01A31199
04-28-2004
Michael R. Boone v. United States Postal Service
01A31199
April 28, 2004
.
Michael R. Boone,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A31199
Agency No. 4E-995-1021-95
Hearing No. 260-A1-9181X
DECISION
Complainant initiated an appeal from the agency's final action that
awarded him compensatory damages in the amount of $2,000. This appeal
pertains to the amount of compensatory damages awarded. The appeal is
accepted pursuant to 29 C.F.R. � 1614.405. For the following reasons,
the Commission affirms the agency's final action.
As background, the record reveals that the complainant was an applicant
for a custodial laborer position at the agency's Fairbanks, Alaska
facility. The agency initially selected the complainant but withdrew the
job offer to him, following his medical examination. The complainant filed
an equal employment opportunity (EEO) complaint of unlawful employment
discrimination alleging race, age and disability discrimination.<1>
The Commission ruled in favor of the complainant on the disability
claim in Michael R. Boone v. United States Postal Service, EEOC Appeal
No. 01971754 (March 22, 1999).<2> The Commission remanded the case to
the EEOC's Milwaukee District Office for a determination on compensatory
damages and attorney's fees. The Commission AJ determined that an award of
$2,000 was appropriate. The agency issued a check for the $2,000 award,
without issuing a FAD and also paid attorney's fees.
In this appeal, the complainant argues that the decision is based on an
erroneous factual finding as to the duration of the injury and that the
amount is insufficient because it fails to recognize that the complainant
was frustrated and depressed for several years. The complainant does
not identify a specific amount, but the cases cited pertain to awards
of $25,000 in compensatory damages. In response, the agency argues that
it has complied with the remedial order and that the AJ's decision on
compensatory damages correctly summarized the facts and reached the
appropriate conclusions of law.
We find that the record supports the agency award of $2,000.00. The
hearing evidence on damages consisted of testimony from the complainant,
his wife and his daughter. There was no medical testimony. The testimony
showed that the complainant was angry, frustrated, irritable, withdrawn
and had difficulty sleeping. The complainant did not seek medical help.
The wife's testimony showed that he endured the worse part of the distress
during one summer. The AJ found that the complainant was negatively
affected emotionally for a period of about three to four months with
diminishing depression for a period of about two years. The AJ found
that his emotional condition was back to normal by four months after
the employment denial.
We find that the Commission has awarded compensatory damages in similar
cases involving non-selections. See, e.g., Parnofiello v. Department
of Justice, EEOC Appeal No. 01A04204 (March 30, 2001) ($2,000.00
in non-pecuniary damages based on complainant's statements of the
interference with family relations, anxiety); Harris v. Department of
Agriculture, EEOC Appeal No. 019766746(December 11, 1998)($2,000.00 in
non-pecuniary damages based on complainant's testimony in non-promotion
case regarding his stress, low self-esteem and depression). Moreover, this
is not a denial of promotion where the employee experiences humiliation
and embarrassment or sex harassment at the worksite. The only persons
who knew of the withdrawal of the job offer were the complainant's family.
After a careful review of the record, the Commission finds that the
AJ's findings of fact are -supported by substantial evidence in the
record and that the AJ's decision properly summarized the relevant
facts and referenced the appropriate regulations, policies, and laws.
We discern no basis to disturb the AJ's decision, which the agency
adopted. 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
agency's final decision.
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
April 28, 2004
__________________
Date
1 Complainant alleged discrimination based on disability (40% compensable
veteran and disc disease).
2 The agency filed a motion for reconsideration , which was denied. The
decision in EEOC Appeal No. 01971754 remains the Commission's final
decision on the merits.