07A30053
02-10-2004
Charles A. Offley, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Charles A. Offley v. United States Postal Service
07A30053
02-10-04
.
Charles A. Offley,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 07A30053
Agency No. 4B-020-0014-98
Hearing No. 160-99-8216X
DECISION
On August 17, 2001, an EEOC Administrative Judge (AJ) issued a decision
finding that the agency had violated Title VII of the Civil Rights
Act of 1964 (Title VII), as amended, 42 U.S.C. � 2000e et seq., by
abolishing a medical accommodation of complainant due to his race at its
Chelsea postal facility. Following its January 9, 2003 final order not
implementing the AJ's decision, the agency filed a timely appeal which
the Commission accepts pursuant to 29 C.F.R. � 1614.405. On appeal,
the agency requests that the Commission affirm its rejection of the AJ's
remedy awarding compensatory damages as a result of her finding that it
discriminated against complainant on the basis of his race (Black).<1>
The agency determined that the compensatory damages awarded are not
supported by the record and are well beyond what is reasonably related
to the issues in this case. Specifically, the agency concluded that
the compensatory damages award of $75,000.00 is grossly excessive in
comparison to awards by the Commission in similar cases. The agency
did not implement the AJ's decision. For the following reasons, the
Commission REVERSES the agency's final order.
Complainant, a Distribution Clerk at the Chelsea, Incoming Mail Center in
Massachusetts, filed a formal EEO complaint with the agency on December
20, 1997, alleging that the agency had discriminated against him on the
bases of race (Black), sex (male) and age (61) when he was returned to
a regular bid assignment on Tour 1 (a night tour) after being medically
accommodated on Tour 2 for two years.
The record reflects that in 1987, while he worked his bid shift, Tour 1,
complainant suffered a heart attack. Consequently, he had difficulty
walking and was prescribed several medications. On January 11, 1995,
complainant had coronary bypass graft surgery, which required him to take
leave. Upon his return to work in May 1995, complainant worked a modified
schedule of four hours in the daytime on Tour 2. Complainant testified
that, per agreement between his doctors and the agency, he worked the
four hour modified schedule for three or four months. Complainant then
came back to work full time days on Tour 2 under the supervision of the
responsible management official (RMO). Complainant's new work hours under
Tour 2 were 4:00 am to 12:30 pm. Complainant stated that he requested
Tour 2 because his doctor said it would not be good for him to go back
working nights. Complainant continued to provide medical documentation
(approximately every six months) which recommended that he be assigned
to Tour 2. The agency had continued to accommodate him by allowing him
to work Tour 2. Complainant successfully performed the duties of the
Tour 2 full-time position for two years before the agency abolished this
medical accommodation.
At the conclusion of the investigation, complainant was provided
a copy of the investigative report and requested a hearing before
an AJ. Following a hearing, the AJ found that complainant's medical
accommodation was abolished and he was returned to Tour 1 as a result
of race discrimination.<2> The AJ further found that the agency's
articulated reasons for its actions were not worthy of belief.
In a supplemental order following his finding of discrimination, the
AJ ordered the agency to pay complainant $75,000.00 in non-pecuniary
compensatory damages. The AJ further ordered the agency to provide
appropriate attorney fees.
In her supplemental order, the AJ noted that the amount awarded takes
into account complainant's credible testimony at hearing corroborated by
his medical documentation and the affidavit of his spouse. She further
noted that she considered the severity and duration of the suffering
the discrimination caused complainant, other cases of similar severity,
and finally found the amount awarded was not "monstrously excessive
standing alone." The AJ specifically noted that the amount takes
into account complainant's pain and humiliation at being compelled to
leave agency employment, as a result of not being able to work a day
shift due to unlawful discrimination, and to mitigate his financial
circumstances by accepting menial jobs while becoming totally dependent
on his wife as the sole wage earner. The AJ further considered that
complainant suffered the embarrassment and humiliation of having to
borrow money from his grown children to pay basic expenses. She noted
that complainant credibly detailed how he fell behind in his bills and
began to receive debt collection calls. In responding to the agency's
claim that complainant willingly abandoned his job as a result of not
keeping his Tour of choice, the AJ asserted that complainant was advised
by his doctors that there was a "greater danger of death" working night
shifts, and an independent medical examination (IME), which the agency
finally provided, supported this fact. Finally, the AJ observed that for
fourteen months, complainant endured not only great financial difficulty
because of his "well-founded fear for his health and even for his life,"
but when complainant fought for and won the right to an IME, the agency
failed to provide him with one for a period of months.
In his appeal, complainant asks the Commission to uphold the AJ's ruling
on remedies awarded. Complainant mainly contends that the compensatory
damage amount is not excessive; and his submitted requests for relief
were for pain and suffering endured by him and his family as a result of
egregious, unlawful discrimination at the hands of a high-ranking agency
official. On appeal, the agency argues, mainly, that the AJ's award of
damages was made in error because there is no evidence in the record to
support such an award. The agency specifically asserts that complainant
has not proven a nexus between the agency's action and his alleged harm;
the agency action here is not egregious; complainant failed to adequately
detail his pain and suffering resulting from the abolishment of his
medical accommodation; and complainant failed to show how the agency's
conduct "heightened the fear" complainant had been experiencing since
his condition was first diagnosed years prior to this action.
Pursuant to section 102(a) of the Civil Rights Act of 1991, a complainant
who establishes unlawful intentional discrimination under either Title VII
of the Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. � 2000e
et seq. or Section 501 of the Rehabilitation Act of 1973 (Rehabilitation
Act), as amended, 29 U.S.C. � 791 et seq. may receive compensatory damages
for past and future pecuniary losses (i.e., out-of-pocket expenses)
and non-pecuniary losses (e.g., pain and suffering, mental anguish).
42 U.S.C. � 1981a(b)(3). In West v. Gibson, 119 S.Ct. 1906 (1999), the
Supreme Court held that Congress afforded the Commission the authority
to award compensatory damages in the administrative process.
To receive an award of compensatory damages, a complainant must
demonstrate that he or she has been harmed as a result of the agency's
discriminatory action; the extent, nature, and severity of the harm; and
the duration or expected duration of the harm. Rivera v. Department of
the Navy, EEOC Appeal No. 01934157 (July 22, 1994), req. for recons. den.,
EEOC Request No. 05940927 (December 11, 1995); Enforcement Guidance:
Compensatory and Punitive Damages Available Under Section 102 of the Civil
Rights Act of 1991, EEOC Notice No. 915.002 (July 14, 1992), at 11-12, 14.
Compensatory damages may be awarded for the past pecuniary losses,
future pecuniary losses, and non-pecuniary losses which are directly or
proximately caused by the agency's discriminatory conduct. EEOC Notice
No. 915.002 at 8. Objective evidence of compensatory damages can include
statements from the complainant concerning his or her emotional pain or
suffering, inconvenience, mental anguish, loss of enjoyment of life,
injury to professional standing, injury to character or reputation,
injury to credit standing, loss of health, and any other nonpecuniary
losses that are incurred as a result of the discriminatory conduct.
Statements from others, including family members, friends, health
care providers, other counselors (including clergy) could address the
outward manifestations or physical consequences of emotional distress,
including sleeplessness, anxiety, stress, depression, marital strain,
humiliation, emotional distress, loss of self-esteem, excessive fatigue,
or a nervous breakdown. See Lawrence v. United States Postal Service,
EEOC Appeal No. 01952288 (April 18, 1996), citing Carle v. Department
of the Navy, EEOC Appeal No. 01922369 (January 5, 1993).
Evidence from a health care provider or other expert is not a mandatory
prerequisite for recovery of compensatory damages for emotional harm.
A complainant's own testimony, along with the circumstances of a
particular case, can suffice to sustain his or her burden in this regard.
The more inherently degrading or humiliating the defendant's action is,
the more reasonable it is to infer that a person would suffer humiliation
or distress from that action.
To prevail in a claim for compensatory damages, complainant must
establish a causal connection between the discriminatory conduct and the
harm that he suffered. See Browne v. Department of Agriculture, EEOC
Appeal No. 01944256 (July 17, 1995). Complainant and his wife provided
detailed testimony as to the pain endured as a result of the agency's
unlawful action. Complainant testified to the extreme anxiety he felt in
having to choose whether to leave agency employment and somehow attempt
to sustain himself and his family, or stay and face greater risk of
more severe coronary problems or even death. Complainant's testimony
further revealed the continuous strain of trying to maintain menial
employment to make ends meet in their home. Complainant's wife detailed
his loss of enjoyment of life, as complainant became inactive around the
house and did not interact with his grandchildren as he once did before
having to leave agency employment. Complainant's wife stated that the
"effect this had on my husband was one of devastation," and he became
introverted and "worried constantly about our finances and how we were
going to survive." She explained that complainant had to borrow money
from his siblings as well as his youngest daughter "in order to pick
up some food from the grocery store." Complainant's wife detailed
his change in mood as cranky and their relationship very strained as
complainant suffered through sleepless nights and antisocial behavior as
a result of the agency's action. Complainant's medical documentation,
while not showing as the agency argues that his coronary condition
worsened during the time in question, does explain complainant's
emotional turmoil endured as a result of being made to choose between
possibly a life or death decision while not knowing how to financially
support himself and his family if he left agency employment. This,
he ultimately decided to do, and he suffered tremendously. Further,
the Commission does find the behavior of the RMO as egregious in that
he seemed to play a great part in not just abolishing complainant's
medical accommodation, but also stifling complainant's ability to get
an IME to support the claims of his personal physicians. The record
reveals that the RMO, highest ranking official at that facility, even
communicated with complainant's physicians without his consent, and
seemed to desperately try to derail complainant's attempts at getting
an impartial review of his need for a continued medical accommodation.
As complainant correctly summarized in his appeal brief, "the agency's
actions prolonged and exacerbated the financial harm caused to complainant
and thus prolonged and exacerbated the emotional and psychological harm
caused to complainant." See Ghazzawi vs. United States Postal Service,
EEOC Appeal No. 01A15327 (April 23, 2002) ($75,000 in nonpecuniary
damages for feelings of humiliation, feelings of hopelessness, feelings
of uselessness, deteriorated relationships with wife and five children,
deteriorated interest in pleasurable activities and feelings of anger).
Also see Toro v. United States Postal Service, EEOC Appeal No. 07A20095
(September 30, 2003) ($85,000 in nonpecuniary damages for discriminatory
treatment by supervisor resulting in bouts of depression, extreme
humiliation and marital difficulties).
In view of the evidence presented, we find that an award of $75,000
is appropriate. We will therefore order the agency to pay complainant
$75,000 in compensatory damages.
Concerning complainant's back pay award, the agency is responsible
for making this calculation under the Back Pay Act, discussed below.
What amount in back pay is justified will be determined consistent with
the Order below.
Therefore, after a careful review of the record, including arguments
and evidence not specifically discussed in this decision, the Commission
REVERSES the agency's final order and remands the matter to the agency
to take corrective action in accordance with this decision and the
Order below.
ORDER (D1199)
The agency is ORDERED to take the following remedial actions:
(1) The agency shall pay complainant $ 75,000.00 in non-pecuniary
compensatory damages, no later than sixty (60) calendar days after the
date this decision becomes final.
(2) 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, no later than sixty (60) calendar days after the date this
decision becomes final. The 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 the complainant for the undisputed
amount within sixty (60) calendar days of the date the agency determines
the amount it believes to be due. The 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) The agency is directed to conduct training for the manager(s)
responsible for abolishing complainant's medical accommodation.
The agency shall address these employees' responsibilities with respect
to eliminating discrimination in the workplace and all other supervisory
and managerial responsibilities under equal employment opportunity law.
The Commission does not consider training to be a disciplinary action.
(4) The agency shall consider taking disciplinary action against the
managers responsible for abolishing complainant's medical accommodation.
The agency shall report its decision within (30) calendar days. 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.
(5) The agency shall pay attorney's fees in the amount of $22,512.50.
The agency is further directed to submit a report of compliance, as
provided in the statement entitled "Implementation of the Commission's
Decision." The report shall include supporting documentation of the
agency's calculation of backpay and other benefits due complainant,
including evidence that the corrective action has been implemented.
POSTING ORDER (G0900)
The agency is ordered to post at its Chelsea postal facility 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 (K0501)
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 19848,
Washington, D.C. 20036. 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 (M0701)
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 19848,
Washington, D.C. 20036. 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 (R0900)
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 (Z1199)
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 that the Court appoint
an attorney to represent you and that the Court 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 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:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
___02-10-04_______________
Date
1The agency does not challenge the AJ's
finding of discrimination. Nor does the agency challenge the AJ's
attorney fee award totaling $22,512.50, or its duty to assess and provide
backpay due to complainant.
2The AJ found no discrimination with respect to complainant's other
claimed bases.