Michael Kearins, Complainant,v.William J. Henderson, Postmaster General, United States Postal Service, (Southwest/Southeast Areas), Agency.

Equal Employment Opportunity CommissionAug 3, 2000
01974923 (E.E.O.C. Aug. 3, 2000)

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).