01A04704
03-18-2003
Gregory O. Palecek, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Gregory O. Palecek v. United States Postal Service
01A04704
March 18, 2003
.
Gregory O. Palecek,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A04704
Agency No. 4-I-530-1021-96
Hearing No. 260-97-9054X
DECISION
Complainant appeals the agency's final decision on compensatory
damages. Pursuant to 29 C.F.R. � 1614.405, the Commission accepts the
complainant's appeal in the above-entitled matter. After a review of
the record in its entirety, including consideration of all statements
submitted on appeal, it is the decision of the Equal Employment
Opportunity Commission (EEOC) to MODIFY the final agency decision.
As background, the record reveals that complainant was the Postmaster at
the agency's Brownsville, Wisconsin facility until he was involuntarily
reassigned from Brownsville and then permanently reassigned as Postmaster
in Theresa, Wisconsin in November 1995. He filed a formal EEO complaint
on March 24, 1996, alleging that the agency discriminated against him on
the bases of sex (male) and reprisal for prior EEO activity. Following
a hearing, the Administrative Judge ruled for complainant, finding the
agency retaliated against him by unlawfully subjecting complainant to
unwarranted disciplinary measures, denying him bonuses, and reassigning
him to another location. The AJ also concluded that the actions
against complainant were sufficiently severe and pervasive to alter
the conditions of employment and create an abusive work environment. On
July 30, 1997, the agency rejected the AJ decision and issued its FAD,
finding no discrimination. Complainant appealed. On December 10, 1998,
in Palecek. v. United States Postal Service, EEOC Appeal No. 01976505
(December 10, 1998), EEOC reversed the agency's July 30, 1997 decision
and ordered relief. In addition to ordering the agency to consider
compensatory damages, the Commission granted complainant the sums denied
him under the agency's Merit Pay Evaluation program and ordered the
agency to determine the appropriate amount of any back pay and other
benefits due complainant. The Commission also ordered the agency to
rescind and expunge all records pertaining to the Notice of Suspension,
the Letter of Warning, and any related disciplinary decisions from his
official personnel files. The record shows that there is no reference to
any disciplinary actions in complainant's records. The record also shows
that the agency posted the required notices to employees and conducted
the required training for its supervisory personnel.
In its May 19, 2000 decision on damages, the agency awarded complainant
$7,052.00 in total compensatory damages, of which $7,000.00 was for
non-pecuniary damages. The agency rejected complainant's demand for
medical expenses, attorney's fees, the private investigator costs,
printing fees, commuting costs and loss of his thrift savings and
investments.<1> This appeal followed.
The main issue on appeal pertains to the remaining compensatory
damages. Complainant seeks a minimum of $30,000 for the pain
and suffering, mental anguish, sleeplessness and damage to his
career. Complainant also seeks $1,274.25 in medical expenses; $198.12
for mailing and copying, his attorney's fees, $30,995 for the additional
costs of his commute, and an unspecified reimbursement for the loss of
thrift savings and investments.
In support of his claim for non-pecuniary damages, complainant submitted
a sworn affidavit (five page affidavit) describing the embarrassment
and humiliation, anxiousness, frustration and fear of removal he
felt. Complainant testified that he suffered severe emotional stress
as a result of the manager's actions, including depression, insomnia,
anxiety, stomach problems, including diarrhea, nausea, loss of libido,
and injury to character and reputation. His testimony is buttressed by
that of his wife, family and co-workers. In addition, his doctor wrote
a letter stating that he believed that the stress from complainant's
supervisor exacerbated his health problems.
Pursuant to section 102(a) of the Civil Rights Act of 1991, a complainant,
who establishes his or her claim of unlawful discrimination, 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, and
mental anguish). 42 U.S. C. 1981a(b)(3). In West v. Gibson, 527 U.S. 212
(1999), the Supreme Court held that the Commission has the authority to
award compensatory damages in the federal sector EEO process.
The particulars of what relief may be awarded, and what proof is
necessary to obtain non-pecuniary relief, are set forth in detail in
EEOC's Enforcement Guidance, Compensatory and Punitive Damages Available
Under Section 102 of the Civil Rights Act of 1991 (July 14, 1992)
(Guidance). Briefly stated, the complainant must submit evidence to
show that the agency's discriminatory conduct directly or proximately
caused the losses for which damages are sought. Id. at 11-12, 14;
Rivera v. Department. of the Navy, EEOC Appeal No. 01934157 (July
22, 1994). The amount awarded should reflect the extent to which the
agency's discriminatory action directly or proximately caused harm to
the complainant and the extent to which other factors may have played
a part. Guidance at 11- 12. The amount of non-pecuniary damages should
also reflect the nature and severity of the harm to the complainant,
and the duration or expected duration of the harm. Id. at 14.
Non-pecuniary damages are available to compensate an injured party for
actual harm, even where the harm is intangible. Carter v. Duncan-Higgins,
Ltd., 727 F.2d 1225 (D.C. Cir. 1984). Emotional harm will not be presumed
simply because the complainant is a victim of discrimination. Guidance
at 5. The existence, nature, and severity of emotional harm must be
proved. Id. We note 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)).
In Carle v. Department of the Navy, the Commission explained that evidence
of non-pecuniary damages could include a statement by the complainant
explaining how he or she was affected by the discrimination. EEOC
Appeal No. 01922369 (January 5, 1993). The complainant could also
submit documentation of medical or psychiatric treatment related to the
effects of the discrimination. Id. However, evidence from a health care
provider is not a mandatory prerequisite to establishing entitlement to
non- pecuniary damages. Sinnott v. Department of Defense, EEOC Appeal
No. 01952872 (September 19, 1996).
In this case, the record establishes that complainant was unlawfully
subjected to unwarranted disciplinary actions and removed from his
Postmaster position in Brownsville. The Commission finds that the
record provides a sufficient nexus to the complainant's condition and
the retaliation. While complainant accepted a lateral reassignment, the
record shows that he was reassigned from Brownsville against his will,
which the AJ also found as a matter of fact. The guiding principle is to
make the complainant whole by restoring him to the position that he would
have been in were it not for the agency's discriminatory actions. Franks
v. Bowman Transportation Co., 424 U.S.747,764 (1976). We note, however,
that the Commission did not order the agency to reinstate complainant
to the Postmaster position in Brownsville.
Pecuniary Damages
Medical Costs
Complainant seeks $1,274.25 in additional medical costs. We find that
the record does not provide a causal connection between the other
medical treatments incurred (MRI diagnostic tests and x-rays) and the
discrimination by complainant's supervisor. Therefore, the request for
$1,274.25 is denied. The agency reimbursed him $52.00 for a medical
prescriptions. The record does not show any other costs or expenses
associated with any medical expenses. The record shows that complainant
resorted to holistic and natural healing methods as a remedy and these
holistic treatment did not involve any medical expenditures.
Printing and Copying Costs
The record sufficiently documents complainant's claim for reimbursement
for copying and we award $198.12, which is the amount complainant claimed.
Private Investigator Costs
With regard to the cost of the private investigator, however, the
Commission agrees with the agency that the hiring of the investigator was
not an expense incurred based on actions by the supervisor, but rather
actions taken by complainant to counter the separate charges brought
against him by another employee.
Attorney's Fees
In accordance with the Commission's decision in Palecek. v. United
States Postal Service, EEOC Appeal No. 01976505 (December 10, 1998),
complainant is awarded his attorney's fees in the amount of $1,500.00,
plus reasonable attorney's fees incurred in this appeal.
Equitable Relief
Thrift Savings Costs and the Costs of the Commute
The record shows that the agency has paid complainant $600 for his
lost earnings. In order to place complainant in the position in which
he would have been, absent discrimination, the agency would need to
reimburse him for any losses he suffered. This would include matching
retroactive tax-deferred contributions that otherwise would have been
made to complainant's thrift savings account for the period, in the
absence of discrimination. The record does not show that there are any
such unpaid monetary losses. We do not find that the request for the
costs of the commute to be supported by the record before us.
Non-Pecuniary Damages
The record shows that the agency has paid complainant $7,000.00 for his
claim of emotional distress. Based on complainant's statement and the
AJ's findings, the Commission concludes that the agency's discriminatory
action caused complainant to suffer emotional distress. We note that
the AJ concluded that as a result of the supervisor's harassment,
complainant suffered several physical and mental ailments when he
was removed from Brownsville.<2> To compensate him for his emotional
distress, the Commission finds that an award of non-pecuniary damages
in the amount of $30,000.00 is appropriate. This award (an additional
$23,000.00) takes into account the severity and the duration of the
harm (approximately three years) done to complainant by the agency's
discriminatory and retaliatory action. The Commission further notes
that this amount meets the goals of not being motivated by passion or
prejudice, not being "monstrously excessive" standing alone, and being
consistent with the amounts awarded in similar cases. See Cygnar, 865
F.2d at 848. See Barrett v. United States Postal Service, EEOC Appeal
No. 01984091 (July 24, 2001) ($35,000 in non-pecuniary damages where
denial of transfer led to depression, sleeplessness and mental anguish)
and Thomas v. Department of Veterans Affairs, EEOC Appeal No. 01A01600
(July 24, 2000) ($25,000 award based on testimony of complainant and
spouse establishing complainant suffered humiliation, depression, loss
of self-esteem and worsening health conditions because of discrimination).
After a careful review of the record, the Commission MODIFIES the agency's
final decision on damages and increases the non-pecuniary damages award
to $30,000.00, less the $7,000 in non-pecuniary damages already paid and
the $52 already paid in pecuniary damages. The Commission remands the
matter and directs the agency to provide the following remedial relief.
ORDER (C0900)
The agency is ordered to take the following remedial action:
1. Within sixty (60) calendar days of the date this decision becomes
final, the agency shall pay complainant an additional $23,000.00 in
non-pecuniary damages, for a total of $30,000.00 in non-compensatory
damages.
Within sixty (60) calendar days of the date this decision becomes final,
if it has not done so already, the agency shall pay complainant $198.12
for copying and postage.
Within sixty (60) calendar days of the date this decision becomes final,
if it has not done so already, the agency shall pay the complainant
$1,500.00 for attorney's fees and costs, plus any reasonable attorney's
fees and costs incurred on appeal.
The agency is 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 verifying that all of the
foregoing corrective actions have 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
March 18, 2003
__________________
Date
1 The agency states that it has complied with
the Commission's December 10, 1998 order of relief and that the only
remaining issue is the claim for compensatory damages and the report
of compliance.
2We note that the AJ in her June 6, 1997 decision recommended the agency
give complainant compensatory damages sufficient to compensate for the
�severe emotional distress and damage to his career which he suffered
as a result of the sex discrimination and retaliation� to which he
was subjected.