Ken Leung, Complainant,v.John E. Potter, Postmaster General, United States Postal Service, (Pacific Area), Agency.

Equal Employment Opportunity CommissionOct 8, 2009
0120080685 (E.E.O.C. Oct. 8, 2009)

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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