01a34761
09-15-2004
Cynthia L. Keller, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Cynthia L. Keller v. United States Postal Service
01A34761
09-15-04
.
Cynthia L. Keller,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A34761
Agency No. 4I-680-0122-98
Hearing No. 320-99-8319x
DECISION
Cynthia L. Keller (hereinafter referred to as complainant) filed a timely
appeal from the April 8, 2002, final decision of the United States Postal
Service (hereinafter referred to as the agency) regarding her claim
for compensatory damages. The appeal is timely filed (see 29 C.F.R. �
1614.402(a)) and is accepted in accordance with 29 C.F.R. � 1614.405.
In EEOC Appeal No. 01A03119 (April 25, 2003), the Commission found that
the agency discriminated against her in reprisal when she was removed in
July 1998. In remedy, the agency was directed, inter alia, to conduct a
supplemental investigation as to complainant's entitlement to compensatory
damages.<1> Complainant submitted her claim, and the agency found that
she was not entitled to compensatory damages, concluding that her claims
were not supported by evidence necessary to establish her entitlement.
The agency found that complainant made references to her medical condition
and its associated costs (pecuniary and non-pecuniary) instead of to
the event found to be discriminatory, i.e., her illegal termination in
reprisal for prior EEO activity.
An award for compensatory damages must be predicated on the harm
experienced as a result of the agency's actions, and the agency is only
responsible for those damages that are clearly shown to be caused by
its actions. Rivera v. Department of the Navy, EEOC Appeal No. 01934156
(July 22, 1994), req. to recon. den., EEOC Request No. 05940927 (December
11, 1995); Carle v. Department of the Navy, EEOC Appeal No. 01922369
(January 5, 1993); Fazekas v. USPS, EEOC Appeal No. 01954627 (April
7, 1997). To recover damages, the complaining party must prove that
the employer's discriminatory act or conduct was the cause of his/her
loss, that is, whether the complaining party incurred the pecuniary
losses as a result of the agency's discriminatory action or conduct.
See Enforcement Guidance: Compensatory and Punitive Damages Available
under 102 of the Civil Rights Act of 1991 (July 14, 1992).
Pecuniary Damages. Complainant submitted copies of bills paid for
medical consultations and drugs, late fees charged for delayed payment
of household bills, interest on a loan for construction of a rental
house, insurance costs, and incidental fees for copying and postage.
She fails, however, to demonstrate how each item she identified was
proximately caused by her removal, e.g., the reason she consulted
doctors, the purposes of the prescription drugs purchased, and how
the agency was responsible for the expenditure of the funds. Further,
her claim for payment of a vacation paid for by her mother-in-law does
not indicate that reimbursement was due; her loss of rental income on
a house undergoing construction is too speculative; and a complainant
is not entitled to reimbursement for time spent on EEO activity. See 29
C.F.R. � 1614.501(e)(iii). Finally, reimbursement of attorney's fees was
addressed in the underlying decision. See � H0900, Statement of Rights.
Non-pecuniary Damages. Complainant requested $50,000, for emotional pain
and suffering, describing her stress and sadness, lack of self-confidence,
and damage to her career. She did not indicate if she was treated
medically for her emotional pain and suffering. Although a claim for
non-pecuniary damages may rest on a complainant's statement alone, we
note that she did not submit other evidence, such as the observations
and effects of her emotional distress on her family.
Nevertheless, complainant has indicated that she experienced some
emotional/mental pain and suffering because of the agency's discriminatory
termination. We find, therefore, that complainant is entitled to an award
of non-pecuniary damages for emotional pain and suffering in the amount
of $5,000. This amount is not motivated by passion or prejudice, is
not monstrously excessive, and is not inconsistent with amounts awarded
in similar cases. See Cygnar v. City of Chicago, 865 F.2d 827, 848
(7th Cir. 1989).
CONCLUSION
Accordingly, the agency's decision is REVERSED, and complainant is
awarded $5,000, as non-pecuniary compensatory damages. The agency is
directed to comply with the Order, below.
ORDER
A. Within thirty (30) days of the date this decision becomes final,
the agency shall pay complainant $5,000, as non-pecuniary compensatory
damages.
B. 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.
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 (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
____09-15-04______________
Date
1The record did not contain a copy of the agency's letter to complainant
initiating and describing the supplemental investigation.