01A21849
03-25-2003
Mary F. Presley, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Mary F. Presley v. United States Postal Service
01A21849
March 25, 2003
.
Mary F. Presley,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A21849
Agency No. 1C-441-1086-95
DECISION
Complainant timely initiated an appeal from a final agency decision (FAD)
awarding $2,500.00<1> in compensatory damages following a decision by
the Commission finding that the agency had engaged in unlawful employment
discrimination in violation of Section 501 of the Rehabilitation Act of
1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq., when the
agency denied complainant a reasonable accommodation. See Mary Presley
v. United States Postal Service, EEOC Request No. 05980656 (September
24, 2001). The appeal is accepted pursuant to 29 C.F.R. � 1614.405.
The record reveals that during the relevant time, complainant was
employed as a Distribution Clerk at the agency's General Mail Facility in
Cleveland, Ohio. Due to a wrist injury, complainant was indefinitely
restricted from pushing, lifting over the shoulder, and lifting in
excess of five pounds. She was also restricted to working no more than
four hours per day, with the Office of Workers Compensation providing
wage replacement benefits. However, there was no medical restriction
placed on the number of days she could work per week. The agency denied
complainant the right to work overtime on normal workdays, as well on
her days off during holidays. Management officials stated that since
complainant could only work four hours per day, allowing her to work
overtime on normal workdays would require her to work more than four
hours and would thus be in contravention of her doctor's orders.
Complainant filed a formal complaint and subsequently appealed the
agency's finding of no discrimination to the Commission. In Mary Presley
v. United States Postal Service, EEOC Appeal No. 01962983 (September
24, 2001) we reversed the agency, finding discrimination on the basis
of race. We did not, however, address complainant's claims of sex and
disability discrimination. The agency requested reconsideration and
in Presley v. United States Postal Service, EEOC Request No. 05980656
we granted the agency's request, reversing our prior finding of race
discrimination. We further found, however, that while complainant had not
established a prima facie case of race or sex discrimination, the agency
had discriminated against complainant on the basis of disability when she
was denied the ability to work overtime on holidays. While we found that
the agency articulated a legitimate, nondiscriminatory reason for denying
complainant overtime on normal workdays, such a reason was not credible
when applied to her holiday off days since she had no medical restrictions
limiting the number of days per week that she could work. Having found
discrimination, we ordered the agency to take remedial action, including
calculating the amount of compensatory damages due complainant.
On January 7, 2002, the agency issued another FAD, addressing solely the
issue of compensatory damages. In its FAD, the agency concluded that
complainant had not submitted sufficient supporting evidence of harm,
nor had she shown that any harm incurred was related to the agency's
discriminatory conduct. The agency denied complainant's claim for
pecuniary damages, and awarded the sum of $2,500.00 in non-pecuniary
damages. From this decision,<2> complainant appeals.
As a preliminary matter, we note that the agency is liable solely
for the harm resulting from its discriminatory acts. When we granted
reconsideration and found the agency liable for denial of a reasonable
accommodation, we noted that the agency discriminated against complainant
insofar as she was denied the opportunity to work on her holiday off
days. To the extent complainant suffered emotional harm as a direct
result of being denied overtime on regular workdays, as opposed to
holiday off days, complainant is not entitled to compensation therefor.
Furthermore, much of complainant's evidence of harm addresses physical
and emotional/psychological injuries due to an industrial accident that
occurred at the agency. Under the laws administered by this Commission,
complainant is not entitled to recover for such harm. We do note,
however, that complainant submitted a letter from a physician who stated
that complainant �still becomes frustrated and depressed because the
[agency] continues to refuse her the opportunity to work on holidays.�
ROI p.37, Exhibit C-14. This is the sole piece of timely evidence
specifically addressing the harm due to the agency's discriminatory
action.
We note that, where we have found the agency to be liable for harm similar
to the harm caused by the agency in this case, we have awarded $2,500.00.
See Pailin v. Department of Defense, EEOC Appeal No. 01954350 (January 16,
1998)($2,500.00 awarded where complainant's loss of weight, fatigue, lack
of motivation, sadness, and diminished self-esteem due in part to agency's
action); Wilson v. United States Postal Service, EEOC Appeal No. 01994200
(September 26, 2002)($2,500.00 awarded where only part of complainant's
emotional distress caused by discriminatory acts of the agency).
In considering the appropriate award in this case, we find that
complainant's evidence on the question of her harm was not particularly
specific and offered little indication as to its severity and duration.
For that reason, and based on the aforementioned precedent, we find
that an award of $2,500.00 is sufficient to compensate complainant
for her injuries. This amount takes into account the severity and
the likely duration of the harm done to complainant by the agency's
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; US EEOC v. AIC Security
Investigations, Ltd., 823 F.Supp. 573, 574 (N.D. Ill 1993).
Therefore, after a careful review of the record, including complainant's
contentions on appeal, the agency's response, and arguments and evidence
not specifically addressed in this decision, we affirm the FAD.
ORDER (D0900)
The agency is ordered to take the following remedial action:
Within sixty (60) days of the date on which this decision becomes final,
the agency shall tender to complainant non-pecuniary compensatory damages
in the amount $2,500.00.
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 25, 2003
__________________
Date
1It is not clear that the agency awarded any amount to complainant.
In what is presumably a misprint, the FAD states �the agency non-pecuniary
damages for $2,500.00." FAD, p.5. We assume the FAD intended to state
�the agency awards non-pecuniary damages for $2,500.00.�
2Documentation in the complaint file indicates that the agency has fully
complied with our prior Order. Accordingly, this decision addresses
solely the issue of non-pecuniary compensatory damages.