01A22780
09-30-2003
Richard C. Velarde, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Richard C. Velarde v. United States Postal Service
01A22780
09-30-03
.
Richard C. Velarde,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A22780
Agency Nos. 4F-926-1175-95; 4F-926-1235-95; 4F-926-0033-97
Hearing Nos. 340-97-3145x; 340-97-3146x; 340-98-3008x
DECISION
Complainant timely initiated an appeal from the agency's final order
concerning the amount of compensatory damages to which complainant
was entitled as a result of a finding of retaliation discrimination.
The appeal is accepted pursuant to 29 C.F.R. � 1614.405. For the
following reasons, the Commission modifies the agency's final order.
ISSUE
Whether $4,500.00 in compensatory damages was an appropriate award for
two retaliatory suspensions issued by the agency in October, 1996.
BACKGROUND
The record reveals that following 17 years of employment as a letter
carrier in the agency's Glendora, California facility, the agency
separated complainant in 1995 for failure to be regular in attendance.
Complainant grieved his discharge, and in 1996, complainant and the
agency settled complainant's grievance; complainant was reinstated to the
agency workforce on September 6, 1996. As found by an Equal Employment
Opportunity Commission (EEOC) administrative judge (AJ), upon his return
to work, the agency retaliated against complainant for previously
participating in protected equal employment opportunity activity, by
suspending him twice in October, 1996. Following his second suspension,
complainant took a leave of absence. In November, 1996, complainant's
psychologist authorized a medical leave of absence. On July 14, 1997,
complainant's doctor concluded complainant was temporarily disabled from
work at the agency and diagnosed complainant with depressive disorder
not otherwise specified; history of herpes zoster; history of tension
headaches; and somatic symptoms of depression. At an unknown time, but
at least by January 15, 2002, complainant retired from federal service
on disability compensation.
In compensation for his claims, complainant claimed $150,000 in front pay;
$30,000 in future medical costs; $10,000 for a Privacy Act violation
where, according to the AJ, complainant's supervisor disclosed to
employees complainant's medical symptoms; $175,000 in nonpecuniary damages
and replacement of complainant's life insurance policy. In support
of his claims, complainant submitted a January 15, 2002 letter from
his psychologist who treated complainant since 1995 for �psychiatric
and psychological symptoms that developed reactive to employment
related stress, including supervisory maltreatment.� The psychologist
wrote that upon his return to work in 1996, because complainant's
supervisors continued to abuse complainant, complainant experienced
reactive psychiatric and psycho-physiological symptoms which ultimately
became disabling when complainant was unable to continue working.
The psychologist stated that in June 2000 when complainant was offered
vocational rehabilitation, complainant's anxiety interfered with memory
and concentration; his sleep was poor resulting in low energy and fatigue;
and complainant's self-confidence was reduced. All of this contributed to
complainant's failure to complete the vocational rehabilitation program.
Complainant's psychologist stated that complainant experienced numerous
losses from the agency's campaign of retaliation: complainant was forced
to resign his 17-year career; he had prolonged periods without income
which devastated him financially, ultimately necessitating bankruptcy.
Financial constraints prevented him from participating in leisure
activities, and he had to sell many personal possessions and borrow
from friends for day-to-day expenses. Complainant's psychologist stated
that complainant continued to be emotionally vulnerable, with markedly
reduced self-confidence and self-esteem, continuing mistrust of others, an
undermined sense of security and fear of having his life shattered again.
At the date of the psychologist's letter in 2002, complainant experienced
a moderate level of depression, occasional sleep disorders because of
worry and reduced energy. Complainant was easily fatigued and socially
withdrawn, and he limited contact with former co-workers. Complainant
derived less pleasure from life, and was less active than before.
During periods of increased stress, complainant experienced physical
symptoms of headaches, shingles, achiness and gastrointestinal distress.
Complainant's immune system was compromised and he became more vulnerable
to recurrent infections. Complainant was apprehensive about the future.
While complainant was capable of returning to the labor market, due
to his impaired memory and concentration, reduced energy and reduced
self-confidence, the psychologist stated that it would not be likely
that complainant could successfully complete retraining.
Complainant's daughter provided a letter which discussed complainant's
focus on his work problems to the exclusion of all else, and asserted
that complainant was withdrawn from his relationship with his daughter
and family. Complainant's companion wrote that following complainant's
return to work in September, 1996, and his supervisors' harassment,
complainant resigned his position and lost interest in his friends and
daughter; he had trouble concentrating and sleeping, appeared tired most
of the time and experienced low self-esteem.
ANALYSIS
Front Pay. Front pay is a claim for equitable relief which can be made
in lieu of reinstatement. Pollard v. E.I. du Pont de Nemours & Co.,
532 U.S. 843, 846 (2003). In her decision, the AJ did not order front
pay, and complainant did not raise the matter of relief on appeal of the
AJ's decision. We conclude that, where complainant had the opportunity
to challenge the AJ's award of equitable relief in his first appeal but
failed to do so, he cannot now raise the issue of equitable relief in
this appeal.
Compensatory Damages.
Compensatory damages may be awarded for the proven past pecuniary losses,
future pecuniary losses, and non-pecuniary losses which are directly or
proximately caused by the agency's discriminatory conduct even if the
harm is intangible. Equal Employment Opportunity Commission Compensatory
and Punitive Damages Available Under Section 102 of the Civil Rights
Act of 1991, EEOC Notice No. 915.002 (July 14, 1992), at 8; Schrahl
v. Department of the Army, EEOC Appeal No. 01961614 (Dec. 15, 1999).
Pecuniary Losses. Pecuniary losses are out-of-pocket expenses that
are incurred as a result of the employer's unlawful action, including:
job-hunting expenses, moving expenses, medical expenses, psychiatric
expenses, physical therapy expenses, and other quantifiable out-of-pocket
expenses. Id. The amount to be awarded for pecuniary losses can be
determined by receipts, records, bills, canceled checks, confirmation by
other individuals, or other proof of actual losses and expenses. Id.
While complainant has asked for $30,000 for future pecuniary losses
(medical costs), he adduced no evidence in support of this claim.
Complainant's failure to prove his losses is fatal to this claim.
Non-pecuniary Losses. Non-pecuniary compensatory damages are designed to
remedy a harm and not to punish the agency for its discriminatory actions.
See Memphis Community School District v. Stachura, 477 U.S. 299, 311-12
(1986) (stating that a compensatory damages determination must be based
on the actual harm sustained and not the facts of the underlying case).
Where a pre-existing emotional condition deteriorates as a result of
the discriminatory conduct, the additional harm may be attributed to the
employer. EEOC Enforcement Guidance: Compensatory and Punitive Damages
Available under � 102 of the Civil Rights Act of 1991 (Jul. 13, 1992);
Wallis v. United States Postal Service, Appeal No. 01950510 (Nov. 13,
1995). The Commission notes that the amount of the non-pecuniary damages
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 Ward-Jenkins v. Department of
the Interior, EEOC Appeal No. 01961483 (Mar. 4, 1999), (citing Cygnar
v. City of Chicago, 865 F.2d 827, 848 (7th Cir. 1989)).
In review of the unrebutted<1> evidence submitted by complainant's
psychologist, daughter and companion, we conclude that an award of
$20,000.00 is appropriate where complainant cannot be compensated for harm
sustained before 1996, and where complainant's 1996 depression resolved to
moderate depression by 2002, but complainant had difficulty concentrating
and had reduced self-confidence; was emotionally vulnerable and fatigued;
was bankrupt, had physical symptoms of increased stress and appeared to be
estranged from his family. See Davis v. Department of Veterans Affairs,
Appeal No. 01A01256 (Mar. 5, 2003) ($20,000 awarded for six years of
injury where complainant sustained severe emotional distress, depression,
and short term memory impairment; she was withdrawn from her family,
had difficulty sleeping, fatigue, irritability, lack of concentration,
sadness and feelings of worthlessness and hopelessness); Wallis v. United
States Postal Service, supra (awarding $50,000 for seven years of
injury including depression, adjustment disorder, sleeping and eating
disorders and sexual apathy); Telles v. United States Postal Service,
Appeal No. 01994535 (Jan. 30, 2002) (awarding $20,000.00 in non-pecuniary
damages for three and one-half years of injury for depression, feelings
of inadequacy and failure, loss of credit due to bankruptcy, and marital
problems); Colwell v. United States Postal Service, Appeal No. 01985789
(June 13, 2001) (awarding $20,000.00 in non-pecuniary damages for an
undetermined length of injury for complainant's depression and emotional
distress, loss of credit standing and loss of professional standing);
Batieste v. Air Force, Appeal No. 01974616 (May 26, 2000) (awarding
$12,000 for two years of injury for feelings of worthlessness and
depression, negative attitude about self and outside world, isolation
from coworkers, nausea and insomnia, intense feelings of anxiety,
irritability, and need to declare bankruptcy.) This award is not
motivated by passion or prejudice, is not monstrously excessive standing
alone, and is consistent with the amounts awarded in similar cases.
See Cygnar, supra, 865 F.2d at 848.
We note that in her decision on the merits of retaliation, the AJ found
that complainant's supervisor disclosed to employees complainant's
�emotional symptoms.� AJ at 28. In his first appeal (EEOC Appeal
No. 01995168 (Nov. 20, 2001), complainant asserted that by this act,
complainant's supervisor �attempt[ed] to embarrass and humiliate
complainant by revealing complainant's emotional symptoms to fellow
employees.� Complainant concluded that this caused him �great harm.�
Complainant did not specify the type or extent of the harm he sustained,
beyond his earlier characterization that the disclosure was designed to
embarrass and humiliate him. While the EEOC has no authority to enforce
the Privacy Act, we have factored into complainant's claim of damages
his unrebutted assertion that he sustained harm.
Restoration of Life Insurance Policy
As with his claims of pecuniary loss and disclosure of confidential
medical information, complainant failed to adduce evidence regarding the
loss of his life insurance policy. For this reason, complainant cannot
prevail in this claim for damages.
CONCLUSION
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 modify the agency's final
order.
ORDER (C0900)
The agency is ordered to take the following remedial action:
Within 60 days of the date this decision becomes final, the agency must
pay to the complainant $20,000.00 in compensatory damages.<2>
The agency is further directed to submit a report of compliance, as
provided in the statement entitled "Implementation of the Commission's
Decision." The report shall include supporting documentation verifying
that the corrective action has been implemented.
ATTORNEY'S FEES (H0900)
If complainant has been represented by an attorney (as defined by
29 C.F.R. � 1614.501(e)(1)(iii)), he/she is entitled to an award of
reasonable attorney's fees incurred in the processing of the complaint.
29 C.F.R. � 1614.501(e). The award of attorney's fees shall be paid
by the agency. The attorney shall submit a verified statement of fees
to the agency -- not to the Equal Employment Opportunity Commission,
Office of Federal Operations -- within thirty (30) calendar days of this
decision becoming final. The agency shall then process the claim for
attorney's fees in accordance with 29 C.F.R. � 1614.501.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0501)
Compliance with the Commission's corrective action is mandatory.
The agency shall submit its compliance report within thirty (30)
calendar days of the completion of all ordered corrective action. The
report shall be submitted to the Compliance Officer, Office of Federal
Operations, Equal Employment Opportunity Commission, P.O. Box 19848,
Washington, D.C. 20036. The agency's report must contain supporting
documentation, and the agency must send a copy of all submissions to
the complainant. If the agency does not comply with the Commission's
order, the complainant may petition the Commission for enforcement
of the order. 29 C.F.R. � 1614.503(a). The complainant also has the
right to file a civil action to enforce compliance with the Commission's
order prior to or following an administrative petition for enforcement.
See 29 C.F.R. �� 1614.407, 1614.408, and 29 C.F.R. � 1614.503(g).
Alternatively, the complainant has the right to file a civil action on
the underlying complaint in accordance with the paragraph below entitled
"Right to File A Civil Action." 29 C.F.R. �� 1614.407 and 1614.408.
A civil action for enforcement or a civil action on the underlying
complaint is subject to the deadline stated in 42 U.S.C. 2000e-16(c).
If the complainant files a civil action, the administrative processing of
the complaint, including any petition for enforcement, will be terminated.
See 29 C.F.R. � 1614.409.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
The Commission may, in its discretion, reconsider the decision in this
case if the complainant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. The appellate decision involved a clearly erroneous interpretation
of material fact or law; or
2. The appellate decision will have a substantial impact on the policies,
practices, or operations of the agency.
Requests to reconsider, with supporting statement or brief, must be filed
with the Office of Federal Operations (OFO) within thirty (30) calendar
days of receipt of this decision or within twenty (20) calendar days of
receipt of another party's timely request for reconsideration. See 29
C.F.R. � 1614.405; Equal Employment Opportunity Management Directive for
29 C.F.R. Part 1614 (EEO MD-110), 9-18 (November 9, 1999). All requests
and arguments must be submitted to the Director, Office of Federal
Operations, Equal Employment Opportunity Commission, P.O. Box 19848,
Washington, D.C. 20036. In the absence of a legible postmark, the
request to reconsider shall be deemed timely filed if it is received by
mail within five days of the expiration of the applicable filing period.
See 29 C.F.R. � 1614.604. The request or opposition must also include
proof of service on the other party.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely, unless extenuating circumstances
prevented the timely filing of the request. Any supporting documentation
must be submitted with your request for reconsideration. The Commission
will consider requests for reconsideration filed after the deadline only
in very limited circumstances. See 29 C.F.R. � 1614.604(c).
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (R0900)
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, Director
Office of Federal Operations
_____09-30-03_____________
Date
1 The agency relied on the reasoning of its
FAD to support its non-pecuniary damages award of $4,500.00. The FAD's
discussion of non-pecuniary damages acknowledged receipt but did not
discuss the complainant's evidentiary submissions from his psychologist,
daughter or companion. In justification of its $4,500.00 award, the FAD
recited Commission cases of low damages awards ($1,000.00 - $2,000.00)
where complainants provided �scant� or �sparse� evidence of injury.
In the cases cited by the agency, complainants had failed to provide
medical bills or statements, or provided evidence without elaboration of
stress and interference with enjoyment of life. These cases contrast with
evidence from the instant case wherein complainant produced a detailed
letter from his psychologist describing the severity and duration of
his injury, and letters from family members describing the effects of
complainant's emotional state on the family.
2 We note that the agency has already paid the complainant $9,000.00,
$4,500.00 of which was paid pursuant to its March 19, 2002 final agency
decision, and $4,500.00 of which was apparently paid erroneously as
an overpayment of the agency's award. On April 8, 2002, the agency
discovered its' overpayment and sought repayment by the complainant.
It is not known if the complainant repaid the agency the $4,500.00 which
the agency claimed it was due. The $20,000.00 damage payment must be
offset by the amount already paid to the complainant in compensatory
damages.