0720070001_revised2
03-27-2009
Brian Utt, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Brian Utt,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 0720070001
Hearing No. 320-2003-8515X
Agency No. 4E-800-0292-02
DECISION
In conjunction with the issuance of its October 12, 2006 notice of final
action, the agency filed a timely appeal requesting that the Commission
affirm its rejection of an EEOC Administrative Judge's (AJ) finding
of discrimination in violation of Section 501 of the Rehabilitation
Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq.
The agency also requests that the Commission affirm its rejection of
the relief ordered by the AJ. Complainant also filed a timely appeal
on November 6, 2006, following his receipt of the agency's notice of
final action. On appeal, complainant requests the Commission affirm the
AJ's finding that complainant was regarded as disabled by the agency and
subjected to discrimination on the basis of that perceived disability.
Complainant also requests that the Commission increase the amount of
compensatory damages he was awarded.
ISSUE PRESENTED
The issue on appeal is whether the agency discriminated against
complainant on the basis of his disability when complainant was
terminated as a part-time flexible (PTF) city letter carrier while he
was a probationary employee.
BACKGROUND
From 1985 to 1988, complainant served in the U.S. Army as a combat
engineer. Complainant advanced from the rank of E-1 to E-4, and he was
honorably discharged. From 1990, until 1998, complainant worked for the
U.S. Department of Veterans Affairs as a nutritionist for a year and
a half and then as a housekeeper. The housekeeping position required
substantial walking, bending down, and reaching.
From 1998 to 2001, complainant worked at the agency's Denver General
Mail Facility (GMF) casing mail. Complainant's job performance was
satisfactory while casing mail. He worked the night shift and resigned
that position when the agency allegedly did not accommodate his sleep
disorder by allowing him to work the day shift.1
In spring 2002, the agency offered complainant a PTF carrier position
at its Glendale Post Office in Denver, Colorado. PTF carriers did not
have a permanent mail route, but rather cased and delivered mail for
absent (sick or vacationing) carriers assigned to particular routes.
As a prerequisite to working as a carrier, the agency administered a
physical examination which complainant passed. From August 6 - 9, 2002,
complainant successfully completed 32 hours of training at the agency's
mail carrier academy.
On August 10, 2002, complainant began his 90-day probationary period
at the agency's Glendale Post Office. Complainant received four
non-consecutive days of training by four different trainers on four
different routes (August 10, 12, 13, and 17, 2002). During training,
complainant was assigned without a trainer to deliver mail on the
street by himself. On August 20, 2002, complainant's ninth day of the
probationary period, complainant twisted his left knee while delivering
mail, and he reported this to his supervisor (S1) on August 21, 2002.
On August 22, 2002, complainant arrived at work and had difficulty
walking due to his knee injury. S1 recommended to her supervisor
(S2) that complainant's employment be terminated based on "his job
performance, unable to perform the job." S2 concurred with S1's
recommendation to discharge complainant based on his performance, and
complainant was told that he was being terminated. Complainant resigned,
involuntarily according to complainant, his carrier position prior to
the actual termination. On August 29, 2002, complainant's left knee
was completely healed.
During the two-year period prior to complainant's termination, there
were 113 Denver area probationary city carriers hired. Of the six
carriers who were separated from employment during this time, only
complainant had a job injury during his employment with the agency.
Complainant was terminated after his tenth day of employment and
the other five probationary city carriers were terminated after the
following number of days of employment at the agency: 33, 37, 44, 64,
and 67. The two probationary city carriers who were terminated for poor
performance were terminated after 64 and 67 days.
Complainant filed an EEO complaint dated October 30, 2002, alleging that
he was discriminated against on the basis of his perceived disability
(knee injury) when the agency terminated complainant's employment as
a part-time flexible city letter carrier while he was a probationary
employee.2
At the conclusion of the investigation, complainant timely requested a
hearing which the AJ held on April 12 and April 18, 2005. On September 7,
2006, the AJ issued a decision finding the agency discriminated against
complainant based on his perceived disability when it terminated him
from employment.
In addressing whether complainant was a qualified individual with a
disability, the AJ found that S1 regarded complainant's knee injury as
an impairment that prevented him from performing his mail carrier job.
Specifically, the AJ found that "[S1] believed that the knee injury
precluded [complainant] from walking a mail route including stair
climbing, kneeling, lifting, and knee bending. She also believed that
he would not recover from the knee injury." The AJ noted the agency's
reason for terminating complainant, that he would not recover from his
perceived serious knee problem, was not unique to the carrier position
that complainant held and would exclude him from a class of jobs or a
broad range of jobs in various classes. Thus, the AJ found the agency
regarded complainant as substantially limited in the major life activity
of working in a class of jobs that involve manual labor. The AJ found
the agency did not rebut this conclusion by S1's statement that there were
"probably a lot of jobs he is capable of doing."
Additionally, the AJ found that complainant met all of the experience
and educational requirements for the PTF carrier position. The AJ noted
complainant passed the required physical examination and completed the
requisite training at the mail carrier academy. The AJ recognized
complainant previously held a position with the agency where he
demonstrated proficiency in casing mail for a period of three years.
The AJ noted that complainant proficiently performed the essential
functions of the carrier position for the 10 days he worked at the
Glendale post office. Further, the AJ found that the knee injury did
not prevent complainant from performing the essential functions of the
carrier job since it was a temporary, non-severe injury that healed
in a short period of time. Finally, the AJ found that complainant's
"memory and coordination are normal or above and did not prevent his
performance of mail casing or delivery, i.e., the essential functions
of the carrier position." Thus, the AJ concluded complainant was a
qualified individual with a disability.
Addressing the agency's asserted reasons for terminating complainant's
employment, the AJ rejected the agency's contention that complainant's
job performance was unacceptably deficient during his first ten
days of his probationary period. The AJ noted that S1 testified
that complainant was deficient in the casing and delivery of mail,
arrived late at the station after delivering his mail, did not case
his mail with addresses all in the same direction, dropped his mail,
and failed to take a shortcut on one delivery route which would have
saved time. S1 testified that she counseled complainant several times
concerning his performance deficiencies, stating that she explained the
importance of casing mail with all the addresses in the same direction
and instructed complainant on how to punch the clock rings correctly.
Complainant disputed much of this testimony, asserting that his casing
and delivery abilities fell within acceptable timeframes and testifying
that he was never counseled by S1 on his casing or delivery skills.
Complainant acknowledged that on one occasion he dropped his mail,
but he stated that this was not unusual.
The AJ found S1's testimony on complainant's purported casing and mail
delivery problems inconsistent and contradictory and, on this basis,
gave it little credence or weight. For example, the AJ noted that S1
testified that the first day casing mail on a new route was difficult and
that it took three days to become familiar with a mail route. S1 stated
that she would assign an experienced carrier to help a carrier who had not
previously cased a particular route. However, on August 14, 2002, instead
of following this practice, S1 assigned complainant to case a route
for the first time by himself. Despite the departure from the agency's
practice, the AJ found complainant cased that route within acceptable
time limits. The AJ noted that on other days S1 provided assistance to
complainant on his first day casing a route and complainant completed
the casing on these days within acceptable time limits. Additionally,
the AJ noted that initially S1 testified that complainant took three
hours to deliver two blocks of mail on a daily basis and then later
testified that only on two days of his employment with the agency did he
take three hours to deliver two blocks of mail. The AJ also noted that
in an August 30, 2002 electronic mail message, created by S1 to support
her justification for firing complainant, S1 notes several occasions
where she gave complainant corrective discussions about correct use
of the time clock; however, there is no mention of any delivering or
casing deficiencies. The AJ found it more likely than not that S1 did
not counsel complainant about his casing or delivery skills.
The AJ rejected the agency's assertion that complainant was not assigned
to deliver mail by himself on August 10, 2002, his first day of training.
Complainant testified that he was sent to deliver mail by himself after
only a few hours of training on August 10, 2002. Trainer 1, who trained
complainant on August 10, 2002, corroborated complainant's testimony that
he was sent to the street by himself to deliver mail that day. The AJ
noted that in opposition, the agency relied on S1's bare denial that
complainant delivered mail alone, and on the fact that the clock rings
show no entry of complainant delivering mail by himself on that date.
However, the AJ did not afford the clock rings substantial evidentiary
weight since the agency had argued inconsistently regarding the accuracy
of the time clock records. Specifically, the AJ notes the agency
argued on one hand that the records are an accurate business record
kept by the agency while on the other hand, it argued that complainant
repeatedly failed to make time clock entries reflecting on which routes
he delivered mail. The AJ found by preponderant evidence that complainant
delivered a mail route by himself on August 10, 2002.
The AJ further found that S1 knew or should have known that complainant's
on-the-job training was inadequate. S1 testified that it was standard
operating procedure to provide new carriers three consecutive full
days of mail casing and delivery training with a certified trainer.
On complainant's first two days of training (August 10 and 12, 2002),
the agency assigned complainant without a trainer to deliver mail on
the street by himself. On his third day of training (August 13), the
agency assigned complainant to train with a carrier who had no training
experience. The AJ noted that after a union official complained to S1
about complainant's inadequate training, S1 assigned complainant to train
with a carrier (August 17) who had no training experience. The AJ found
despite the agency's practice of giving trainees hands-on experience
in casing and delivering during training, the carrier assigned to train
complainant on August 17, 2002, did not allow complainant to case mail.
The AJ stated that, given this inadequate training and the short time
that complainant had been on the job, S1 could not have concluded in
good faith that complainant's performance was unacceptably substandard.
The AJ found direct evidence that complainant's termination was related
to his perceived knee impairment. Specifically, the AJ noted that S1
informed complainant that if he was injured and it prevented him from
working, he would be subject to a serious personnel action, specifically,
he "would be let go." The AJ noted that when complainant reported to
work on August 22, 2002, and had difficulty walking due to a temporary,
non-severe knee injury, S1 erroneously believed the injury was severe
and permanent. The AJ found that based on S1's assumption about the knee
injury, she recommended, and her supervisor concurred, that complainant
should be immediately fired. The AJ noted that "[b]ut for the knee
injury, [S1] would not have terminated [c]omplainant's employment on
August 22." The AJ recognized that although S1 did not testify about
her perception of his knee injury until April 2005, almost 2 1/2 years
after complainant's termination, her statements still constituted direct
evidence of discrimination.
The AJ also rejected as not credible the agency's claim that complainant's
termination was based in part on his failure to timely report his
knee injury. The AJ noted S2 stated that failure to timely report the
injury was a ground for termination. However, the AJ noted S2 accepted
S1's recommendation to fire complainant before he found out about his
knee injury. Even assuming the failure to timely report the knee injury
was considered in the decision to terminate complainant, the AJ found
complainant complied with all agency rules and procedures regarding the
timely reporting of on the job injuries. Likewise, the AJ rejected the
agency's argument that because complainant could not work on August 22,
the agency could not assess whether complainant could perform the duties
of the carrier position. The AJ found no distinction between firing
complainant because of his knee impairment and firing him because he
could not be observed performing his job because of his knee impairment.
However, to the extent that observing complainant working is valid,
the AJ found it significant that S1 did not inquire into the prognosis
or possible duration of complainant's injury.
Thus, the AJ concluded complainant was fired because of his knee
impairment and the agency did not show by preponderant evidence that it
would have terminated him for reasons other than his knee impairment.
The AJ concluded that complainant was fired because of his knee impairment
and the agency did not show by a preponderance of the evidence that it
would have terminated him for reasons other than his knee impairment.
The AJ noted that S1 admitted in her testimony that complainant would
not have been fired for these performance deficiencies, alone, because
complainant's performance deficiencies had not yet risen to a level of
concern that would warrant discharge. The AJ also found that S1 had
informed complainant that if he was injured during his first 90 days
of work and if any such injury prevented him from working, he would
probably be subject to removal. S1 testified that when complainant
reported to work on August 22, 2002, and she saw that he had difficulty
walking due to the knee injury he experienced on August 20, 2002, she
concluded (erroneously, as it turns out) that complainant's knee injury
was severe and permanent and that it would prevent him from performing
his assigned job duties. S1 testified that although she told S2 that
complainant should be discharged based on his job performance, S1 would
not, in fact, have made this recommendation based on complainant's alleged
performance deficiencies, alone, and that, but for the knee injury, she
would not have recommended the agency terminate complainant's employment
on August 22.3 Finding S1's testimony credible on this point, the AJ
found that S1 recommended to S2 that the agency terminate complainant's
employment immediately because of S1's erroneous assumptions about the
severity and permanency of complainant's knee injury, and that these
erroneous assumptions amounted to a perception that complainant was
disabled within the meaning of the Rehabilitation Act.
Thus, the AJ did not find credible the agency's claim that complainant
was terminated because of his poor performance as a carrier. Rather,
the AJ concluded that S1's comment that she would not have terminated
complainant, but for his knee injury, constituted direct evidence of
discrimination based on disability.
The AJ found complainant was entitled to reinstatement to the carrier
position without serving a probationary period, back pay, compensatory
damages in the amount of $25,000.00, and attorney's fees and costs in
the amount of $51,672.17. Further, the AJ stated that if the agency
appeals his decision, the agency shall comply with the provisions of 29
C.F.R. �1614.505 pending the outcome of the agency appeal.
The agency subsequently issued a notice of final action rejecting
the AJ's finding that complainant proved that he was subjected to
discrimination as alleged. In conjunction with the issuance of
its final action, the agency filed an appeal with the Commission.
As an attachment to its brief, the agency provided interim relief to
complainant by offering him a temporary or conditional restoration to
duty as a PTF Letter Carrier at an installation of complainant's choice.
The agency notified complainant that if he is interested in the offer,
he should contact the agency's designated representative to obtain
a list of available positions. The agency informed complainant he
should notify the agency representative in writing, within 30 days
from when he receives the agency's brief, whether he accepts the offer.
Complainant filed an appeal after he received the agency's final action
declining to implement the AJ's decision.
CONTENTIONS ON APPEAL
On appeal, the agency argues it did not regard complainant as disabled.
Specifically, the agency states that S1 believed complainant was unable to
perform the duties of letter carrier, but did not believe he was unable
to perform a class or broad range of jobs. The agency states that the
record shows that the letter carrier job was physically stressful and
claims that S1's testimony regarding walking, stair climbing, kneeling,
lifting and knee bending, related solely to the letter carrier job.
The agency noted that S1 testified that "[t]here was probably a lot of
jobs he is capable of doing," which it states implies that she did not
perceive complainant as unable to perform a class or broad range of jobs.
Further, the agency states the AJ only found complainant substantially
limited in working and not walking or any other major life activity.
The agency claims the AJ erred in finding that complainant's training was
"grossly substandard." Specifically, in reaching the conclusion that
the training was substandard, the AJ determined that: (1) complainant
did not receive training while on the street during his first day on
the job (rather than relying on the clock rings which showed complainant
worked the same route as Trainer 1); and (2) complainant did not receive
three consecutive days of training. However, the agency claims that
complainant did receive training on the "street duties" as evidenced
by the clock rings and the "Three Day New Employee Training Form"
and Trainer 1's testimony that she made check marks on this form.
The agency claims this is a case where complainant's performance was
less than satisfactory during his probationary period and argues that
he has not shown that the agency regarded him as disabled.
The agency states that even if complainant is entitled to reinstatement,
he should still be required to complete his probationary period.
The agency states that if the AJ's decision is upheld and complainant is
not required to serve a probationary period, then he would be afforded
a windfall since there is no way to know if he would have successfully
completed his probationary period.4
Moreover, the agency states that it satisfied its obligation to provide
interim relief to complainant. Specifically, the agency noted it offered
complainant, in writing, temporary or conditional restoration to duty in
the form of an available PTF letter carrier position at the installation
of complainant's choice and has notified him that it will pay interest
on any amounts owed, but delayed. The agency notified complainant
that if he is interested in accepting this offer, he should contact
the agency's representative to obtain a list of available positions.
Complainant was told to notify the agency's representative in writing,
within 30 days from receipt, whether he accepts the offer. Further, the
agency states that service under the temporary or conditional restoration
provision will be credited towards the completion of complainant's
probationary period only if the Commission upholds the AJ's decision.
The agency specifies that this service shall not be credited toward the
completion of complainant's probationary period if the Commission does
not uphold the AJ's decision.
On appeal, complainant argues that substantial evidence supports the AJ's
finding that the agency regarded complainant as substantially limited
in the major life activities of walking and performing manual tasks
sufficient to preclude him from working in a class or broad range of jobs.
Complainant also states that the timing of the termination shows that the
agency was motivated to terminate him based on his perceived condition
and not on poor performance.
Alternatively, complainant argues that if the AJ erred in finding that
the agency perceived complainant to be limited in the major life activity
of work, the AJ's decision was still correct in finding that the agency
regarded complainant as substantially limited in the major life activity
of walking. Complainant also argues that the agency regarded complainant
as substantially limited in the major life activities of learning and
performing manual tasks.
Moreover, complainant addresses the agency's argument that the AJ
improperly found that complainant should be reinstated without having
to serve a probationary period. Specifically, complainant states that
where a probationary employee is terminated, it is appropriate to credit
the employee for time previously served and to begin the probationary
period from that point in time.
Finally, complainant claims that the award of compensatory damages should
be increased. Complainant states that in order to meet living expenses
he: sold his 1985 Blazer for $1,100.00; sold his four-wheel recreational
vehicle; sold a Yamaha Blaster, for $1,500.00; borrowed $3,000.00
from this aunt; and borrowed between $5,000.00 and $8,000.00 from his
76-year-old mother. Further, complainant states that he suffered from
stress and low self-esteem as a result of the termination, had to sell
his property, and secure loans. Complainant also notes he had trouble
sleeping, gained about 15 pounds, and curtailed recreational activities
such as playing basketball, fishing, and driving his recreational vehicle
in order to look for employment. Complainant states the cases cited in
the AJ's decision all indicate damage amounts greater than that awarded
by the AJ.
In response to complainant's appeal, the agency notes that both
complainant and the agency agree that if reinstated, complainant should
be required to complete his 90-day probationary period and thus, states
the AJ erroneously ordered the agency to reinstate complainant without
having to complete a probationary period.
With regard to complainant's claim that the compensatory damages awarded
by the AJ should be increased, the agency argues the AJ was in the best
position to weigh the applicable evidence and testimony. Moreover, the
agency notes that although the cases cited by the AJ involved greater
awards, they also involved aggravating factors not at issue in the
present case. Further, the agency states that the Commission has held
that absent expert testimony or medical records, non-pecuniary losses
should rarely be awarded.
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, � VI.B. (November 9, 1999).
An individual bringing a claim of discrimination on the basis of
disability has the burden to show that he is an individual with
a disability. Ceralde v. United States Postal Service, EEOC Appeal
No. 07A00038 (August 2, 2001), request for reconsid. denied, EEOC Request
No. 05A11133 (January 24, 2002). An individual with a disability
is defined as one who (1) has a physical or mental impairment that
substantially limits one or more major life activities, (2) has a
record of such an impairment, or (3) is regarded as having such an
impairment. 29 C.F.R. �1630.2(g). An impairment is substantially
limiting when an individual is unable to perform a major life activity
that the average person in the general population can perform or is
significantly restricted as to the condition, manner or duration under
which he can perform a particular major life activity as compared to
the condition, manner or duration under which the average person in
the general population can perform that same major life activity.
29 C.F.R. � 1630.2(j). Major life activities include working.
29 C.F.R. � 1630.2(i).
We find that the AJ properly determined that the agency regarded
complainant as substantially limited in the major life activity of
working. An agency regards an individual as substantially limited
in a major life activity when it concludes that the individual has
an impairment that significantly restricts him or her from currently
performing a major life activity, even though the individual's impairment
does not in fact substantially limit his/her ability to perform a major
life activity; the impairment is only substantially limiting only as a
result of the attitude of others; or the individual has no impairment.
29 C.F.R. � 1630.2(1). To be regarded as substantially limited in
the major life activity of working, an individual must be regarded
as having an impairment that significantly restricts him or her from
currently performing a class of jobs or a broad range of jobs in various
classes. 29 C.F.R. �1630.2(j)(3).
In the present case, S1 testified that after complainant injured his knee,
she did not think complainant could do the physical requirements of the
mail carrier job. Specifically, S1 stated that when complainant came
in on August 22, 2002, he could not walk and she believed complainant
could not do the stair climbing, knee bending, climbing, lifting,
and kneeling requirements of the mail carrier job. S1 testified that
she did not think complainant would recover from the knee problem and
believed he was at risk for future knee injury. S1 did not make any
inquiries about the limitations complainant might have or how long
those limitations might last. We find the criteria used by the agency
for terminating complainant's employment - that he could not do stair
climbing, kneeling, lifting, knee bending and perform manual tasks -
does not apply to some unique aspect of a letter carrier job. Thus, we
find the agency not only regarded him as being unable to perform the job
he held as a mail carrier at the agency, but also regarded him as being
significantly restricted from performing jobs requiring manual labor.
See Brown v. United States Postal Service, EEOC Appeal No. 01A45134
(June 1, 2006); EEOC Compliance Manual, Volume 2, EEOC Order No. 915.002
(March 14, 1995), section 902 at 54-55.
Complainant must next show that he is a "qualified" individual with
a disability. 29 C.F.R. �1630.2(m). A "qualified" individual with
a disability is an individual who satisfies the requisite skill,
experience, education, and other job-related requirements of the
employment position and who, with or without reasonable accommodation,
can perform the essential functions of such position. Id. The record
in this case indicates that complainant met all the experience and
education requirements for the PTF letter carrier position. Complainant
successfully passed the requisite physical examination and completed
32 hours of training at the mail carrier academy. Further, the record
indicates complainant successfully performed the duties of the position
during the time he held the position such as casing and delivering mail.
Thus, we find complainant was a qualified individual with a disability.
Complainant has also established that he was subjected to an adverse
action because of his disability. He established an "adverse action" in
that he was terminated (his involuntary resignation) from the PTF carrier
position on day ten of his 90-day probationary period. He established
that this was "because of" his perceived disability through the direct
evidence of S1's testimony that, but for complainant's knee injury,
she would not have recommended his termination based on his alleged
performance deficiencies. This direct evidence is buttressed by several
pieces of additional evidence. First, the undisputed evidence shows that
the other five individuals who were terminated during their probationary
period were discharged after substantially more time on the job, and the
only two probationary employees who were discharged for alleged inadequate
job performance were discharged after working more than sixty days of
their 90-day probationary period (in contrast to complainant's ten days
on the job). This buttresses S1's testimony that complainant would not
have been terminated for job performance deficiencies, alone, based on
his first ten days of work. Second, substantial evidence supports the
AJ's finding that S1 informed complainant that if he was injured during
his first 90 days of work and if it prevented him from working, he would
probably be subject to removal. This buttresses S1's admission that when
she recommended to S2 that complainant's employment be terminated based on
his performance, she was actually motivated by her erroneous belief that
complainant's knee injury prevented him from performing his job duties.
Once the Commission finds that an impermissible factor played a motivating
part in the agency's employment decision, an agency may seek to limit
the remedies available to a complainant by proving, by a preponderance
of the evidence, that it would have made the same decision even if it
had not considered the impermissible factor. See 42. U.S.C. � 12117(a)
(adopting various enforcement provisions of Title VII, including 42
U.S.C. 2000e-5(g)(2)(B)).
Although the agency argued here that it would have taken the same action
even apart from S1's belief that complainant's knee injury was severe
and permanent, we find the agency's contention unpersuasive. During the
hearing S2 stated that he considered two criteria equally in reaching
his decision to terminate complainant: complainant's failure to timely
report his on-the-job injury and S1's recommendations about complainant's
performance. S2 testified that on August 22, 2002, he met briefly with
S1 who recommended complainant's termination based on his performance.
S2 stated that he concurred with S1's recommendation prior to speaking
with complainant. According to his testimony, after meeting with S1, S2
then spoke to complainant regarding his injury. S2 stated that he did
not know complainant was injured on the job until after he spoke with
complainant on August 22, 2002. Thus, we find that S2 could not have
relied on complainant's failure to report the on-the-job injury as a basis
for complainant's termination since he stated he did not know the injury
occurred on the job until after he decided to terminate complainant.
Furthermore, we reject the agency's contention that complainant would
have been terminated anyway as a result of his failure to timely report
the knee injury in accordance with agency policy. Complainant stated
that when he twisted his knee on August 20, 2002, it did not initially
bother him. He states that when it began to bother him, he promptly
reported it to S1 on August 21, 2002. The agency failed to show that
complainant was not in compliance with the agency's rules and procedures
regarding the timely reporting of on-the-job injuries. Moreover,
the record reveals that S1 did not inquire about the circumstances
surrounding complainant's knee pain, but rather, incorrectly assumed
the injury was not job related.
The agency also asserts that complainant was terminated because of
his poor performance. The agency states complainant was deficient in
delivery time, improperly cased mail, dropped his mail, failed to take
shortcuts, and failed to properly use the clock rings. With regard
to casing, the record shows that of the six days complainant worked
but was not in training, complainant did not case on two of those days
(August 14 and 15, 2002). Further, we note that on August 17, 2002,
his last day of training, the carrier assigned to train complainant that
day did not permit him to case mail, despite the agency's practice of
giving trainees hands-on experience casing and delivering while being
evaluated by their trainers. The record reveals that on the four days
complainant was not in training and performed casing, his casing fell
within acceptable standards (on two days complainant had help with casing
and on two days he cased with no help). Moreover, we note in an August
30, 2002 electronic mail message justifying the reasons for complainant's
termination, S1 did not mention casing as a problem for complainant.
The record reveals that complainant did not properly punch the time clock
to indicate the routes he worked and was counseled by S1 regarding this
practice. Specifically, the record reveals that S1 spoke to complainant
on August 12, 2002, about correctly punching the time clock. On the
eight days following the August 12, 2002 discussion by S1 regarding
the time clock, S1 noted that complainant had problems on six of those
days and did better on one day and did a good job on the clock rings on
another day. The record reveals that complainant's training on the time
clock was minimal. Upon a review of the record, we do not find that the
agency established that failure to properly punch the time clock was an
independent basis for complainant's termination.
The record reveals that complainant arrived late at the station after
delivering his mail, and sometimes had help from other carriers to
complete the delivery of his mail. The record shows that despite
the agency's standard operating procedure to provide new carriers
three consecutive full days of mail casing and delivery training
with a certified trainer, on complainant's first two days of training
(August 10 and 12, 2002), he was not afforded a full day of training on
either of these days and was, in fact, assigned to deliver mail on the
street himself. Additionally, on two of the days that complainant was
trained (August 13 and 17, 2002), he was assigned trainers who had no
training experience. While we note on one occasion complainant dropped
his mail, the record reveals that it was not unusual for a carrier to
occasionally drop their mail. Based on the inadequate training afforded
complainant, the lack of corrective discussions by the agency on purported
performance problems, and the fact that complainant worked only three days
following his last day of training, we find S1 could not in good faith
have concluded that complainant's performance warranted termination.
Moreover, in her testimony, S1 stated that if complainant did not
have the knee problem he would not have been fired on August 22, 2002.
The record contains no evidence addressing how much longer complainant
might have retained his employment with the agency if he had not been
discharged on August 22, 2002. Thus, we find that the agency did not
demonstrate, by a preponderance of the evidence, that it would have
terminated complainant regardless of his knee injury on August 22, 2002.
Compensatory Damages
To receive an award of compensatory damages, complainant must demonstrate
that he 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. See Rivera v. Department of the Navy, EEOC Appeal
No. 01934157 (July 22, 1994), request for reconsideration denied, EEOC
Request No. 05940927 (December 11, 1995); Compensatory and Punitive
Damages Available Under Section 102 of the Civil Rights Act of 1991,
EEOC Notice No. N 915.002 at 11-12, 14 (July 14, 1992).
An award of compensatory damages for non-pecuniary losses, including
emotional harm, should reflect the extent to which the respondent directly
or proximately caused the harm, and the extent to which other factors
also caused the harm. The Commission has held that evidence from a
health care provider is not a mandatory prerequisite for recovery of
compensatory damages. See Carpenter v. Department of Agriculture, EEOC
Appeal No. 01945652 (July 17, 1995). The absence of supporting evidence
may affect the amount of damages deemed appropriate in specific cases.
See Lawrence v. United States Postal Service, EEOC Appeal No. 01952288
(April 18, 1996).
After a careful review of the record, considering the nature of the
discriminatory actions and the nature of the harm to complainant, we
find the award of $25,000.00 in non-pecuniary compensatory damages by
the AJ was appropriate. We note that complainant testified that as
a result of the termination he suffered from stress, low self-esteem,
difficulty sleeping and gained 15 pounds. Complainant also testified that
he curtailed his recreational activities such as, playing basketball,
fishing and driving his recreational vehicles. Complainant avers that
as a result of the financial troubles stemming from his termination,
he had to sell some personal property: his 1985 Blazer for about
$1,100.00 and his four-wheel recreational vehicle, a Yamaha Blaster,
for $1,500.00. Complainant states that he also borrowed $3,000.00 from
his aunt and between $5,000.00 and $8,000.00 from his 76-year-old mother.
Moreover, the record reveals that following his termination, complainant
spent considerable time trying to secure another job. A year after
the termination, complainant obtained a new job at the Department of
Veterans Affairs.
The Commission has awarded similar compensatory damages in a case
similar to complainant's case. See Marriott v. United States Postal
Service, EEOC Appeal No. 07A30073 (after a finding that complainant
was terminated due to his disability, $25,000.00 in non-pecuniary,
compensatory damages awarded based on complainant's own testimony that
the agency's discriminatory actions sent him into "full blown psychosis"
and based on contemporaneous psychiatric records that revealed discussions
he had with his physician concerning his termination by the agency).
Further, the amount of the award meets the goals of not being "monstrously
excessive" standing alone, not being the product of passion or prejudice,
and being consistent with the amount awarded in similar cases.5
Probationary Period
On appeal, the agency claims the AJ erred by ordering complainant
reinstated without having to serve the remainder of his original
probationary period. We agree with the agency. Since complainant
was wrongfully terminated after ten days of probationary employment,
we find that complainant is required to complete the remaining original
probationary period of employment. Wells v. United States Postal Service,
EEOC Appeal No. 01880979 (May 9, 1988) (citing Dorsett v. United States
Postal Service, EEOC Appeal No. 01830120 (December 13, 1983)). Such a
remedy does not go beyond the make whole relief required by Albemarle
Paper Co. v. Moody, 422 U.S. at 418-23.
CONCLUSION
We REVERSE the agency's finding that complainant was not subjected to
discrimination based on disability when he was terminated and we ORDER
the agency to provide the relief specified herein.
ORDER
To the extent it has not already done so, the agency shall take the
following actions:
1. Within 60 days of the date this decision becomes final, the agency
shall offer complainant in writing, the position of part time flexible
city carrier, or a position of equal grade, pay, duties, responsibilities,
and benefits, at the installation of complainant's choice. Complainant
shall notify the agency within 30 days from the date he receives the
offer, whether he will accept the offer. If complainant accepts the
offer, he must complete the remaining portion of the original probationary
period. The agency shall implement complainant's chosen option within
two pay periods after receiving complainant's notification accepting
the offer. The position shall be retroactive to the date complainant
started his employment with the agency, i.e., August 10, 2002.
2. Within 60 days of the date this decision becomes final, the agency
shall determine the appropriate amount of back pay, with interest,
and other benefits due complainant, pursuant to 29 C.F.R. � 1614.501.
Complainant shall cooperate in the agency's efforts to compute the amount
of back pay and benefits due, and shall provide all relevant information
requested by the agency. If there is a dispute regarding the exact
amount of back pay and/or benefits, the agency shall issue a check to
complainant for the undisputed amount within 60 days of the date the
agency determines the amount it believes to be due. Complainant may
petition for enforcement or clarification of the amount in dispute.
The petition for clarification or enforcement must be filed with the
Compliance Officer, at the address referenced in the statement entitled
"Implementation of the Commission's Decision."
3. Within 60 days of the date this decision becomes final, the agency
shall expunge from all official and unofficial files all documents
referencing complainant's August 22, 2002 termination (involuntary
resignation).
4. Within 60 days of the date this decision becomes final, the agency
shall pay complainant $25,000.00 in non-pecuniary, compensatory damages.
5. Within 60 days of the date this decision becomes final, the agency
shall pay complainant the sum of $51,672.17 for attorney's fees and
costs.
6. Within 180 days of the date this decision becomes final, the agency
shall provide eight hours of live, focused training to S1 and S2
regarding their obligations under the Rehabilitation Act. If either
S1 or S2 is no longer an employee of the federal government, the agency
shall furnish documentation of his/her departure date(s).
7. Within 180 days of the date this decision becomes final, the agency
shall consider taking appropriate disciplinary action against S1 and
S2. The agency shall report its decision to the Compliance Officer,
referenced herein. If the agency decides to take disciplinary action
it shall identify the action taken. If the agency decides not to take
disciplinary action, it shall set forth the reason(s) for its decision
not to impose discipline. If either S1 or S2 have left the agency's
employment, then the agency shall furnish documentation of their departure
date(s).
The agency is further directed to submit a report of compliance, as
provided in the statement entitled "Implementation of the Commission's
Decision."
INTERIM RELIEF (F0900)
When the agency requests reconsideration and the case involves a
finding of discrimination regarding a removal, separation, or suspension
continuing beyond the date of the request for reconsideration, and when
the decision orders retroactive restoration, the agency shall comply with
the decision to the extent of the temporary or conditional restoration
of the complainant to duty status in the position specified by the
Commission, pending the outcome of the agency request for reconsideration.
See 29 C.F.R. � 1614.502(b).
The agency shall notify the Commission and the complainant in writing at
the same time it requests reconsideration that the relief it provides
is temporary or conditional and, if applicable, that it will delay
the payment of any amounts owed but will pay interest from the date
of the original appellate decision until payment is made. Failure of
the agency to provide notification will result in the dismissal of the
agency's request. See 29 C.F.R. � 1614.502(b)(3).
POSTING ORDER (G0900)
The agency is ordered to post at its Glendale Post Office in Denver,
Colorado copies of the attached notice. Copies of the notice, after
being signed by the agency's duly authorized representative, shall
be posted by the agency within thirty (30) calendar days of the date
this decision becomes final, and shall remain posted for sixty (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 at the address cited in the paragraph
entitled "Implementation of the Commission's Decision," within ten (10)
calendar days of the expiration of the posting period.
ATTORNEY'S FEES (H0900)
If complainant has been represented by an attorney (as defined by
29 C.F.R. � 1614.501(e)(1)(iii)), he/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 (K1208)
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 (M1208)
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), 9-18 (November 9, 1999). All requests
and arguments must be submitted to the Director, Office of Federal
Operations, Equal Employment Opportunity Commission, P.O. Box 77960,
Washington, DC 20013. 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 (R0408)
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 (Z1008)
If you decide to file a civil action, and if you do not have or cannot
afford the services of an attorney, you may request from the Court that
the Court appoint an attorney to represent you and that the Court also
permit you to file the action without payment of fees, costs, or other
security. See Title VII of the Civil Rights Act of 1964, as amended,
42 U.S.C. � 2000e et seq.; the Rehabilitation Act of 1973, as amended,
29 U.S.C. �� 791, 794(c). The grant or denial of the request is within
the sole discretion of the Court. Filing a request for an attorney with
the Court does not extend your time in which to file a civil action.
Both the
request and the civil action must be filed within the time limits as
stated in the paragraph above ("Right to File A Civil Action").
FOR THE COMMISSION:
______________________________
Stephen Llewellyn
Executive Officer
Executive Secretariat
3/27/09
__________________
Date
1 This resignation and alleged failure to accommodate are not issues in
the instant complaint.
2 Although complainant originally included retaliation as a basis
for his complaint, he later withdrew the basis of retaliation at the
hearing. Additionally, although the agency accepted for investigation
the additional claim that on August 20, 2002, complainant was not given
medical help or paperwork for an on-the-job injury, this issue was never
specifically addressed by the AJ. On appeal neither party claims that
the AJ erred by not addressing this additional claim and, therefore,
we do not address this claim here.
3 Nothing in the record indicates that S1 mentioned complainant's knee
injury to S2 when she recommended that the agency discharge complainant
based on his performance, nor is there any indication that S2 knew the
extent of complainant's knee injury, or that he was motivated in any way
by complainant's knee injury, when he approved S1's recommendation that
complainant be discharged based on complainant's performance during his
first nine days of his probationary period.
4 Although the agency states complainant completed 12 days of his
probationary period, the record reveals that complainant completed 10
days of the 90-day probationary period.
5 As neither party challenges the AJ's award of attorney's fees and costs,
we will not address the AJ's award of attorney's fees and costs in this
decision, except to order the agency to comply with the AJ's award of
attorney's fees and costs.
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