01a21610
03-06-2003
Jane A. Pastva, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Jane A. Pastva v. United States Postal Service
01A21610
3/6/03
.
Jane A. Pastva,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A21610
Agency No. 4C-492-0107-97
Hearing No. 220-98-5075X
DECISION
On January 23, 2002, Jane Pastva, (hereinafter referred to as the
complainant) initiated a timely appeal to the Equal Employment Opportunity
Commission (Commission) from a final decision of the agency concerning
her claim for compensatory damages awarded for a violation of Section
501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended,
29 U.S.C. � 791 et seq. The appeal is accepted by this Commission in
accordance with 29 C.F.R. � 1614.405.
Complainant filed a formal complaint alleging discrimination on the
basis of disability (knee injury), when agency officials:
failed to accommodate her disability by failing to provide her with a
"handicapped" parking spot, resulting in her slipping on the ice in
January 1997, and further injuring her knee;
instructed her to tear up PS Form 1767 (Safety Hazard Report);
on January 14, 1997, she was instructed to report to the Parcel Post
Annex, with a one-half hour change in reporting time.
The agency conducted an investigation, and complainant requested a hearing
before an EEOC Administrative Judge (AJ). Following a hearing, the AJ
found complainant was discriminated against on the basis of disability
when the agency failed to provide her with a "handicapped" parking spot.
Complainant was eventually transferred to another location where she
was provided with an accessible parking spot. The AJ found complainant
was not discriminated against with respect to her remaining allegations.
As relief, the AJ ordered the agency to, among other things, conduct a
supplemental investigation into complainant's entitlement to compensatory
damages. The agency issued a final decision rejecting the AJ's finding
of discrimination, and complainant appealed to the Office of Federal
Operations. See Pastva v. United States Postal Service, EEOC Appeal
No. 01986792 (June 9, 1999). The Office of Federal Operation reversed
the agency's decision, and ordered the agency to conduct a supplemental
investigation into complainant's entitlement to compensatory damages.
See id.<1>
Following a supplemental investigation, the agency issued a final
decision on January 3, 2002. Therein, the agency found complainant
was not entitled to any compensatory damages due to credibility issues,
a pre-existing knee injury, and a lack of casual connection between her
claimed damages and the agency's adverse action.
Section 102(a) of the Civil Rights Act of 1991 (the CRA 1991), Stat. 1071,
Pub. L. No. 102-166, codified as 42 U.S.C. � 1981a, authorizes an award of
compensatory damages as part of the "make whole" relief for intentional
discrimination in violation of Title VII of the Civil Rights Act of
1964, as amended. Section 1981a(b)(2) indicates that compensatory
damages do not include back pay, interest on back pay, or any other
type of equitable relief authorized by Title VII. Section 1981a(b)(3)
limits the total amount of compensatory damages that may be awarded
to each complaining party for future pecuniary losses, emotional pain,
suffering, inconvenience, mental anguish, loss of enjoyment of life, and
other nonpecuniary losses, according to the number of persons employed
by the respondent employer. The limit for an employer with more than 500
employees, such as the agency, is $300,000. 42 U.S.C. � 1981a(b)(3)(D).
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); 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. 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. Future pecuniary losses are losses that are
likely to occur after resolution of a complaint. Id. at 9. Nonpecuniary
losses are losses that are not subject to precise quantification,
including emotional pain, suffering, inconvenience, mental anguish, loss
of enjoyment of life, injury to professional standing, injury to character
and reputation, injury to credit standing, and loss of health. Id.
As an initial matter, we note that when a discriminatory practice
involves denial of a reasonable accommodation, damages may be awarded
if the agency fails to demonstrate that it made a good faith effort
to provide the individual with a reasonable accommodation for her
disability. 42 U.S.C. � 1981a (a)(3); Morris v. Department of Defense,
EEOC Appeal No. 01962984 (October 1, 1998). Here, the record supports
the AJ's finding that the agency did not make a good faith effort to
provide complainant with a reasonable accommodation for her knee injury.
Complainant's accessible parking spot was removed for several months,
and the agency refused to consider complainant's medical documentation
as sufficient until she fell and re-injured her knee.
In her statement prepared for the supplemental investigation,
complainant reports that the specific time frame of emotional distress
suffered occurred from October 1996 until January 1997, and continues.
Complainant averred that her emotional distress began when, in 1996,
the new Postmaster came to the facility. She reported withdrawing from
family and friends, and being unable to keep up with her regular physical
activity, or travel for any length of time. Complainant also reports
feeling depressed, anxious, forgetful, and having family and marital
problems, as well as financial difficulties. Complainant states that
she began seeing a psychiatrist in January 1997, and took 30-50 mg. of
Prozac daily. Furthermore, she submitted bills for physical therapy
and rehabilitative services.
After a review of complainant's statements, as well as statements from
her mother and husband, the record reveals that complainant began to
suffer emotional distress beginning in 1996, when the harassment from
the new Postmaster began. We note that the Commission has stated that
the complainant's testimony alone may be sufficient to establish mental
distress. EEOC Enforcement Guidance: Compensatory and Punitive Damages
Available under �102 of the Civil Rights Act of 1991 (July 14, 1992)
at 12.
Having said that, we are unable to determine that all of complainant's
emotional distress and physical injury is due to the agency's failure
to accommodate complainant's disability by providing her with a parking
spot close to her building. Indeed, in her own statement, complainant
attributes much of her emotional distress and out of pocket expenses to
her January 1997 fall where she re-injured her knee. Although complainant
states that the injury was caused by the agency's failure to accommodate,
we do not find sufficient evidence to support that assertion. In that
regard, we note that the record reveals complainant fell from her
car onto the icy ground immediately as she stepped out of the door.
The record also reveals that complainant suffered from a prior knee
injury which was found to have been aggravated during the fall. Finally,
there is no medical information in the record that would indicate that
complainant's fall was due to the agency's failure to accommodate.
Complainant continued her discussion of emotional distress and
financial difficulties by describing the effects of a postal service
inspector investigation which resulted in her termination in April 1998.
In addition, complainant failed to include any medical reports from her
psychiatrist, other than a cumulative bill. As such, we cannot determine
if complainant began to see the psychiatrist because of emotional distress
related to the agency's failure to accommodate, or because of her other
difficulties with the agency. In her brief on appeal, complainant's
attorney only reiterated the merits of the case and requests $500,000
in compensatory damages.
A number of Commission decisions have awarded non-pecuniary compensatory
damages in cases which we compare to complainant's. Lawrence v. Postal
Service, EEOC Appeal No. 01952288 (April 18, 1996) ($3,000 in damages
where complainant presented primarily non-medical evidence that
she was irritable, experienced anxiety attacks, and was shunned by
her co-workers); White v. Department of Veteran's Affairs, EEOC No,
01950342 (June 13, 1997) ($5,000 awarded for emotional distress which
included depression, emotional fatigue, nightmares, and insomnia that
were related to hostile environment lasting approximately a year and a
half); Bensen v. Department of Agriculture, EEOC No. 01952854 (June 26,
1994) ($5,000 awarded complainant; his relatives and colleagues offered
testimony regarding embarrassment and humiliation complainant suffered
at work as a result of denial of promotional opportunities, suspension,
and other adverse actions); Bever v. Department of Agriculture, EEOC
Appeal No. 01953949 (October 31, 1996); Connor v. Dept. of the Navy,
EEOC Appeal No. 01996212 (February 14, 2002)($5,000 for frustration,
aggravation, humiliation due to agency's failure to provide effective
access to men's restroom due to disability). Therefore, after a review
of the record, as well as Commission precedent, we find that $2,500 is
sufficient to compensate complainant for her emotional distress suffered
as a result of the agency's failure to accommodate. This award is meant
to compensate complainant for any emotional distress suffered up to and
until her knee injury in January 1997.
Accordingly, we REVERSE the agency's final action, and direct the agency
to comply with the ORDER below.
ORDER
Within thirty (30) calendar days from the date this decision becomes
final, the agency shall pay complainant $2,500 in non-pecuniary damages
for emotional distress.
In accordance with the paragraph below, the agency shall pay complainant's
reasonable attorney's fees, including those expended for the instant
appeal.
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 back pay 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
3/6/03
Date
1In April 1998, complainant was issued a Notice of Removal for falsifying
Form CA-8, Claim for Continuing Compensation on Account of Disability.
The record reveals complainant filed an EEO complaint and union grievance
over the matter. There is no record of the status of her EEO complaint.
An arbitrator determined complainant was terminated for just cause.