01A31159
02-05-2004
Keith L. Kloock, Complainant, v. John E. Potter, Postmaster General, United States Postal Service (Great Lakes Area), Agency.
Keith L. Kloock v. United States Postal Service
01A31159
February 5, 2004
.
Keith L. Kloock,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service
(Great Lakes Area),
Agency.
Appeal No. 01A31159
Agency No. 4J-481-1025-96
Hearing Nos. 230-96-4061X & 230-96-4062X
DECISION
Complainant timely initiated an appeal from a final agency decision
(FAD) concerning his claim of compensatory damages which arose from
his complaint of unlawful employment discrimination in violation of
Title VII of the Civil Rights Act of 1964 (Title VII), as amended, 42
U.S.C. � 2000e et seq. and Section 501 of the Rehabilitation Act of 1973
(Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq.<1> The appeal
is accepted pursuant to 29 C.F.R. � 1614.405. For the following reasons,
the Commission MODIFIES the agency's final decision.
Background
The record reveals that during the relevant time, complainant was
employed as a City Carrier, PS-05, at the Wyandote, Michigan Post Office.
Complainant sought EEO counseling and subsequently filed formal complaints
on March 13 and April 24, 1995, alleging that he was discriminated
against on the bases of his disability (herniated disc) and reprisal
(prior EEO activity), when: (1) in December 1994, he was informed that he
was denied the right to continue holding Utility Route U-6 for failing to
provide medical certification; and (2) on January 11, 1995, he received
a notice of removal for alleged failure to follow instructions and being
absent without official leave (AWOL).
In April 1991, complainant suffered an on-the-job injury to his back,
which was diagnosed as a disc herniation at the L4-L5 level. He also had
two previous work-related back injuries. On March 27, 1992, complainant
suffered further injury to his back while sorting flats. In February
1994, the Office of Workers' Compensation Program (OWCP) sent complainant
for a routine second opinion examination regarding the March 1992 injury.
The OWCP thereafter terminated complainant's benefits related to the
March 1992 injury. On May 21, 1994, complainant's supervisor (S1)
advised him that as a result of OWCP's actions, he would no longer be
allowed to return to duty without first providing medical documentation
from his attending physician stating the diagnosis and prognosis of his
condition, as well as any job restrictions that might prevent him from
performing the full duties of the city letter carrier. If complainant
had any medical restrictions, he was instructed to apply for �light�
(not �limited� duty) duty assignment. Complainant was ordered not to
work until he complied with these two requirements. Complainant's union
representative intervened and argued that complainant's 1991 injury was
still an accepted OWCP claim, and because of this fact, complainant was
entitled to retain his limited duty status/position. In addition, on May
24, 1994, complainant provided the agency with medical documentation
which S1 found to be insufficient. On June 1, 1994, complainant
attempted to return to work, but was informed that he could only return
in a light duty status upon providing current medical certification.
In December 1994, complainant was still precluded from working and was
informed that he was being denied the right to continue to hold his
bid position on Route U-6 and the position was being reposted because
complainant had failed to provide appropriate medical certification
indicating that he could perform the position. On January 11, 1995,
the agency terminated complainant for being AWOL, for failure to follow
instructions to provide the agency with proper medical certification,
and to report to his fitness-for-duty examination.
After a hearing, the AJ found, inter alia, that the agency offered
no legitimate explanation for the supervisor's �crusade� to remove
complainant from limited duty status, force him to request light duty
and submit medical documentation to support that request. The AJ
further held that the evidence supported appellant's position that he
was entitled to limited duty status, and if he requested a �light� duty
position he would place himself in the precarious position of losing the
guaranteed right to full-time pay. The AJ concluded that the evidence
pointed to discrimination as the reason for the supervisor's actions,
including denying complainant the opportunity to return to work and then
placing him on AWOL and eventually removing him from his position.
The agency rejected the AJ's decision. The Commission reversed the
agency's decision on appeal and affirmed the AJ's decision and ordered the
agency to conduct a supplemental investigation pertaining to complainant's
entitlement to compensatory damages, among other things. See See Kloock
v. United States Postal Service, EEOC Appeal No. 01972840 (December 10,
1998). The agency did not seek reconsideration of our decision.
In addition, in a subsequent complaint complainant alleged that the
agency discriminated against him, in violation of Title VII and the
Rehabilitation Act, on the bases of disability (herniated disc) and
reprisal (prior EEO activity) when, on October 24, 1995, he was issued
a Notice of Separation - Disability. The agency's final decision found
no discrimination. The Commission reversed the agency's final decision
and found that the agency discriminated against complainant on the
basis of disability when it terminated complainant without attempting to
accommodate him. See Kloock v. United States Postal Service, EEOC Appeal
No. 01974955 (September 23, 1999). In that decision, the Commission
failed to specifically order the agency to conduct a supplemental
investigation pertaining to complainant's entitlement to compensatory
damages. The complainant requested reconsideration of the order
seeking clarification on the issue of compensatory damages. Thereafter,
the Commission granted complainant's request for reconsideration and
clarified its decision by specifically ordering the agency to conduct
a supplemental investigation pertaining to complainant's entitlement
to compensatory damages. See Kloock v. United States Postal Service,
EEOC Request No. 05A00047 (April 8, 2002).
Thereafter, the agency conducted a supplemental investigation pertaining
to complainant's entitlement to compensatory damages and on, October
28, 2002, issued a Final Agency Decision on the issue of compensatory
damages, which the complainant herein appeals. On October 28, 2002,
the agency issued its final decision and determined complainant was
entitled to $5,000 in compensatory damages. Complainant seeks $630,000
in non-pecuniary damages and $44,133.30 in pecuniary damages.
Analysis and Findings
Pursuant to Section 102(a) of the Civil Rights Act of 1991, a
complainant who establishes his claim of unlawful discrimination
may receive, in addition to equitable remedies, compensatory damages
for past and future pecuniary losses (i.e., out-of-pocket expenses)
and non-pecuniary losses (i.e., pain and suffering, mental anguish).
42 U.S.C. Section 1981a(b)(3). The Supreme Court has confirmed that the
Commission possesses the legal authority to require federal agencies to
pay compensatory damages. See West v. Gibson, 527 U.S. 212 (1999).
Pecuniary losses are out-of-pocket expenses 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. Past
pecuniary losses are the pecuniary losses that are incurred prior to the
resolution of a complaint via a finding of discrimination, the issuance
of a full-relief offer, or a voluntary settlement. The Commission,
however, requires documentation in support of these expenses, typically
in the form of receipts, bills, or physician's statements. See Minardi
v. United States Postal Service, EEOC Appeal No. 01981955 (October 3,
2000); Gause v. Social Security Administration, EEOC Appeal No. 01972427
(March 8, 2000).
Non-pecuniary damages must be limited to the sums necessary to compensate
the injured party for actual harm, even where the harm is intangible.
The existence, nature, and severity of emotional harm must be proved.
See 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. 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 Jackson v. United States Postal Service, EEOC Appeal No. 019725555
(April 15, 1999), citing Cygnar v. City of Chicago, 865 F.2d 827, 848
(7th Cir. 1989).
Pecuniary Damages
Complainant testified that because he received all his back pay within
one year, he suffered a higher tax burden and required the services of a
tax attorney for the 1999 tax year. Complainant submitted the following
receipts to support his position: (1) Bill from Aulo I. Gonano, Attorney
at Law dated March 30, 2000 totaling $200.00 for tax forms prepared; (2)
Bill from Aulo I. Gonano, Attorney at Law dated July 31, 2000 totaling
$525.00 for consultation of tax preparation; and (3) Bill from Aulo
I. Gonano, Attorney at Law dated July 19, 2000 totaling $1,050.00 for an
opinion on tax preparation. We find that complainant has sufficiently
shown that he incurred costs associated with a heavier tax burden which
resulted from a lump-sum back pay award. See Holler v. Department
of the Navy, EEOC Appeal Nos. 01982627 & 01990407 (August 22, 2001),
citing Kalra v. Department of Transportation, EEOC Appeal No. 01924002
(February 25, 1994).
In March 2000, complainant moved to northern Michigan to cut his living
expenses. With one week's notice, the agency called him back to work to
start on May 1, 2000. Complainant explained in his affidavit that this
forced him to move back to the Detroit area. However, until he could find
permanent lodging, he was forced to live in a motel near work because he
no longer had a place to live within the commuting distance from work.
Accordingly, complainant testified that he spent five weeks at the
Cross Country Inn which cost him $278.46 per week (totaling $1,392.30)
from May 2 through June 5, 2000. Complainant could not find all the
weekly receipts but did find one week's receipt and attached it to his
claim for pecuniary damages. We find that complainant is entitled to the
costs associated with his relocation to the extent they have been properly
documented. Accordingly, we find that complainant is entitled to recover
$278.46, the cost associated with one week at the Cross Country Inn.
Complainant also seeks reimbursement for the costs associated with the
clinical interviews and testing performed by his psychologist (P1)
in July 2000. Complainant submitted a bill from P1 dated July 19,
2000 totaling $650.00. While the agency argues that complainant did
not show how this expense was caused by the discrimination in 1994 and
1995, we disagree. P1's psychological reports, including the July 2000
report, establish a causal connection between complainant's psychological
harm and the agency's discriminatory actions. In addition, there is
no evidence in the record to support the finding that complainant had a
pre-existing psychological condition prior to the discriminatory conduct.
Accordingly, we find that complainant is entitled to $650.00 for the
costs of his psychological testing and treatment to the extent that it
has been documented.
To the extent that complainant claims additional pecuniary damages
not supported by documentary evidence, we find that he is not entitled
to recover such expenses. Accordingly, we find based upon the above
documentation that complainant is entitled to $2,703.46 in pecuniary
damages.
Non-Pecuniary Damages
Complainant submitted evidence of non-pecuniary damages through his
affidavit, as well as affidavits from a friend and his son. In addition,
complainant provided several psychological reports. The uncontroverted
evidence shows that prior to May 1994, complainant was a stable,
well-adjusted and relatively happy individual. Complainant described his
relationship with his son before May 1994 as exceptional and had good
friendships and a rewarding life. Just prior to May 1994, complainant
was in the process of buying a new home and had been pre-approved for
a mortgage. Prior to May 1994, complainant had been very active with
his union and the local youth hockey community.
After complainant was ordered not to return to work in May 1994, his
attempts to buy a home had to be suspended. In addition, his relationship
with his son suffered severe problems. Complainant had been his son's
hockey coach throughout his teens. His son wanted complainant to assist
him in developing a training program that could give him a possibility
of turning professional. Complainant had coached state championship
teams and several players that he had coached had gone on to win Junior
Nationals as well as to play for various colleges and semi-professional
teams. Complainant explained that when his son demonstrated to
him that he was serious about wanting to play professional hockey,
complainant set him up with a practice schedule and pledged his support.
According to complainant, during the summer of 1993, complainant's son
was holding his own against semi-professionals and Division One college
players. Complainant put his son on a rigorous weight training program
and practice schedule through the 1993 - 1994 season. The plan was for
complainant's son to attend semi-professional camps during the summer
of 1994. However, because complainant was ordered not to return to
work, in May 1994 his finances became tight and he became depressed.
Complainant no longer could assist his son with his hockey dreams.
Complainant's relationship with his son greatly deteriorated and he
eventually told his son to leave his home. Complainant states that before
May 1994, he encouraged his son to pursue his dreams and he pledged to
support him. However, complainant feels that at the moment when his
son was succeeding, he let him down.
Complainant also states that he lost his health benefits as a result of
the agency's discriminatory actions. Complainant was very concerned about
his lack of health insurance, since he was at risk of a heart attack
and was unable to afford routine medical examinations. In addition,
complainant states that the physical pain associated with his herniated
disc increased after May 1994, since he was unable to afford chiropractic
care after that time. In August 1994, complainant suffered a relapse
related to the herniated disc and was hospitalized and placed in traction
for three days. According to complainant, chiropractic care could have
greatly reduced the pain associated with the relapse and could have
reduced his recovery time.
Complainant further affirmed that in September 1994, he had to give
up his apartment and reluctantly had to move in with his brother (B1)
in order to preserve his remaining assets. Complainant states that
he was very depressed and his relationship with B1 became strained.
Thereafter, in November 1994, complainant moved in with his other brother
(B2) until May 1995, when he moved back in with B1. Thereafter,
complainant moved into a friend's one-room hunting cabin that had no
running water. In December 1995, complainant moved in with his son.
Complainant felt useless living off his son and sold his last remaining
assets (his 20-acre property) and cashed in his thrift savings account
to pay his own way. According to complainant he had planned to retire
on his 20-acre property some day.
According to a 1999 report by P1, complainant suffered moderate to severe
depression as a result of the agency's adverse treatment. In addition,
complainant was suffering from guilt, despondency, anxiety, sleeplessness,
weight gain and other physical problems.
According to P1, as of July 2002, complainant remains highly depressed,
struggles with his own anger and tendencies to act out such anger,
suffers from a sleep disorder, has been unable to lose weight that he
gained after May 1994, has anticipatory anxiety at work, is on edge,
feels persecuted and is preoccupied with somatic or physical complaints.
In addition, P1 states that complainant's paranoia has increased.
As of July, 2002, P1's prognosis for significant improvement is not
good. According to P1, �given that the symptoms reported in 1999 and
those in 2002 are fairly similar, it suggests that they have become a
rather consistent part of [complainant's] personality make-up and most
resistant to change.� While P1 noted that while �complainant appears
to be better able to cope with [work stresses], some level of clinical
symptomology is likely to remain and a return to pre-morbid functioning
is highly unlikely.� P1 recommended continued psychological treatment
and anti-depressant medication.
As an initial matter, we find that complainant established a causal
connection between the discriminatory action and the resulting harm.
Several witnesses including complainant's psychologist connected
complainant's emotional distress to the agency's adverse employment
actions which began in May 1994.<2>
We also find that complainant presented sufficient evidence establishing
that the agency's actions caused him depression, social withdrawal,
weight gain, anxiety, sleeplessness, feelings of hopelessness, anger,
paranoia, victimization, humiliation, constant fear of unjustified job
loss, loss of self-esteem, severe financial strain, loss of his home and
future home, familial strain, added physical pain associated with his
herniated disc, and the loss of his hockey coach career. In addition,
many of these symptoms lasted for at least 8 years and are expected to
last indefinitely.
There is no precise formula for determining the amount of damages for
non-pecuniary losses, except that the award should reflect the nature and
severity of the harm and the duration or expected duration of the harm.
Loving v. Department of the Treasury, EEOC Appeal No. 01955789 (August 29,
1997). It should likewise be consistent with amounts awarded in similar
cases. Hogeland v. Department of Agriculture, EEOC Appeal No. 01976440
(June 14, 1999).
Upon review of the evidence, and considering the nature and severity
of the harm to complainant, we find that complainant is entitled to
$150,000 in non-pecuniary damages. We find this case most similar to
that of Franklin v. United States Postal Service, EEOC Appeal No. 07A00025
(January 10, 2001) ($150,000 in non-pecuniary damages where discriminatory
constructive discharge resulted in extensive symptoms of emotional
distress, including withdrawal, acting gloomy, purposeless, depression,
inability to find comparable work at comparable salary, marital strain
leading to divorce, humiliation, embarrassment, loss of self-esteem and
shame, but no medical evidence of diagnosis or treatment for depression.);
Mack v. Department of Veteran Affairs, EEOC Appeal No. 01982317 (June
23, 2000) ($185,000 in non-pecuniary damages where complainant was
stripped of all his worldly goods, including his home, which resulted
in his being twice beaten and robbed, succumbing to the lure of illegal
drugs and having increased depression and worsened emphysema requiring
multiple medications); See also Santiago v. Department of the Army,
EEOC Appeal No. 01955684 (October 14, 1998) ($125,000 in non-pecuniary
damages where complainant suffered depression and other emotional and
mental disorders, and severe chest pains and stomach pains, digestive
problems, and incidents of shortness of breath); Cleland v. Department
of Veteran Affairs, EEOC Appeal No. 01970546 (August 9, 2000) (award
of $125,000 in non-pecuniary damages based on physical and emotional
harm for 5 years and expected to continue into the indefinite future);
and Kelly v. Department of Veteran Affairs, EEOC Appeal No. 01951729
(July 29, 1998) ($100,000 awarded where complainant was subjected to
hostile work environment that caused her to develop significant levels of
anxiety, nervousness and depression, which were manifested by nightmares,
cognitive inefficiencies, periods of tearfulness, and suicidal ideation,
and where complainant remained out of work for nearly 3 years); McCann
v. Department of the Air Force, EEOC Appeal No. 01971851 (October 23,
1998 ) ($75,000 awarded where discriminatory discharge caused complainant
significant pain and suffering over four years, including feelings
of psychological numbness, anger, insomnia, depression, flashbacks,
nightmares, intrusive bad thoughts and less confidence on the job, and a
constant fear of unjustified job loss). Accordingly, based upon awards
in similar cases and after considering the nature, severity and duration
of complainant's harm, we find that an award of $150,000 is proper and
not monstrously excessive.
Accordingly, the Commission MODIFIES the agency's final decision and
directs the agency to take corrective action in accordance with this
decision and the ORDER below.
ORDER (C0900)
The agency is ordered to take the following remedial action:
1. To the extent not already done so, within thirty (30) days from
the date this decision becomes final, the agency shall pay complainant
$150,000 in non-pecuniary compensatory damages and $2,703.46 in pecuniary
compensatory damages, with interest.
2. 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 verifying
that the corrective action has been implemented.
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.
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.
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
February 5, 2004
__________________
Date
1 Determining complainant's entitlement to compensatory damages is the
sole issue properly before us herein.
2 We note that the AJ concluded that the evidence pointed to
discrimination as the reason for the supervisor's actions, including
denying complainant the opportunity to return to work starting in May
1994 and then placing him on AWOL status and eventually removing him
from his position.