07A20065
03-17-2003
Charles Mature, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, (Eastern Area), Agency.
Charles Mature v. United States Postal Service
07A20065
March 17, 2003
.
Charles Mature,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
(Eastern Area),
Agency.
Appeal No. 07A20065
Agency No. 1D-284-0016-98
Hearing No. 140-99-8123X
DECISION
Following its February 21, 2002 final order, 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
an EEOC Administrative Judge's (AJ) finding that the agency discriminated
against complainant on the basis of race. The agency also requests
that the Commission affirm its rejection of the AJ's order to reinstate
him to his former position, provide back pay, compensatory damages and
attorney's fees. For the following reasons, the Commission REVERSES
the agency's final order.
Complainant, an M-04 Part-time Flexible Mail Handler employed at the
agency's Kinston, North Carolina facility, filed a formal EEO complaint
with the agency on September 14, 1998, alleging that the agency had
discriminated against him on the bases of race (Caucasian) and sex (male)
when from about March 21, 1998 through April 14, 1998, he did not receive
either a thirty (30) or sixty (60) day evaluation of his job performance.
Complainant also alleged discrimination in violation of his race, sex and
physical disability (right thigh injury, lower back injury and curvature
of the spine) when, on or about April 15, 1998, he was given an unfair
evaluation and then on April 16, 1998, he received a Notice of Removal
during his probationary period for failing to follow instructions and
failing to report an injury.
The record reflects that complainant was hired by the agency about
January 31, 1998, and was scheduled to receive thirty (30) and sixty (60)
day evaluations during his probationary period. However, complainant
states that he did not receive the 30 day evaluation, and received the
60 day evaluation in an untimely manner. Complainant also asserts that
in the 60 day evaluation, he was given satisfactory grades in three (3)
areas and unsatisfactory grades in three (3) other areas. The record
further reflects that on April 4, 1998, complainant injured his hand
while he was unloading a truck. Complainant stated that the next day,
he reported his injury to his Group Leader, who in turn reported it
to the 204-B Supervisor without incident. However, on April 15, 1998,
complainant was terminated from employment with the agency because he
allegedly told his supervisor that he was not going to unload a truck,
and because he failed to report the aforementioned hand injury until
two days after the injury took place. Complainant contends that he was
treated less favorably than two similarly situated employees not in his
protected groups, both of whom received their 30 and 60 evaluations from
the same supervisor that complainant had.
The AJ held a hearing on October 4, 2001, and found that complainant
established a prima facie case of race discrimination regarding issue
(1), as there were similarly situated employees not in complainant's
protected groups who received 30 day evaluations while complainant did not
receive one. The AJ then found that the agency articulated legitimate,
nondiscriminatory reasons for its actions, namely that complainant's
main supervisor (CS) was not able to complete the evaluation due to
time constraints. However, the AJ found that the reasons proffered
by the agency for the failure to give complainant a 30 day evaluation
lacked credibility due to a contradiction with evidence in the record.
The AJ found that the only proffered difference between complainant and
the comparative employees is their race.
Addressing issue (2), the AJ found that complainant presented sufficient
evidence to support the inference of race discrimination, and thus he
established a prima facie case of race discrimination. The AJ then
found that the agency articulated legitimate, nondiscriminatory reasons
for its actions, namely that complainant was terminated for refusing
a direct order and for failing to report a hand injury. Nevertheless,
the AJ found that complainant demonstrated that the agency's articulated
reasons for its actions were pretexts for discrimination. In so finding,
the AJ noted that CS's testimony regarding the reasons for terminating
complainant contradicted the evidence of record. For example, the AJ
found that CS stated that complainant was terminated based on reports from
the 204-B Supervisor. However, the AJ noted that the 204-B Supervisor
stated that he did not experience any problems with complainant's work.
As such, the AJ found that complainant established race discrimination
when he was terminated.
The AJ noted that complainant alleged disability discrimination,
but found that he had not proffered any evidence to establish that
he is an individual with a disability under the Rehabilitation Act.
While complainant alleged that he has an injury to his right thigh
muscle and a slight curvature of the spine, there is no documentation
that these injuries substantially limited one of more of complainant's
major life activities. As a result, the AJ found that complainant failed
to establish that he was covered by the Rehabilitation Act.
The agency's final order rejected the AJ's decision. In a Notice of
Final Action dated February 21, 2002, the agency stated that it was
appealing the AJ's decision regarding the finding of race discrimination
on the termination issue. The agency also appealed the AJ's award of
pecuniary and non-pecuniary compensatory damages and attorney's fees.
The agency also filed a brief on appeal dated March 12, 2002, stating
that the AJ erred in finding that complainant established a prima facie
case of race discrimination with regard to his removal. The agency
also contended that the AJ erred in finding that the agency failed
to articulate legitimate, nondiscriminatory reasons for its actions.
In addition, the agency contended that the AJ failed to apply the
appropriate standard in calculating compensatory damages.
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.
After a careful review of the record, we discern no basis to disturb the
AJ's finding of discrimination on the basis of race. The findings of
fact are supported by substantial evidence, and the AJ correctly applied
the appropriate regulations, policies, and laws. In so finding, the
Commission notes that the agency has made no argument on appeal regarding
the finding of race discrimination on the issue of the agency's failure
to provide timely 30 and 60 day evaluations to complainant. After a
review of the record, the Commission finds that the AJ permissibly
found complainant demonstrated that the agency's articulated reason
for not issuing the evaluations was more likely than not a pretext for
race discrimination. In so finding, we note the AJ's finding that the
reasons proffered by the agency lacked credibility due to the direct
contradiction with the investigative record. The agency stated that
the comparison employees were given timely evaluations while complainant
was not was because the comparison employees were hired first and as the
rating official was not available when complainant's evaluation was to
be completed. However, the AJ found that, in fact, complainant was hired
before the comparison employees, and the rating official completed their
evaluations during the same period during which he should have completed
the evaluation for complainant. As a result, we find that the AJ did
not err in finding that the agency discriminated against complainant on
the basis of race when it did not provide him with timely 30 and 60 day
evaluations during his probationary period.<1>
In addition, addressing the termination issue, the AJ found that while
complainant established a prima facie case of race discrimination, the
agency articulated legitimate, nondiscriminatory reasons for its actions,
namely that CS stated that complainant was terminated for not reporting
his hand injury. In its brief on appeal, the agency contends that the
Commission has found that failure to report an accident is a legitimate,
nondiscriminatory reason for the agency to remove an employee. Further,
the agency stated that the only reasons it terminated complainant were his
failure to report the injury and his failure to unload a truck. However,
in finding that the agency discriminated against complainant regarding
the termination issue, the AJ found that complainant demonstrated that
the agency's articulated reasons for the termination were pretexts for
discrimination. The AJ noted that CS's testimony is in direct conflict
with the testimony of complainant's 204-B Supervisor. After a review
of the record, the Commission finds that the AJ did not err in finding
that the agency's articulated reasons for terminating complainant were
more likely than not pretexts for race discrimination. In so finding,
we note that CS stated that he relied on the statements of the 204-B
Supervisor in deciding to terminate complainant, but as found by the
AJ, the record contains no evidence that the 204-B Supervisor discussed
with CS any matter related to complainant's performance or his failure
to report the hand injury.<2> Investigative Report, at 176-177.
After a consideration of the record, the Commission concurs with the
AJ's finding that the testimony of CS was not worthy of belief as
it was in contradiction with the testimony of the 204-B Supervisor.
In Reeves v. Sanderson Plumbing Products, Inc., 120 S.Ct. 2097 (2000),
a unanimous Supreme Court held that evidence showing that the employer
presented a false reason for a challenged action is sufficient in most
cases to support a finding of discrimination. The Administrative Judge
concluded that the agency's explanations for its actions were false and
that there was simply no uncontroverted, independent evidence that no
race discrimination occurred. Applying Reeves, we concur with the AJ's
finding that complainant established that he was discriminated against
on the basis of his race when he was terminated in 1998.
Turning to the issue of remedies, we note that the agency has challenged
the AJ's findings regarding compensatory damages and attorney's fees.
Initially, we address the AJ's finding that the agency must pay
complainant $11,000.00 in pecuniary compensatory damages. The AJ noted
that complainant presented evidence that prior to his removal, he had an
investment mutual fund with a balance of $11,400.00. After his removal,
complainant removed funds, and by December 1999 the balance was $983.00.
Complainant contends that he used the proceeds for living expenses.
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. Compensatory
and Punitive Damages Available Under Section 102 of the Civil Rights Act
of 1991, EEOC Notice No. 915.002 (July 14, 1992), at 8. Pecuniary losses
are out-of-pocket expenses that are incurred as a result of the employer's
unlawful action, including job-hunting expenses, moving expenses,
medical expenses, psychiatric expenses, physical therapy expenses, and
other quantifiable out-of-pocket expenses. Id. Past pecuniary losses
are the pecuniary losses that are incurred prior to the resolution of
a complaint via a finding of discrimination, an offer of full relief,
or a voluntary settlement. Id., at 8-9.
A compensatory damages award should fully compensate a complainant for
the harm caused by the agency's discriminatory action even if the harm
is intangible. Id. at 13. Thus, a compensatory damages award should
reimburse a complainant for proven pecuniary losses, future pecuniary
losses, and non-pecuniary losses. A complainant has a duty to mitigate
his or her pecuniary damages. Id. at 9. If a respondent can prove that
a complainant failed to mitigate pecuniary damages, the damages award
should be reduced to reflect all losses that could have been avoided by
the exercise of reasonable diligence. Id. at 9-10.
Complainant alleged he had to withdraw $11,630.00 from a stock mutual fund
after he was terminated by the agency. Complainant submits documentation
from the mutual fund establishing the amount he withdrew, and states that
the purpose of these loans was for rent and utility bills. As previously
found by the Commission, expenses such as rent, tax payments, mortgage
payments and living expenses would have been incurred whether complainant
was discriminated against or not. See Lee v. USPS, EEOC Appeal No
01995204 (July 11, 2001). In other words, it cannot be said that these
expenses would not have occurred "but for" the agency's discrimination. To
the contrary, complainant would have still been responsible for his rent,
utility bills and living expenses. The only "but for" expenses that
could have resulted from these withdrawls would be foregone interest or
penalties on the withdrawls, as complainant would not have incurred these
"but for" the agency's discrimination. While it is true complainant
would not have had to withdraw money from his account at all if he had
been receiving his regular pay from the agency, when he does get such
pay, in the form of his back pay award, it is from this award that these
withdrawls should be paid back. Therefore, complainant having submitted
no evidence of any foregone interest or penalties incurred as a result
of these withdrawls, we reverse the AJ's finding that complainant is
entitled to $11,000.00 in pecuniary damages and deny the requested amount.
The AJ then ordered the agency to pay complainant $20,000.00 in
non-pecuniary damages. The AJ stated that she arrived at this amount
based on letters provided by complainant, his wife and family members.
Further, the AJ noted that complainant proffered evidence of a marital
strain due to the discrimination, with some evidence that his credit
history suffered due to his inability to meet financial obligations. The
Commission finds that the AJ did not rely on prior Commission precedent
in determining the specific amount that she awarded to complainant.
On appeal, we note that the agency contends that complainant did not
submit medical documentation in support of his contention that he
suffered emotional pain or from any psychological condition. Further,
the agency contends that complainant submitted no documentation that he
suffered damage to his credit rating. The agency cited prior Commission
cases wherein non-pecuniary damages were awarded, and argued that based
on the evidence submitted by complainant he should be awarded no more
than $5,000.00 in compensatory damages.
Initially, we point out that non-pecuniary compensatory damages
are designed to remedy a harm and not to punish the agency for its
discriminatory actions. See Memphis Community School Dist. v. Stachura,
477 U.S. 299, 311-12 (1986) (stating that a compensatory damages
determination must be based on the actual harm sustained and not the
facts of the underlying case). The Commission notes that for a proper
award of non-pecuniary damages, the amount of the award should not be
"monstrously excessive" standing alone, should not be the product of
passion or prejudice, and should be consistent with the amount awarded
in similar cases. See Ward-Jenkins v. Department of the Interior, EEOC
Appeal No. 01961483 (March 4, 1999) (citing Cygnar v. City of Chicago,
865 F. 2d 827, 848 (7th Cir. 1989)).
Complainant stated in his affidavit and at the hearing that he suffered
marital distress and strain as a result of the discriminatory behavior of
the agency. He stated that he experienced stress due to the financial
aspects of losing his job, and he also stated that he suffered a loss
in his reputation due to the termination.
We note that the Commission has awarded compensatory damages in cases
somewhat similar to
complainant's case in terms of the harm sustained. See, e.g., Batieste
v. Department of the Air Force, EEOC Appeal No. 01974616 (May 26,
2000) ($12,000.00 in non-pecuniary damages based on complainant's and
others' statements of emotional distress due to agency's discriminatory
termination); Jones v. Department of Defense, EEOC Appeal No. 01973551
(April 14, 2000) ($9,000.00 in non-pecuniary damages based on
complainant's statements of the interference with family and marital
relations, digestive problems, headaches, anxiety, sleeplessness,
and exhaustion resulting from the agency's discrimination); Butler
v. Department of Agriculture, EEOC Appeal No. 01971729 (April 15, 1999)
($7,500.00 in non-pecuniary damages based on complainant's testimony
regarding his emotional distress); Hull v. Department of Veterans Affairs,
EEOC Appeal No. 01951441 (Sept. 18, 1998) ($12,000.00 in non-pecuniary
damages based on complainant's testimony of emotional distress due to
retaliatory harassment); White v. Department of Veterans Affairs, EEOC
Appeal No. 01950342 (June 13, 1997) ($5,000.00 in non pecuniary damages
based on emotional distress); Roundtree v. Department of Agriculture, EEOC
Appeal No. 01941906 (July 7, 1995) ($8,000.00 in non-pecuniary damages
where medical evidence testimony was provided regarding complainant's
emotional distress, but the majority of complainant's emotional problems
were caused by factors other than the discrimination).
After analyzing the evidence which establishes the harm sustained
by complainant and upon consideration of damage awards reached in
comparable cases, the Commission finds that complainant is entitled
to an award of non- pecuniary damages in the amount of $10,000.00. We
find this case analogous to the above-referenced cases with respect to
the nature, severity and duration of the harm. In addition, we note
that while complainant alleged that he was discriminated against on
the bases of race, sex and disability, the AJ only concluded that the
agency discriminated against him on the basis of race.<3> Finally,
we note that this award is not motivated by passion or prejudice, is
not "monstrously excessive" standing alone, and is consistent with the
amounts awarded in similar cases. See Cygnar, 865 F.2d at 848.
ORDER (D0900)
The agency is ORDERED to take the following remedial action:
(1) The agency shall reinstate complainant to the position of PTF
Mailhandler, M-04, with the remaining thirty (30) days on his ninety
(90) day probationary period.
(2) The agency shall purge all documents related to complainant's
discriminatory separation from the agency's personnel files.
(3) The agency shall determine the appropriate amount of back pay
(with interest, if applicable) and other benefits due complainant,
pursuant to 29 C.F.R. � 1614.501, from April 16, 1998, to the date of
reinstatement, no later than thirty (30) 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 thirty (30) calendar days of the date the
agency determines the amount it believes to be due. The appellant 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."
(4) Within thirty (30) days of the date on which this decision becomes
final, the agency shall tender to complainant non-pecuniary compensatory
damages in the amount of $10,000.00.
(5) The agency shall pay attorney's fees and costs in the amount of
$4,816.29 within sixty (60) days of the date this decision becomes
final.<4>
(6) 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 interest and include evidence that the corrective
action has been implemented.
(7) The agency shall take corrective, curative or preventative action
to ensure that similar violations of Title VII of the Civil Rights Act
of 1964 (Title VII), as amended, 42 U.S.C. � 2000e et seq. will not recur.
(8) The agency shall post a notice indicating that the agency has been
found to have discriminated against an employee located in the agency's
Kinston, North Carolina postal facility.
POSTING ORDER (G0900)
The agency is ordered to post at its Kinston, North Carolina 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.
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (S0900)
You have the right to file a civil action in an appropriate United States
District Court within ninety (90) calendar days from the date that you
receive this decision. If you file a civil action, you must name as
the defendant in the complaint the person who is the official agency head
or department head, identifying that person by his or her full name and
official title. Failure to do so may result in the dismissal of your
case in court. "Agency" or "department" means the national organization,
and not the local office, facility or department in which you work. If you
file a request to reconsider and also file a civil action, filing a civil
action will terminate the administrative processing of your complaint.
RIGHT TO REQUEST COUNSEL (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
March 17, 2003
__________________
Date
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Washington, D.C. 20507
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
An Agency of the United States Government
This Notice is posted pursuant to an Order by the United States
Equal Employment Opportunity Commission dated which
found that a violation of Title VII of the Civil Rights Act of 1964,
as amended, 42 U.S.C. �2000e, et seq. (Title VII) has occurred at
the United States Postal Service's Kinston, North Carolina facility
(hereinafter �facility�).
Federal law requires that there be no discrimination against any employee
or applicant for employment because of the person's RACE, COLOR, RELIGION,
SEX, NATIONAL ORIGIN, AGE, or DISABILITY with respect to hiring, firing,
promotion, compensation, or other terms, conditions or privileges of
employment.
The facility supports and will comply with such Federal law and will
not take action against individuals because they have exercised their
rights under law.
The facility was found to have discriminated against an employee on the
basis of race when the employee: (1) did not receive thirty (30) or sixty
(60) day evaluations in a timely manner during his probationary period;
and (2) was terminated when he received a Notice of Removal for failing
to follow instructions and failing to report an injury. The agency was
therefore ordered to: (1) reinstate the employee to his prior position
at the facility with 30 days left on his probationary period; (2) purge
all documents relating to the employee's discriminatory separation from
the agency; (3) provide the employee with back pay and other benefits;
(4) pay the employee compensatory damages and attorney's fees; (5) take
corrective action to ensure that similar violations of Title VII will
not recur; and (6) post this notice.
The facility will not in any manner restrain, interfere, coerce,
or retaliate against any individual who exercises his or her right to
oppose practices made unlawful by, or who participates in proceedings
pursuant to, Federal equal employment opportunity law.
Date Posted:
Posting Expires:
29 C.F.R. Part 1614
1 We note that the AJ did not find that the agency discriminated against
complainant on the bases of sex or disability when it failed to issue him
a 30 day evaluation or a timely 60 day evaluation during his probationary
period.
2 As noted by the AJ, CS stated that complainant was terminated based on
reports from his supervisor, the 204-B Supervisor. However, the AJ noted
that the 204-B Supervisor �provided credible testimony� that he did not
experience any problems with complainant's work performance. Further,
the record indicates that while CS stated that the 204-B Supervisor
told CS that he wanted to discuss complainant's attitude and work habits
with complainant, the testimony of the 204-B Supervisor does not support
this statement. See Investigative Report, at 176-177.
3 We note that while complainant alleged in his formal complaint that he
was discriminated against due to his race, sex and disability, in his
affidavit given on November 11, 1998, complainant conceded that he did
not believe that the evaluations were not given to him in a timely manner
due to his sex or disability. Investigative Report, at Affidavit A.
4 We note that on appeal, the agency did not allege that the amount
awarded in attorney's fees was unsupported by documentation or was
otherwise excessive.