01974923
08-03-2000
Michael Kearins, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, (Southwest/Southeast Areas), Agency.
Michael Kearins v. United States Postal Service
01974923
August 3, 2000
.
Michael Kearins,
Complainant,
v.
William J. Henderson,
Postmaster General,
United States Postal Service,
(Southwest/Southeast Areas),
Agency.
Appeal No. 01974923
Agency No. 4-G-752-1389-95
Hearing No. 310-96-5385X
DECISION
INTRODUCTION
Complainant timely initiated an appeal to the Equal Employment Opportunity
Commission (Commission or EEOC) from a final agency decision (FAD)
concerning his claim that he was discriminated against, in violation of
Section 501 of the Rehabilitation Act of 1973, as amended, 29 U.S.C. �
791 et seq.<1> In accordance with 64 Fed. Reg. 37,644, 37,659 (1999)
(to be codified at 29 C.F.R. � 1614.405), the complainant's appeal from
the agency's final decision in the above-entitled matter has been accepted
by the Commission.
ISSUE PRESENTED
The issue presented is whether complainant is entitled to an award of
compensatory damages.
BACKGROUND
On October 2, 1995, complainant filed a formal complaint based on
physical disability (ankle impairment) when he was forced to exceed
his medical limitations resulting in a fall that caused shoulder and
right elbow injuries. At the conclusion of the agency investigation,
complainant requested a hearing before an EEOC Administrative Judge (AJ).
Thereafter, a hearing was held on October 28, 1996. On December 3,
1996, the AJ issued a Recommended Decision (RD) finding discrimination
based on disability. Specifically, the AJ found that the agency failed
to show that accommodating complainant's disability would pose an
undue hardship. Additionally, the AJ found that complainant presented
sufficient evidence to show that he incurred compensatory damages and
that these damages were related to the discrimination. She concluded
that complainant �suffered some mental anguish due to being continually
required to exceed his limitations, and the loss of income after he was
injured and before his workers compensation claim was accepted.� The
AJ recommended the following remedies: (1) the posting of a notice
of discrimination; (2) attorney's fees and costs; (3) reimbursement
for any lost pay and medical expenses, with appropriate interest; and
(4) compensatory damages. On February 3, 1997, the agency issued a
final decision, concurring with the AJ's conclusion that complainant
was discriminated against based on disability. The agency adopted the
AJ's recommended relief and stated that it would �fully review [his]
claim for compensatory damages, and process accordingly.�
Thereafter, on March 13, 1997, the agency sent complainant a questionnaire
requesting that he provide information concerning his request for
compensatory damages. Subsequently, the agency received complainant's
response, dated March 30, 1997. In complainant's response he stated,
among other things, that he suffered �from clinical depression,
decreased libido, Chronic Pain Disorder and [a]nxiety, [t]ension and
Stress with unresolved [a]nger and [c]onflict.� Complainant further
reported that he was not sleeping well and suffered headaches and
weight gain. While complainant provided medical reports that outlined
his treatment, no bills were submitted. Further, a report attached to
complainant's responses titled �Mental Health Evaluation� (MHE) stated
that [a] short battery of self administered tests . . . indicate that
[complainant] is experiencing a moderate level of subjective depression
and a moderate level of clinical depression. The MHE also referenced
�[r]ecent stressors� including complainant's �mother's death and his
wife's work-related injury.� No bills were provided for any medical
treatment, nor were there any further psychiatric evaluations. On May 12,
1997, the agency issued a FAD finding that complainant was not entitled
to any compensatory damages for his �mental injury.� Specifically, the
agency concluded that complainant had �not shown one scintilla of evidence
linking the alleged discriminatory act to [his] alleged condition.�
ANALYSIS AND FINDINGS
EEOC Regulation 29 C.F.R. � 1614.110 requires the agency to issue a final
decision within 60 days of receiving the findings and conclusions of
the AJ. In addition, EEOC Regulation 29 C.F.R. � 1614.109(g) provides
in part: �If an agency does not, within 60 days of receipt, reject
or modify the findings and conclusions of the administrative judge,
then the findings and conclusions of the administrative judge, and the
relief ordered shall become the final decision of the agency and the
agency shall notify the complainant of the final decision in accordance
with � 1614.110.� Here, the agency's final decision on the issue of
compensatory damages was issued more than 60 calendar days after its
receipt of the AJ's RD. Accordingly, the agency is bound by the AJ's RD,
and its decision on the compensatory damages is without legal effect.
See Miller v. United States Postal Service, EEOC Appeal No. 01956109
(January 23, 1998); Martin v. Department of the Interior, EEOC Appeal
No. 01931768 (August 5, 1993).<2>
Section 102 (a) of the Civil Rights Act of 1991 (1991 CRA) 105 Stat. 1071,
Pub. L. No. 106-166, codified at 42 U.S.C. � 1981a, authorizes an award
of compensatory damages as part of make-whole relief for intentional
discrimination in violation of Title VII of the Civil Rights Act of 1964,
as amended, and the Rehabilitation Act of 1973, 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 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 individuals employed by the respondent. The limit for a respondent
who has more than 500 employees is $300,000. 42 U.S.C. � 1981a(b)(3)(D).
Compensatory damages are recoverable in the administrative process. See
West v. Gibson, 119 S.Ct. 1906 (1999). Thus, if a complainant has
alleged that he is entitled to compensatory damages and the agency or
the Commission enters a finding of discrimination, the complainant must
be given an opportunity to submit evidence establishing his claim. To
receive an award of compensatory damages, a complainant must demonstrate
that he 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. 01934156 (July 22, 1994), request for reconsideration denied,
EEOC Request No. 05940927 (December 11, 1995); Enforcement Guidance:
Compensatory Damages and Punitive Damages Available Under Section 102
of the Civil Rights Act of 1991, EEOC Notice No. N915.002 at 11-12, 14
(July 14, 1992).
�[C]ompensatory damage awards must be limited to the sums necessary
to compensate [a complainant] for actual harm, even if the harm is
intangible.� Id. at 13 (citing Carter v. Duncan - Higgins, Ltd., 727
F.2d 1225 (D.C. Cir. 1984)). Thus, a compensatory damages award should
reimburse a complainant for proven pecuniary losses, future pecuniary
losses, and nonpecuniary losses.
Past Pecuniary Damages
A complainant may recover past out-of-pocket expenses incurred as a
result of the intentional discrimination. EEOC Notice No. N915.002
at 8. Complainant asserts on appeal that he incurred significant out
of pocket expenses. In the record before the Commission, complainant
has failed to provide more than scant evidence concerning the amount
of his medical bills. The report of investigation shows two receipts
for $5.00 and $9.00 respectively for a visit to complainant's medical
provider and payment for a prescription. The record also contains a
handwritten tally, signed by complainant and dated August 11, 1995,
which sets forth an amount of $31.59 in medical expenses. On appeal,
complainant provided further documentation of receiving orthopedic
treatment, at least through November 9, 1999. While the medical
documentation refers to complainant's right shoulder and right elbow
injury, there is also reference to a neck injury. Additionally, a
medical assessment, dated May 24, 1999 opines that the neck injury is
related to the original shoulder and elbow injuries. However, there is
no information in the record concerning how much medical reimbursement
has already been provided to complainant. In any event, the RD, which we
agree with, specifically found that complainant is due reimbursement for
any medical expenses that he incurred as a result of the discrimination,
with appropriate interest.
In a footnote in the FAD, the agency asserts that complainant can not
seek compensatory damages for his physical injuries and that the award of
Office of Workers Compensation Program (OWCP) benefits �constitute the
government's exclusive liability� to complainant. While complainant
is not entitled to a double recovery, we disagree with the agency's
assertion that OWCP benefits awarded to complainant under the Federal
Employees Compensation Act (FECA) constitute his exclusive remedy for
his physical injuries. In Jackson v. United States Postal Service, EEOC
Request No. 05930306 (February 1, 1993), the Commission held that FECA is
not the exclusive remedy in a case such as the instant one. Specifically,
we held that FECA was designed to ensure that federal employees injured on
the job would receive appropriate medical attention. We further concluded
that FECA, a workers compensation statute, was not intended to preclude a
compensatory damages remedy for victims of intentional discrimination.
Accordingly, we find that complainant is entitled to reimbursement
for those medical expenses and other out-of-pocket expenses directly
attributable to the discrimination that were not covered by OWCP payments.
However, from the present record, the Commission cannot determine the
amount of past pecuniary damages due to complainant. Therefore, we will
remand this matter to afford complainant an opportunity to provide proof
that he did not receive all the reimbursement, medical and otherwise,
to which he is entitled.
Future Pecuniary Damages
We further find that we are unable to make a determination of
complainant's entitlement to an award of future pecuniary damages.
The aforementioned medical documentation states that complainant
is in need of a neurological evaluation and also recommends surgery.
However, the extent to which complainant's neck condition is related to
his original injuries is not apparent. Thus, there is insufficient
information in the record to make an evaluation of the nature,
extent, or duration of any future visits to complainant's medical
provider concerning the injuries attributable to the discrimination.
See Wallis v. United States Postal Service, EEOC Appeal No. 01950510
(November 13, 1995). Therefore, the remand of this matter will afford
complainant an opportunity to show conclusively the extent to which his
neck injury may be related to his original injuries such that he would
be entitled to future pecuniary damages.
Nonpecuniary Damages
An award of compensatory damages for nonpecuniary losses, including
emotional harm, should reflect the extent to which the respondent directly
or proximately caused the harm, and the extent to which other factors
also caused the harm. The Commission has held that evidence from a
health care provider is not a mandatory prerequisite for recovery
of compensatory damages. Carpenter v. Department of Agriculture,
EEOC Appeal No. 01945652 (July 17, 1995). Courts also have held that
�expert testimony ordinarily is not required to ground money damages
for mental anguish or emotional distress.� Sanchez v. Puerto Rico Oil
Co., 37 F.3d 712, 724 (1st Cir. 1994), citing Wulf v. City of Wichita,
883 F.2d 842, 875 (10th Cir. 1989); Busche v. Burkee, 649 F.2d 509, 512
n.12 (7th Cir.), cert. denied, 454 U.S. 897 (1981). A complainant's own
testimony, along with the circumstances of a particular case, can suffice
to sustain his or her burden in this regard. See U.S. v. Balistrieri,
981 F.2d 916, 932 (7th Cir. 1992), cert. denied, 114 S. Ct. 58 (1993)
(housing discrimination). As the court noted in Balistrieri, �[t]he
more inherently degrading or humiliating the defendant's action is, the
more reasonable it is to infer that a person would suffer humiliation or
distress from that action; consequently, somewhat more conclusory evidence
of emotional distress will be acceptable to support an award for emotional
damages.� Nonetheless, the absence of supporting evidence may affect the
amount of damages deemed appropriate in specific cases. Lawrence v. United
States Postal Service, EEOC Appeal No. 01952288 (April 18, 1996).
The AJ found that the evidence of record established that complainant
suffered mental anguish. The AJ based this finding on complainant's
unrebutted testimony that he was subjected to mental stress from
continually being required to exceed his physical limitations and not
having any income after he was injured until he began to receive workers
compensation. Having previously determined that complainant is entitled
to compensatory damages for mental anguish and that the agency is bound by
the AJ's RD, we must next determine the amount of compensatory damages to
be awarded. In determining the amount of a compensatory damages award, we
are guided by the principle that a compensatory damages award is limited
to the sums necessary to compensate complainant for the actual harm caused
by the agency's discriminatory action and attempt to affix a reasonable
dollar value to compensate him for that portion of his emotional distress
that was caused by the discrimination. EEOC Notice No. N915.002 at 13.
There are no definitive rules governing the amount of nonpecuniary damages
to be awarded. However, nonpecuniary damages must be limited to the sums
necessary to compensate the injured party for actual harm, even where
the harm is intangible, see Carter v. Duncan - Higgins, Ltd., 727 F.2d
1225 (D.C. Cir. 1984), and should take into account the severity of the
harm and the length of time that the injured party has suffered the harm.
Carpenter v. Department of Agriculture, EEOC Appeal No. 01945652 (July 17,
1995); EEOC Notice No. N915.002 at 14. The Commission notes that for a
proper award of nonpecuniary damages, 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 Cygnar v. City of Chicago, 865 F.2d 827, 848 (7th
Cir. 1989); EEOC v. AIC Security Investigations, Ltd., 823 F. Supp. 571,
574 (N.D. Ill. 1993).
In several recent decisions the Commission has awarded nonpecuniary
damages for emotional distress or mental anguish. In White v. Department
of Veterans Affairs, EEOC Appeal No. 01950342 (June 13, 1997), the
Commission ordered an award of $5,000.00 in nonpecuniary damages where the
complainant's testimony and his psychologist's report indicated that the
harassment the complainant endured, which took both sexual and nonsexual
forms, led complainant to suffer from anxiety, depression, emotional
fatigue, occasional nightmares, and insomnia. In Benson v. Department
of Agriculture, EEOC Appeal No. 01952854 (June 27, 1996), the Commission
affirmed the agency's award of $5,000.00 in nonpecuniary damages where the
complainant, his relatives, and his colleagues offered testimony regarding
the embarrassment and humiliation that the complainant suffered at work
as a result of the denial of promotional opportunities, a suspension,
and other adverse actions. In Miller v. United States Postal Service,
EEOC Appeal No. 01956109 (January 23, 1998), the Commission ordered
an award of $7,500.00 in nonpecuniary damages where the complainant
produced scant evidence to support his claim and the agency, despite a
request by the Commission, failed to provide a copy of the documentary
evidence that complainant had submitted.
Having carefully considered the facts of this case, the Commission
finds that complainant is entitled to nonpecuniary damages in the
amount of $3,500.00. In reaching this amount, the Commission has
considered a number of factors, including: the nature and severity
of the discrimination, and the nature and severity of complainant's
mental anguish and related symptoms. We also considered that some of
complainant's emotional distress during the relevant time-frame was
attributable to factors not related to the discrimination, such as the
recent death of his mother and the emotional stress associated with
his wife's work-related injury. We also note that complainant failed
to present sufficient evidence concerning his mental anguish to assist
the Commission in arriving at a reasonable amount of damages. The record
contains no psychiatric evaluations or evidence that complainant received
any medications to treat his mental and emotional state. Furthermore,
the MHE provided by complainant mentioned only �moderate� depression and
anxiety. Finally, we considered the amounts awarded in similar cases.
Based on all these considerations, we find that $3,500.00 is a proper
award for the mental anguish which complainant has suffered.
CONCLUSION
Based on a thorough review of the record, and for the foregoing reasons,
it is the decision of the Equal Employment Opportunity Commission to
REVERSE the agency's final decision insofar as it found that complainant
did not establish that he was entitled to compensatory damages for mental
anguish; and award to complainant nonpecuniary compensatory damages in the
amount of $3,500.00, as set forth in the Order of the Commission below.
Furthermore, this case is REMANDED to the agency for a supplemental
investigation as set forth in the Order of the Commission below.
ORDER
The agency is ORDERED to take the following remedial actions:
(1) Within thirty (30) days of the date on which this decision becomes
final, the agency shall conduct a supplemental investigation to determine,
with complainant's cooperation, the extent to which complainant has been
reimbursed for past medical and other out-of-pocket expenses directly
attributable to the disability discrimination (past pecuniary damages).
The agency shall also give further consideration to complainant's claim
for future pecuniary damages incurred as a result of its discrimination.
Complainant shall provide objective evidence/documentation that the
damages in question were a result of the agency's discrimination and
of the amount of the claimed damages. Within thirty (30) days of its
receipt of the subject evidence/documentation, the agency shall calculate
complainant's entitlement to past and future pecuniary damages, pay
the past pecuniary damages for which documentation has been submitted,
and issue a final decision with appropriate appeal rights determining
the amount of future pecuniary damages awarded, if any. A copy of the
agency's final decision and of its letter to complainant forwarding
payment of the compensatory damages, as well as documentation supporting
the calculation and payment of past and future pecuniary damages, must
be sent to the Compliance Officer, as referenced below.
(2) We note that the record does not reflect whether or not the agency
complied with the remaining remedies that were recommended by the
AJ and accepted by the agency in the FAD, dated February 3, 1997.
To the extent it has not already done so, the agency shall implement
the corrective relief ordered by the administrative judge and agreed to
by the agency in the aforementioned FAD, including: (a) the posting of
a notice of discrimination and (b) reimbursement for any lost pay and
medical expenses, with appropriate interest.
(3) Within thirty (30) days of the date on which this decision becomes
final, the agency shall tender to complainant nonpecuniary compensatory
damages in the amount of $3,500.00.
(4) The agency shall pay complainant reasonable attorney's fees and
costs.
(5) The agency is further directed to submit a report of compliance,
including proof that it has provided all the remedial relief provided for
in the Administrative Judge's recommended decision, as provided in the
statement entitled, �Implementation of the Commission's Decision.� The
report shall include evidence that the corrective action has been taken.
POSTING ORDER
To the extent it has not already done so, the agency is ORDERED to post
at its Richardson, Texas, postal facility copies of the attached notice.
Copies of the notice, after being signed by the agency's duly authorized
representative, shall be posted by the agency within thirty (30) calendar
days of the date this decision becomes final, and shall remain posted
for sixty (60) consecutive days, in conspicuous places, including all
places where notices to employees are customarily posted. The agency
shall take reasonable steps to ensure that said notices are not altered,
defaced, or covered by any other material. The original signed notice
is to be submitted to the Compliance Officer at the address cited in
the paragraph entitled �Implementation of the Commission's Decision,�
within ten (10) calendar days of the expiration of the posting period.
ATTORNEY'S FEES (H1092)
If complainant has been represented by an attorney (as defined by 29
C.F.R. � 1614.501(e)(1)(iii)), he or 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 (K1199)
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 64
Fed. Reg. 37,644, 37,659-60 (1999) (to be codified and hereinafter
referred to as 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)(Supp. V 1993). If the complainant files a civil action, the
administrative processing of the complaint, including any petition for
enforcement, will be terminated. See 64 Fed. Reg. 37,644, 37,659 (1999)
(to be codified and hereinafter referred to as 29 C.F.R. � 1614.409).
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0300)
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 64
Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter referred
to as 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 64 Fed. Reg. 37,644, 37,661 (1999) (to be codified and hereinafter
referred to as 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).
COMPLAINANTS' RIGHT TO FILE A CIVIL ACTION
(R0400)
This is a decision requiring the agency to continue its administrative
processing of your complaint. However, if you wish to file a civil
action, you have the right to file such action in an appropriate United
States District Court WITHIN NINETY (90) CALENDAR DAYS from the date
that you receive this decision. In the alternative, you may file a
civil action AFTER ONE HUNDRED AND EIGHTY (180) CALENDAR DAYS of the date
you filed your complaint with the agency, or filed your appeal with the
Commission. 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. 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, Acting Director
Office of Federal Operations
August 3, 2000
__________________
Date
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
An Agency of the United States Government
This Notice is posted pursuant to an Order by the United
States Equal Employment Opportunity Commission dated
which found that a violation of Section 501 of the Rehabilitation Act of
1973, as amended, 29 U.S.C. � 791 et seq., has occurred at this facility.
Federal law requires that there be no discrimination against any
employee or applicant for employment because of the person's RACE,
COLOR, RELIGION, SEX, NATIONAL ORIGIN, AGE, or PHYSICAL or MENTAL
DISABILITY with respect to hiring, firing, promotion, compensation,
or other terms, conditions or privileges of employment.
The United States Postal Service, Richardson, Texas, Post Office
(hereinafter �Richardson Post Office�), supports and will comply with
such Federal law and will not take action against individuals because
they have exercised their rights under law.
The Richardson Post Office, has been found to have discriminated on the
basis of physical disability (ankle impairment) when an individual was
forced to exceed his medical limitations resulting in a fall that caused
shoulder and right elbow injuries. The Richardson Post Office has been
ordered to take corrective action in the form of reimbursement for any
lost pay and medical expenses, with interest; payment of compensatory
damages; and reasonable attorney's fees. The Richardson Post Office
will ensure that officials responsible for personnel decisions and
terms and conditions of employment will abide by the requirements of
all Federal equal employment opportunity laws and will not retaliate
against employees who file EEO complaints.
The Richardson Post Office will not in any manner restrain, interfere,
coerce, or retaliate against any individual who exercises his or her
right to oppose practices made unlawful by, or who participates in
proceedings pursuant to, Federal equal employment opportunity law.
Date Posted: _____________________ _______________________
Posting Expires: _________________
64 Fed. Reg. 37,644, 37,660 (1999) (to be codified and hereinafter
referred to as 29 C.F.R. �1On November 9, 1999, revised regulations
governing the EEOC's federal sector complaint process went into effect.
These regulations apply to all federal sector EEO complaints pending at
any stage in the administrative process. Consequently, the Commission
will apply the revised regulations found at 64 Fed. Reg. 37,644 (1999),
where applicable, in deciding the present appeal. We further note that
the Rehabilitation Act was amended in 1992 to apply the standards in the
Americans with Disabilities Act (ADA) to complaints of discrimination
by federal employees or applicants for employment. Since that time,
the ADA regulations set out at 29 C.F.R. Part 1630 apply to complaints
of disability discrimination. The regulations, as amended, may also
be found at the Commission's website at www.eeoc.gov.
2We note that the issue of whether the agency made a good faith effort
to reasonably accommodate complainant was not raised. Nevertheless,
the record supports a finding that the agency did not make a good faith
effort to abide by the medical restrictions prescribed by complainant's
physician, e.g., no walking or standing more than one hour, and not
exceeding an 8-hour work day. In this regard, we agree with the AJ's
conclusion that the agency failed to show that allowing the complainant
to keep a stool to work from or giving the complainant a mounted route
would have posed an undue hardship. Therefore, complainant is entitled
to an award of compensatory damages. See 42 U.S.C. � 1981a(a)(3).