ rejected complainant's assertion that RMO1 was responsible for the rumors. Accordingly, the AJ found that just half of complainant's pain and suffering was due to RMO1's discriminatory acts. Noting that the Commission has awarded $100,000 for pain and suffering in similar cases, the AJ recommended $50,000 in non-pecuniary damages, and half of any non-reimbursed salary for the year complainant was off work. The agency's final order implemented the AJ's decision, but the complainant appealed the reduced amount of damages to EEOC.

In affirming the agency's final order on appeal, the Commission found that, given the severity of the psychological harm experienced by the complainant, the duration of the harassment, and the period of time complainant was off work, as well as the fact that half of complainant's harm was not caused by the agency's discriminatory acts, the AJ's award of $50,000 in non-pecuniary compensatory damages, and one-half of any non-reimbursed salary for the year complainant was off work due to stress and depression, was reasonable. Lazard v. United States Postal Service, EEOC Appeal No. 01A02426 (August 29, 2002).

$40,000 Awarded for Harassment Based on Race and Reprisal

An AJ found discrimination based on race (African American) and reprisal when the agency harassed complainant (including a proposal to remove her, which was later reduced to a suspension). The AJ concluded that complainant, who resigned from the agency, established that she had incurred emotional and physical harm as a direct result of discrimination. Complainant was diagnosed with alopecia (hair loss due to stress), and suffered from an upset stomach and depression. Complainant testified that her relationship with her husband had suffered since she isolated herself, and that she was depressed all the time. In addition, the AJ found that complainant sought frequent counseling from her pastor. Complainant's husband corroborated her testimony. Accordingly, the AJ awarded complainant $40,000 in compensatory damages.

The agency appealed the award, arguing that the medical evidence was limited and that there was little evidence from objective third parties. The agency further contended that the award was inconsistent with awards in similar cases and that the duration of the harm was no more than a few weeks.

The Commission affirmed the AJ's award. The Commission found that the record supported a finding that complainant continued to suffer harm as a result of the discriminatory suspension for approximately two years after her resignation. Subsequent to her resignation, complainant applied for numerous jobs in the federal and private sectors but was not offered any position, since her employment records at the agency reflected her suspension. Complainant testified that her depression continued after her resignation due to her inability to pursue her career. Having found that complainant's harm lasted about two years, the Commission sustained the AJ's determination of non-pecuniary damages in the amount of $40,000, and modified the agency's order accordingly. Wiggins v. Department of the Air Force, EEOC Appeal No. 07A10072 (July 23, 2002).

$30,000 Awarded for Racial Harassment

Complainant, a Sack Sorter Clerk, filed a formal EEO complaint on June 11, 1999. In support of her complaint, complainant stated that racially derogatory remarks were made in her presence between December 1998 and February 1999. The Commission's appellate decision found: that complainant was subjected to racially derogatory remarks; that the remarks constituted harassment; and that such harassment was sufficiently severe and pervasive to alter the conditions of complainant's employment and render the conditions of complainant's work environment both abusive and hostile. The Commission also found disingenuous the agency's attempt to argue that management was unaware of the harassment. Complainant complained to her supervisor on several occasions, to a second level supervisor, to the union, and to many of her coworkers. Similar concerns had been raised by other employees. The Commission concluded that the agency knew, or should have known, of the harassment. The Commission further found that none of the employees who made the harassing comments were disciplined or reassigned. Although the appellate decision noted that the agency attempted to investigate complainant's claims, there was no evidence to support a finding that the action the agency took was prompt or sufficiently appropriate to be corrective.

In a November 1999 statement in support of her claim for non-pecuniary damages, complainant averred that she experienced severe emotional problems resulting from the racial harassment. She took leave from the agency in March 1999, and there was no evidence that she ever returned to work. Complainant first began seeing a psychiatrist in May 1999, and was still seeing him in November 1999. Complainant stated that the psychiatrist diagnosed her with Post Traumatic Stress Disorder directly caused by the racial slurs and harassment, and prescribed medication. Complainant stated that she experienced insomnia, difficulty concentrating, forgetfulness, feelings of helplessness, irritability, and a fear of being followed by those who harassed her. Complainant also stated that she had sustained significant hair loss, which a dermatologist attributed to her stress and anxiety. Complainant further asserted that she had worked continuously since she was thirteen years old, until March 1999. As a result of not working, she experienced financial trouble and incurred debt. Complainant stated that she did not have a history of emotional problems, with the exception of having seen a therapist between 1991 and 1992 for stress. The Commission noted that, at the time complainant was being racially harassed, complainant was experiencing some stress related to her son having moved in with his father and the resultant sense of loss she experienced. The Commission found the agency liable for racial harassment and awarded complainant $30,000 in non-pecuniary compensatory damages. The Commission found that, in the absence of specific evidence regarding the future duration of complainant's emotional suffering, this amount took into account the duration and severity of her past suffering. Carriker v. United States Postal Service, EEOC Appeal No. 01A04962 (May 23, 2002); request to reconsider denied, EEOC Request No. 05A20909 (August 22, 2002).

$15,000 Award for Disability Harassment

Complainant, a Sales Area Manager at the agency's base exchange, worked in the candy department until she sustained an on-the-job neck injury requiring surgery. When she returned to work, complainant was transferred to the men's department, which required less lifting than the candy department position, to accommodate her 10-pound lifting restriction. She successfully worked within her restrictions under Supervisor A, in the men's department, until Supervisor A resigned in August 1993, and was replaced by Supervisor B who, complainant claimed, immediately began creating a hostile work environment by publicly humiliating, berating, and demeaning her on numerous occasions, as well as pressuring her to exceed her medical limitations, which exacerbated her neck condition. As a result of the overall harsh treatment by Supervisor B, the lack of an accommodation for her neck disability, and a sexually offensive and suggestive remark concerning complainant and a coworker made by Supervisor B (made out of complainant's presence but in front of both co-workers and customers), complainant subsequently informed Supervisor B that she was resigning. Supervisor B immediately sent complainant to personnel to process her resignation and refused to allow her two weeks notice or to reconsider her decision.

Complainant filed a complaint claiming discrimination and harassment based on race (Black), sex (female), and disability (post-operative herniated cervical disc residuals or "neck condition"), culminating in her constructive discharge on November 3, 1993. Subsequent to a hearing, an AJ found that Supervisor B had subjected complainant to a hostile work environment and found the sexually-suggestive remark particularly offensive. The AJ denied complainant's constructive discharge claim, but awarded complainant $3,000 for "the anxiety" complainant suffered as a result of the remark. Both parties filed appeals to the Commission.

The Commission agreed with the AJ's determination that complainant had prevailed in her harassment claim based on disability and the continuous, pervasive, and severe level of harassment of complainant by Supervisor B, publicly berating and embarrassing her. The Commission also found that complainant was constructively discharged when she reasonably felt forced to resign due to the objectively intolerable working conditions created by Supervisor B, including his efforts to have complainant's resignation immediately processed and giving her no recourse to change her mind.

Regarding the question of compensatory damages, the appellate decision noted complainant's assertion that she went into the ladies room to cry after incidents of public humiliation and was especially distressed on the day of her resignation, since she had worked for the agency for thirteen years and had worked herself up from stock clerk to manager. The Commission noted that complainant made no claim that her distress interfered with her personal relationships, or that this stress was so severe that she developed somatic symptoms, such as digestive problems, or that she required counseling. With regard to the increase in her neck pain and dysfunction, the Commission noted complainant's claims that, because of the lifting which Supervisor B required her to do, she suffered two additional disc protrusions, and may need additional surgery and that she was fearful and depressed anticipating this surgery. Complainant also testified that her neck pain and dysfunction prevented her from playing with her grandchildren. While complainant presented no medical evidence to show that the claimed exacerbation of her back disorder was the result of the heavy lifting Supervisor B required her to do, the Commission found that the agency did not challenge this contention. Accordingly, the Commission concluded that, based on the nature and severity of the emotional and physical harm to complainant, and the three-month period of harassment, complainant was entitled to an award of non- pecuniary damages in the amount of $15,000. Carmon-Coleman v. Department of Defense (Army & Air Force Exchange Service), EEOC Appeal No. 07A00003 (April 17, 2002), request to reconsider denied, EEOC Request No. 05A20761 (December 4, 2002).

$10,000 Awarded for Race and Sex Discrimination

In this case, an AJ found that complainant, who had been a Deputy Logistics Management Officer with the agency's activity in Alexandria, Virginia, was discriminated against on the bases of race (Black) and sex (female) when she was issued a letter of reprimand and was reassigned to the agency's Linthicum, Maryland, center and placed in the position of Program Analyst. The AJ determined that an award of $10,000 in compensatory damages was appropriate, noting complainant's testimony that her professional reputation was harmed; that she was physically and socially isolated from her coworkers and new supervisor; and that she was "devastated" and "humiliated" at being told that the agency had lost confidence in her managerial abilities, as well as being reassigned to a position where she would sit around and do nothing, and was constantly asking for more work. In rejecting the agency's appeal, the Commission found, given the duration and severity of the harm, that the AJ's award was reasonable. Howard v. Department of Defense (Defense Security Agency), EEOC Appeal No. 07A10098 (September 30, 2002).

$8,000 Awarded for Disability Discrimination

Complainant filed six complaints in which he claimed the agency violated the Rehabilitation Act by committing various acts of discrimination against him between 1992 and 1997. The agency found discrimination in all six complaints, and the only issue on appeal was the adequacy of remedies offered by the agency. An AJ had awarded $60,000 in compensatory damages resulting from the agency's six-year treatment of complainant, causing him to suffer severe mental and emotional harm. In its final decision, the agency awarded $8,000 in non-pecuniary damages. On appeal, the Commission found that the AJ erred in identifying the period during which damages should be assessed. The Commission found the earliest incident occurred in September 1992, and not June 1991 as the AJ had stated. In addition, the Commission found that, as a consequence of the agency's failure to provide complainant with work within his medical restrictions, despite the fact that such work was available, complainant was unemployed between September 25, 1992, and February 23, 1993, and again between May 28, 1993, and July 29, 1996. Complainant claimed to have been left homeless during his second unemployment period, and to have suffered emotional trauma from the agency's discrimination. It was not until September 9, 1997, that complainant was given work within his medical restrictions. The Commission found that complainant was entitled to compensatory damages because the agency failed to make a good faith effort to provide complainant with reasonable accommodation for his disability (bilateral epicondylitis).

In determining the appropriate amount of compensatory damages to award, however, the Commission found little evidence beyond complainant's own hearing testimony and affidavits. There were no documents pertaining to his hospitalization in May 1995, or medical records that explicitly attributed complainant's reaction to the stress of being out of work. As for complainant's assertion that he was taking medication for high blood pressure, the Commission found no evidence of a written prescription or pharmacy bills. There was also no medical statement that explicitly linked complainant's high blood pressure to the stress engendered from his employment situation, or that indicated his reinstatement had any effect on his blood pressure. As to his being homeless, complainant provided no information as to the dates or circumstances of his situation. The Commission could not determine, for example, whether complainant was left to wander the streets or whether he was able to live with friends or relatives during the time that he was allegedly homeless. The only element of complainant's testimony which was corroborated was his statement regarding his credit problems. Accordingly, the Commission affirmed the agency's award of $8,000 in nonpecuniary damages. Williams v. United States Postal Service, EEOC Appeal Nos. 01992449 & 01992560 (September 26, 2002).

$5,000 Awarded for Sexual Harassment

This matter arose from a prior decision wherein the Commission found that complainant had been sexually harassed by her male coworkers. The Commission ordered the agency to investigate and issue a decision on complainant's claim for compensatory damages. The agency issued a new final decision and awarded complainant $5,000 in non-pecuniary damages. On appeal, the Commission affirmed the agency's award. In its affirmance, the Commission stated that it had considered a number of factors in reaching its conclusion, including: the nature and severity of the discrimination, and the nature and severity of complainant's mental anguish and related symptoms, and the evidence pertaining to mental anguish. The Commission determined that the evidence on this issue largely consisted of brief testimony by complainant and her family, a declaration by complainant's friend, a two-paragraph letter from complainant's doctor, and a one-sentence letter from the Clinical Director of a "Family Service Center." Finally, the Commission stated that it considered the amounts awarded in similar cases and noted that the record contained no psychiatric evaluations or evidence that complainant received any medications to treat her mental and emotional state beyond June 18, 1993. Accordingly, the Commission found that $5,000 was a proper award for the anguish suffered by complainant during the period of February 24, 1993, through June 18, 1993. Stapp v. Department of the Navy, EEOC Appeal No. 01A05634 (September 9, 2002).