0120080685
10-08-2009
Ken Leung, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, (Pacific Area), Agency.
Ken Leung,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
(Pacific Area),
Agency.
Appeal No. 0120080685
Agency No. 1F-908-0002-07
DECISION
On November 26, 2007, complainant filed an appeal from the agency's
October 25, 2007 final decision (FAD) on the issue of compensatory
damages, concerning his equal employment opportunity (EEO) complaint
alleging 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., Section 501 of the Rehabilitation Act of 1973 (Rehabilitation
Act), as amended, 29 U.S.C. � 791 et seq., and the Age Discrimination
in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq.
The appeal is deemed timely and is accepted pursuant to 29 C.F.R. �
1614.405(a). For the following reasons, the Commission MODIFIES the
agency's final decision on compensatory damages.
ISSUE PRESENTED
Whether the FAD's award of compensatory damages is supported by the
evidence of record.
BACKGROUND
On September 15, 2005, complainant filed an EEO complaint alleging that
he was discriminated against on the bases of race (Asian), national origin
(Chinese), disability, and age, when:
(1) from August 23, 2002 through March 21, 2005, the Postmaster disliked
him and on numerous occasions, the Postmaster yelled at him; and
(2) on July 1, 2005, the agency terminated him from his temporary casual
position at the Cupertino, California Post Office.
In a letter dated November 9, 2005, the agency dismissed the first
allegation for untimely EEO Counselor contact and accepted the second
for investigation. At the conclusion of the investigation, complainant
was provided with a copy of the report of investigation and notice of
his right to request a hearing before an EEOC Administrative Judge (AJ).
When complainant did not request a hearing within the time frame provided
in 29 C.F.R. � 1614.108(f), the agency issued a final decision (FAD)
pursuant to 29 C.F.R. � 1614.110(b). The FAD concluded that complainant
had failed to prove that he was subjected to discrimination.
On May 16, 2006, complainant filed an appeal from the agency's April
20, 2006, final decision concerning his equal employment opportunity
(EEO) complaint. In Leung v. United States Postal Serv., EEOC Appeal
No. 0120063435 (June 8, 2007), the Commission issued a decision concluding
that the agency had properly dismissed the first claim, but decided de
novo that complainant had suffered unlawful reprisal-based discrimination
as to his second claim. Accordingly, we remanded the matter to the
agency for further investigation on the compensatory damages issue,
among other things. On October 25, 2007, the agency issued a FAD on
the issue of compensatory damages (FAD2).
FAD2
FAD2 initially noted that for the purpose of analysis, complainant's
compensatory damages, if any, would have accrued subsequent to July 1,
2005 (the date of his termination). FAD2 then found that complainant
submitted a summary of his prescription medication costs from August 2005
until July 2007, amounting in the aggregate to $2,919.98. FAD2 found
that complainant proved entitlement to $2,833.55 in pecuniary damages,
noting that some of the medications for which he requested reimbursement
do not appear to be related to his medical difficulties, as described
in his Affidavit.
FAD2 then addressed the claim for $175,000.00 in non-pecuniary damages,
noting initially that the record shows that complainant had medical
conditions that pre-dated his termination. FAD2 found that evidence
provided by complainant does not make clear how much the termination
caused a worsening of his conditions or how much a worsening might
have occurred without the termination in July 2005. FAD2 found that
nevertheless, complainant testified that he had dizziness, headaches,
loss of sleep and crying spells. He also testified that his conjugal
relationship with his spouse suffered, as did his relationship with
his children. He testified that he worried and could not concentrate
and that he had no "joy, no energy, no desire, no life." FAD2 noted that
complainant's spouse testified that complainant suffered from nightmares
and acted in a hostile manner toward her. She stated that she became
fearful for his safety and that his depression became progressively worse.
In addition, complainant's son testified that complainant "no longer
smiled or laughed or played with me. He became a grumpy, irritable
stranger who would not have anything to do with me."
FAD2 found that the requested amount of $175,000.00 was excessive,
noting that it is clear from the record that complainant began seeing
his doctor in August 2004, a year before his termination. FAD2 found
that it was not clear from the doctor's note in the record, or any other
medical evidence what mental and emotional difficulties or effects on
familial relationships began before July 1, 2005 or to what extent those
pre-existing conditions were exacerbated by complainant's termination,
although some impact can be posited. FAD2 found that complainant was not
rendered unable to work and that there is no evidence that his medical
condition is long-term. Given the evidence in the record, including the
testimony of complainant, his spouse, and his son, the agency determined
that an appropriate award of non-pecuniary damages was $17,000.00.
CONTENTIONS ON APPEAL
On appeal, complainant asserts that FAD2 misquotes and distorts
evidence submitted by complainant's psychiatrist. Complainant notes
that the doctor specifically states that complainant was under her care
"due to his stress related with the mistreatment and being terminated
by his former employer, the post office..." Additionally, he asserts
that the doctor clearly and unequivocally linked his extensive medical
problems with "being terminated by his former employer, the post office."
Complainant also references his wife's testimony which he states clearly
links the discriminatory action with major changes in complainant's
personality, as follows:
Finally, when he was fired, he seemed to become a completely different
person. He became very depressed and irritable. He would become angry
and start screaming without warning. I became fearful for myself and
the children when these outbursts began to include episodes of intense
hostility and anger when he would throw things across the room and break
them.
He began having nightmares and waking up in the night screaming and
sweating. Even when he didn't wake up, I noticed that he was almost
always shaking or restless during sleep.
After a while, his nightmares were so bad that he wouldn't even try to
go back to sleep. He would either lie awake or else go for a walk alone
in the night I was always afraid for his safety when he did this.
His depression became worse and worse as time when [sic] on, especially
when we began having severe money problems and he could not find
work. When we were in danger of losing the house, his mood became so
dark and violent that I lived in constant fear and dread that he would
try to commit suicide.
Complainant claims that he is entitled to compensation for pain and
suffering in the amount of $175,000.00, as well as compensation for
medication in the amount of $2,833.55.1 The agency asks the Commission
to affirm FAD2.
ANALYSIS AND FINDINGS
In West v. Gibson, 527 U.S. 212 (1999), the Supreme Court held that
Congress afforded the Commission the authority to award compensatory
damages in the administrative process. Section 102(a) of the CRA,
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)(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 non-pecuniary 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 herein,
is $300,000.00. 42 U.S.C. � 1981a(b)(3)(D). The particulars of
what relief may be awarded, and what proof is necessary to obtain that
relief, are set forth in detail in Enforcement Guidance: Compensatory and
Punitive Damages Available Under � 102 of the Civil Rights Act of 1991,
EEOC Notice No. 915.002, (July 14, 1992) (Guidance).
Pecuniary Damages
Pecuniary losses are out-of-pocket expenses that are incurred as a
result of the employer's unlawful action, including moving expenses,
medical expanses, psychiatric expenses, physical therapy expenses,
and other quantifiable out-of-pocket expenses. Enforcement Guidance:
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. As complainant requests $2,833.55 in pecuniary damages,
and the agency awarded that exact amount, we AFFIRM FAD2 as to its award
of pecuniary damages.
Non-pecuniary Damages
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). Statements from others, including family
members, friends, and health care providers could address the outward
manifestations of the impact of the discrimination on the complainant. Id.
Complainant could also submit documentation of medical or psychiatric
treatment related to the effects of the discrimination. Id. Non-pecuniary
damages must be limited to the sums necessary to compensate the injured
party for the actual harm and should take into account the severity
of the harm and the length of the time the injured party has suffered
from the harm. Carpenter v. Department of Agriculture, EEOC Appeal
No. 01945652 (July 17, 1995).
In support of his claim for non-pecuniary damages, complainant contends
that the wrongful termination was a life-altering event, that resulted
in extreme and long-lasting emotional distress. See Supplemental
Report of Investigation (SROI), Ex C-8. He states that he suffered
extreme embarrassment that resulted in on-going loss of self esteem;
depression; grief; anguish; anger; stress; weight loss; headaches;
nausea; sleeplessness; suicidal idealization; withdrawal from friends,
co-workers and family; and a general loss of enjoyment of life during the
two years since his wrongful termination. Id. His wife describes the
"loss of face" that he endured, as a Chinese man, who was unemployed.
SROI, Ex. C-9. His son states, among other things: "Then, he was fired
and I think that the whole sky must have fallen on him because he was no
longer my father after that." SROI, Ex. C-11, at 1. In a letter dated
August 3, 2007, complainant's psychiatrist suggests that complainant's
psychiatric problems resulted (at least partially) from the discriminatory
termination, stating: "This letter is to confirm that Mr. Ken Leung has
been under my care since August 3, 2004 due to his stress related with
the mistreatment and being terminated by his former employer, the post
office then [sic]." SROI, Ex. C-5, at 1.
As previously noted, complainant has requested $175,000.00 in
compensatory damages, and the agency found that only $17,000.00 in
non-pecuniary damages are warranted. After a thorough review of the
record, we find that an award of $85,000.00 is appropriate to compensate
complainant for his physical and emotional pain and suffering resulting
from his discriminatory termination.2 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 compensatory
damages determination must be based on the actual harm sustained and
not the facts of the underlying case). The Commission notes that this
award is not "monstrously excessive" standing alone, is not the product
of passion or prejudice, and is consistent with the amount awarded in
similar cases. See Lucas v. Department of Veterans Affairs, EEOC Appeal
No. 0720070051 (January 3, 2008) ($85,000.00 awarded where complainant
showed that the agency's discrimination caused feelings of devastation;
hopelessness; fear; demoralization; and she suffered from sleeplessness
and adverse effects on her marriage); Bahaudin v. Department of the Army,
EEOC Appeal No. 01993594 (September 13, 2000) ($85,000.00 awarded where
complainant produced evidence indicating that the agency's discriminatory
actions caused him to be very irritable; distant; wake up at night and
make sudden jerking movements; not want to go to work; just lay in bed
when he was not working; neglect his home duties; and not eat); Bernard
v. Department of Veterans Affairs, EEOC Appeal No. 01966861 (July 17,
1998) ($80,000.00 awarded in non-pecuniary damages where affidavits
provided by complainant, friends, and co-workers described the emotional
distress that resulted from the agency's discriminatory actions).
CONCLUSION
Based on a thorough review of the record and the contentions on appeal,
including those not specifically addressed herein, we MODIFY the FAD
and find that the agency is required to pay $85,000.00 in non-pecuniary
damages, as well as $2,833.55 in pecuniary damages, for a total of
$87,833.55. The agency shall comply with the Order below.
ORDER (D0403)
Within sixty days of the issuance of the decision, or the date the
decision becomes final, and to the extent that it has not already done so,
the agency is hereby ORDERED to pay complainant $87,833.55 in compensatory
damages.
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 (K0408)
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 77960,
Washington, D.C. 20013. 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 (M1208)
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 77960,
Washington, DC 20013. 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 (S0408)
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 (Z1008)
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 from the Court that
the Court appoint an attorney to represent you and that the Court also
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 with
the Court 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
___10/08/09_______________
Date
1 Complainant also notes that the agency has not complied with other
ordered remedial action. Those matters will not be addressed herein as
they have been docketed as Compliance No. 0620090458, and are currently
under review by a Compliance Officer.
2 The Commission has taken into account that prior to the termination
action complainant was already in treatment for psychiatric problems.
The evidence is very clear, however, that the termination action
significantly exacerbated complainant's mental and emotional state, and
in fact, caused great harm to his relationships with all of his family
members and friends. The record evidence also indicates that the harm
has been long-lasting, for a period of at least two years, if not more.
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0120080685
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120080865
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