04990023
03-31-2000
Petitioner, ) Petition No. 04990023
Robert Hart v. United States Postal Service
04990023
March 31, 2000
Robert Hart, )
Petitioner, ) Petition No. 04990023
) Appeal No. 01960784
v. ) Agency No. 1F-1775-93
) Hearing No. 340-94-3719X
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
(Pacific/West Region), )
Agency. )
____________________________________)
DECISION
On December 27, 1999, petitioner filed a Petition for Enforcement of
the Order set forth in Hart v. United States Postal Service, EEOC Appeal
No. 01960784 (August 4, 1998). In the Order, the Commission directed the
agency to redress petitioner following a finding that agency officials
had discriminated against him based on his sex and race/color (Black)
in violation of Title VII of the Civil Rights Act of 1964, as amended,
42 U.S.C. � 2000e et seq.<1> This petition for enforcement is accepted
pursuant to the provisions of 29 C.F.R. � 1614.503.
ISSUE PRESENTED
The issue presented is whether the record adequately establishes that
the agency has: (1) awarded petitioner the correct amount of back pay
and interest due; (2) conducted training for responsible officials; (3)
complied with the provisions of 64 Fed. Reg. 37,644, 37,659-60 (1999)(to
be codified at and hereinafter referred to as 29 C.F.R. � 1614.501(e))
governing the reimbursement of any attorney's fees incurred; and (4)
properly determined the amount of compensatory damages due.
BACKGROUND
In his complaint, petitioner alleged that he was discriminated against
when he was issued a fourteen day suspension in June 1993. After the
agency accepted and investigated the complaint, petitioner requested a
hearing before an EEOC Administrative Judge ("AJ"). Thereafter, the AJ
issued a recommended decision ("RD") finding that petitioner was subjected
to discrimination based on his sex and race. The agency rejected this
finding of discrimination in its FAD. Petitioner timely appealed.
In our decision on the appeal, the Commission found no reason to disturb
the AJ's finding that petitioner was subjected to discrimination.
To remedy petitioner for this discrimination, the agency was ordered
to: (1) rescind the suspension and expunge all reference to it from
petitioner's personnel records; (2) issue petitioner a check for all back
pay and other benefits (with interest) lost as a result of the suspension;
(3) provide training to the responsible officials; (4) "determine the
amount of compensatory damages to which [petitioner] may be entitled
[by affording petitioner] sixty days to submit any additional evidence
in support of his claim [and issuing] a final decision determining [his]
entitlement to" such damages within thirty days after receipt of his
submission; (5) post copies of an attached notice; (5) pay petitioner's
reasonable attorney's fees; and (6) submit a report of compliance.
Thereafter, the agency: (1) rescinded the suspension and expunged all
reference to it from petitioner's personnel records; (2) paid petitioner
for forty hours of straight pay and eight hours of Sunday premium pay;
(3) provided training to eight officials; (4) advised petitioner by
letters dated September 16, October 26, and October 28, 1998, that
he had sixty days in which to submit objective evidence in support of
his claim for compensatory damages, and on February 23, 1999, issued a
FAD finding that petitioner had not established his entitlement to any
compensatory damages; (5) posted the notice; and (6) submitted various
reports of compliance documenting the foregoing actions.
As a preliminary matter, the Commission notes that the agency has not
filed comments on this petition. Thus, the record consists of various
submissions from petitioner and the agency to the Commission's Compliance
Officer. Neither party has summarized its position in any single document
and, thus, the Commission interprets their positions as follows.
The record reflects that petitioner protested that the agency had
neither paid him any interest on his back pay award nor compensated him
for benefits lost, particularly including sick leave lost as a result
of the suspension. Petitioner also protested the agency's action in
issuing the back pay by an adjustment to his paycheck, rather than by
separate check. Because he did not receive a separate check, petitioner
states that he did not receive evidence of the method of computation and a
summary of the calculations used to determine the amount of back pay.<2>
The agency acknowledged that it neglected to award the interest due on
the back pay but asserted that its method of payment and the accompanying
paperwork were adequate to document the calculation of the back pay award.
The agency further asserted that the back pay amount was the same as
petitioner received in 1995, when the suspension was reduced to seven
days through the grievance procedure.
With respect to the interest, the record contains a memorandum dated
January 8, 1999 from a Labor Relations Specialist which states that
petitioner was presented with a check dated December 2, 1998, in the
amount of $181.77 and that petitioner refused to accept the check.
A five page document entitled "Back Pay Interest Calculation" reflects
that the agency calculated the interest due on a gross amount of $626.01
and a net amount of $573.34 from 1993 through November 1998, at rates
ranging from 3.36% to 8.06%, for a total of $181.77. In response,
petitioner states that he refused to accept that check because he
was instructed that if he accepted it, he would forfeit his right to
contest its sufficiency before this Commission. Petitioner questions
the various interest rates and the agency's method of compounding the
interest. Petitioner also encloses a copy of a second check from the
agency, dated January 11, 1999, in the amount of $626.01. Like the
first check, this check is attached to a "Remittance Advice" which
states that it "represents payment for �interest on back pay award' for
appeal #01960784." Petitioner queries why the agency would prepare two
checks for different amounts and present them to him at different times.
The Commission notes that the agency has not submitted an explanation.
The Commission finds it confusing that the second check which purports to
represent interest exactly matches the gross amount of back pay calculated
to be due. In addition, the Commission notes that it is unclear whether
petitioner received interest on the back pay he originally received in
1995, through the grievance procedure.
With respect to the training, the agency submitted two (2) sheets of paper
entitled "EEO Sensitivity Training" which were signed and dated by a total
of eight officials. Petitioner protests that this evidence is inadequate
and asserts that one official did not, in fact, attend the training.
Petitioner also appears to assert that he incurred attorney fees
which were not reimbursed. In this regard, petitioner submitted an
undated portion of a letter from one attorney referring to a retainer
of $1,500.00 and noting that the attorney would require payment of an
additional $1,500.00. A letter dated May 30, 1994 from a second attorney
to a third attorney requests a copy of petitioner's file. Another letter
dated July 20, 1994 from this second attorney to petitioner states that
the attorney no longer represents petitioner.
We now turn to the Commission's Order that the agency "determine the
amount of compensatory damages to which [petitioner] may be entitled
[by affording petitioner] sixty days to submit any additional evidence
in support of his claim [and issuing] a final decision determining
[his] entitlement to" such damages within thirty days after receipt of
his submission. The record reflects that the agency first requested that
petitioner submit documentation to support his entitlement to compensatory
damages by letter dated September 16, 1998. By letters dated October 26,
and 28, 1998, the agency again requested "objective evidence" in support
of his claim and provided petitioner with an investigative affidavit and
questionnaire seeking information on various aspects of his physical and
psychological condition. By letter dated November 4, 1998, petitioner
responded that he did "not agree" that he had to submit "objective
evidence," noting that the Commission's Order only referenced "any
additional information." Petitioner also asserted that he was entitled
to punitive damages. By letter dated November 9, 1998, petitioner stated
that he had just received the Commission's decision on his appeal and,
therefore, the decision was not binding for another 30 days.
In a FAD dated February 23, 1999, the agency found that petitioner
had failed to submit any information in response to its requests and,
thus, there was no "documentary evidence to substantiate his claims
for hardship, pain, suffering, expenses and time lost." Accordingly,
the agency found that he was not entitled to any compensatory damages.
Before the Commission, petitioner appears to assert that the agency's
Senior EEO Complaints Processing Specialist should not have been
involved in determining the amount of compensatory damages due.
Petitioner complains that the Commission's Order did not allow for a
"supplementary investigation" into the compensatory damages due but
only permitted him to submit additional evidence. Petitioner submits a
copy of a certified mail receipt reflecting that he mailed information
to the agency which was received on January 25, 1999. This information
consists of numerous medical documentation, forms and receipts pertaining
to treatment for various conditions, including acne, bronchoscopies and
stress. All or most of such treatment occurred during 1996. In addition,
petitioner submitted a one paragraph statement asserting his entitlement
to punitive damages and a second one paragraph statement asserting that
he had suffered "emotional pain, ... inconvenience, mental anguish, loss
of enjoyment of life, injury to character, and humiliation, emotional
distress, stress, depression, humiliation [and] been under stress for
3 years after serving [the] suspension [with such injuries being the]
proximate results of the agency's negligent conduct [which] caused [him]
great mental distress and pain and suffering." Petitioner also included
a copy of his formal EEO complaint, in which he sought "hardship pain
and suffering at the [maximum]."
ANALYSIS AND FINDINGS
The Commission finds that the record is inadequate to establish that the
agency has properly calculated the back pay or interest due petitioner.
Accordingly, the agency shall comply with the Order below. The Commission
notes that it would have been more expedient had the agency filed
comments on the petition which addressed the issues raised by petitioner
and included information on how the various interest rates were set,
the method of compounding used, whether petitioner received interest on
the back pay previously received in 1995, and why the record contains
copies of two checks each purporting to represent the interest due.
In addition, the Commission advises the agency that it is improper to
make the release of sums which the agency concedes to be rightfully
due contingent upon an EEO complainant's waiver of his or her right to
challenge the award before the Commission. Such an action is tantamount
to interference with the EEO process.
With respect to the prior Order's direction that the agency provide
training to the responsible officials, the Commission is not persuaded
by petitioner's bare assertion that one of the officials did not in fact
attend the training. The Commission finds that the agency's submission
of a copy of a letter from the agency's EEO Counselor/Investigator to its
EEO Compliance Officer, which states that such training was conducted and
which attached sheets signed and dated by eight officials, was sufficient
to establish that the agency complied with this aspect of our prior Order.
Insofar as petitioner claims that the agency failed to pay his reasonable
attorney's fees, the Commission notes that our Regulations require a
federal agency to award attorney's fees, in accordance with existing
law, for the successful processing of an EEO complaint. 29 C.F.R. �
1614.501(e). However, the attorney requesting the fee award has the
burden of proving, by specific evidence, his or her entitlement to
the requested fees and costs. See Copeland v. Marshall, 641 F.2d 880
(D.C. Cir. 1983). Accordingly, our prior Order instructed in pertinent
part that petitioner's attorney must "submit a verified statement of fees
to the agency." There is no indication in the record that such a verified
statement was submitted. Moreover, petitioner failed to submit copies of
canceled checks or any other documentation establishing that he in fact
paid any attorney's fees. Accordingly, the Commission finds no evidence
that the agency has failed to comply with this aspect of our prior Order.
The Commission now addresses petitioner's challenge to the agency's
denial of an award for compensatory damages. Section 102(a) of the
1991 Civil Rights Act authorizes an award of compensatory damages for
all post-Act pecuniary losses, and for nonpecuniary losses, such as, but
not limited to, emotional pain, suffering, inconvenience, mental anguish,
loss of enjoyment of life, injury to character and reputation, and loss
of health. In West v. Gibson, 119 S.Ct. 1906 (1999), the United States
Supreme Court found that Congress afforded the Commission the authority
to award such damages in the administrative process. 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. 01934157
(July 22, 1994), req. for reconsid. denied, EEOC Request No. 05940927
(December 11, 1995); Compensatory and Punitive Damages Available Under
Section 102 of the Civil Rights Act of 1991, EEOC Notice No. 915.002 at
11-12, 14 (July 14, 1992). A complainant is required to provide objective
evidence that will allow an agency to assess the merits of the request
for emotional distress damages. See Carle v. Department of the Navy,
EEOC Appeal No. 01922369 (January 5, 1993).
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). Nonpecuniary and future pecuniary damages
are limited to an amount of $300,000.00. 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).
We note that at the hearing, petitioner did not present any evidence
or testimony pertaining to emotional harm suffered as a result of the
agency's discrimination. We find that petitioner's failure to do so
must be attributed to the AJ's instruction that, should he prevail on
his claim of discrimination, he would receive a supplementary hearing
on the issue of damages. See Hearing Transcript at 220. In addition,
the RD stated that "compensatory damages [were] to be determined at a
hearing to be arranged." However, no such hearing was in fact arranged.
Nonetheless, petitioner was afforded the opportunity to present evidence
and testimony in accordance with our prior Order, which provided that
petitioner had sixty days to submit any additional evidence in support
of his claim.
Petitioner did not submit information within sixty days after receiving
the agency's requests for information dated September 16, October 26,
and October 28, 1998. Instead, he asserted that the time period in
he was required to submit such information did not begin until thirty
days after he received the Commission's decision on his appeal.<3>
Petitioner also challenged the agency personnel involved in making
the determination, its method of gathering the information and its
characterization of the type of information sought. In its decision on
compensatory damages, the agency found that petitioner did not respond to
its requests for information. However, the record before the Commission
reflects that petitioner in fact mailed his response on January 21,
1999 and that the agency received the response on January 25, 1999.
Inasmuch as the agency did not file comments disputing petitioner's
submissions to the Commission, the Commission finds that the agency
received petitioner's response nearly a month prior to its issuance of
its decision on compensatory damages. Accordingly, the Commission finds
that the agency erred in failing to consider petitioner's submission.
Accordingly, the Commission will now consider the material petitioner
submitted to the agency in support of his claim for compensatory
damages. With respect to the medical information, the Commission finds
that petitioner failed to establish a nexus between his treatment for
various aliments in 1996 and his suspension in 1993. While such medical
information indicates that petitioner suffered from stress, given the
passage of some three years between petitioner's two week suspension
and his treatment for stress, the Commission declines to presume the
existence of a causal connection between the suspension and the stress.
Insofar as petitioner filed a statement asserting that punitive
damages were warranted, Section 102(a)(3) of the Civil Rights Act of
1991 specifically disallows such damages against a government entity.
Therefore, punitive damages are not available against the agency.
Richardson v. United States Postal Service, EEOC Appeal No. 01930624
(August 9, 1994); Jackson v. United States Postal Service, EEOC Appeal
No. 01923399 (Nov. 12, 1992), aff'd, EEOC Request No. 05930306 (Feb. 1,
1993).
Petitioner also submitted a statement as to the effect the discrimination
had on his mental health. Petitioner stated that he experienced emotional
pain, inconvenience, mental anguish, loss of enjoyment of life, injury
to character, humiliation, emotional distress, stress and depression
as a result of the suspension. We find that this uncontroverted
evidence establishes petitioner's entitlement to compensatory damages.
See Sinott v. Department of Defense, EEOC Appeal No. 01952872 (September
19, 1996)(stating that a complainant's own testimony, along with the
circumstances of a particular case, can establish mental or emotional
harm).
Several Commission decisions have awarded compensatory damages in
cases somewhat similar to petitioner's. Yates v. United States Postal
Service, EEOC Appeal No. 01973250 (March 11, 1999)($1,500 in nonpecuniary
damages where the petitioner provided only sparse statements during
the hearing regarding his emotional distress); Pailin v. Department
of Defense, EEOC Appeal No. 019514350 (January 26, 1998)($2,500.00 in
nonpecuniary damages where the petitioner was denied training on the
basis of race, and testified that she experienced tension, depression,
and withdrawal from coworkers); DeMeuse v. United States Postal Service,
EEOC Appeal No. 01950324 (May 22, 1997)($1,500.00 in nonpecuniary damages
where the petitioner was frisked by a supervisor, and testified as to
exacerbation of post-traumatic stress disorder); Lawrence v. United States
Postal Service, EEOC Appeal No. 01952288 (April 18, 1996)($3,000.00 in
nonpecuniary damages for sexual harassment where the petitioner presented
primarily non-medical evidence that she was irritable, experienced
anxiety attacks, and was shunned by her co-workers); Benson v. Department
of Agriculture, EEOC Appeal No. 01952854 (June 27, 1996)($5,000.00
in nonpecuniary damages where the petitioner, his relatives, and his
colleagues offered testimony regarding the embarrassment and humiliation
petitioner suffered as a result of discrimination).
In the present case, the only evidence concerning emotional or mental harm
come from petitioner's brief and conclusory statement. While we find
petitioner's statement credible, we also find that this evidence does
not rise to the level of severity meriting a large nonpecuniary award.
The Commission generally awards large nonpecuniary awards in cases
where severe emotional harm and/or a long-term injury is established.
See Finlay v. United States Postal Service, EEOC Appeal No. 01942985
(April 29, 1997) ($100,000 in nonpecuniary damages for severe
psychological injury over four years which was expected to continue
for an indeterminate period of time.); Wallis v. United States Postal
Service, EEOC Appeal No. 01950510 (November 13, 1995) ($50,000.00 in
nonpecuniary damages for aggravation of pre-existing emotional condition,
where effects were expected to last at least seven years). Based on the
foregoing evidence which establishes the stress and emotional discomfort
sustained by petitioner and upon consideration of damage awards reached
in comparable cases, the Commission finds that petitioner is entitled
to award of nonpecuniary damages in the amount of $1,000.00.
CONCLUSION
For the reasons set forth above, the Commission finds that the record
adequately establishes that the agency has: (1) conducted training
for relevant officials; and (2) complied with the provisions of 29
C.F.R. � 1614.501(e) with respect to the reimbursement of any attorney's
fees petitioner may have incurred. Accordingly, the Petition for
Enforcement is DENIED as to these claims. However, the Commission
finds that the record is inadequate to determine whether the agency has
awarded petitioner the correct amount of back pay and interest due and
further finds that the agency failed to properly determine the amount
of compensatory damages due. Accordingly, the Petition for Enforcement
is GRANTED as to these claims, and the agency shall comply with the
Order below.
ORDER
Within thirty (30) days after this decision becomes final, the agency
is ORDERED to issue to petitioner a statement which clearly sets forth:
(1) the method of computation and a summary of the calculations used to
determine the amount of back pay awarded; (2) whether petitioner has been
credited with leave which he would have earned but for the suspension;
(3) the source of the interest rates and method of compounding used to
determine the interest award; (4) a calculation of the amount of interest
to be awarded; and (5) whether petitioner previously received an award
of interest on the portion of the back pay received earlier through the
grievance process and, if not, a calculation of the interest due on that
portion. Within sixty (60) days after this decision becomes final, the
agency shall issue petitioner a check or checks for the undisputed amount
of such interest and for $1,000 in payment of the compensatory damages.
A copy of the agency's statement to petitioner and a copy of the check(s)
must be sent to the Compliance Officer as referenced below.
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 PETITIONER'S RIGHTS ON PETITION FOR ENFORCEMENT
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (T1199)
This decision affirms the agency's final decision/action in part, but it
also requires the agency to continue its administrative processing of a
portion of your complaint. 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 on both that portion
of your complaint which the Commission has affirmed AND that portion
of the complaint which has been remanded for continued administrative
processing. 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 your appeal with the Commission, until
such time as the agency issues its final decision on your complaint.
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:
March 31, 2000
Date Carlton M. Hadden, Acting Director
Office of Federal Operations
1 On 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. The regulations, as amended, may also be found at the
Commission's website at WWW.EEOC.GOV.
2 It appears that in 1995, petitioner had the original fourteen day
suspension reduced to a seven day suspension through the arbitration
process, and petitioner does not challenge the agency's action in
compensating him for only forty hours of straight pay and eight hours
of Sunday premium pay.
3 The Commission's records do not indicate the date on which petitioner
received the prior decision. In his letter to the agency dated November
9, 1998, petitioner stated only that he had "just" received the decision.