01a44490
07-19-2005
Robert D. Green, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Robert D. Green v. United States Postal Service
01A44490
07-19-05
.
Robert D. Green,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A44490
Agency No. 1G-754-1082-96
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts the
complainant's appeal in the above-entitled matter. In Robert D. Green
v. John E. Potter, Postmaster General, United States Postal Service,
EEOC Appeal No. 01984874 (May 2, 2002), the Commission found that the
agency discriminated against complainant on the basis of disability
(loss of use of right shoulder) when, on February 27, 1996, his job
offer was amended, thereby converting him from a full-time clerk to a
part-time flexible clerk. The order for relief included, inter alia,
a supplemental investigation to determine complainant's entitlement to
compensatory damages, if any.
The record reflects that complainant's counsel informed the agency that
complainant would submit a petition for compensatory damages only after
a back pay issue was resolved between the parties. In letters to the
Commission, dated November 4, 2002, and December 16, 2002, the agency
acknowledged that complainant had not as of yet submitted his compensatory
damages petition. There is no evidence in the record that the agency
objected to complainant's request to resolve the compensatory damages
issue after completion of the back pay determination. When the agency and
complainant could not resolve the back pay issue, complainant petitioned
the Commission to enforce the order in Appeal No. 01984874. In Green
v. United States Postal Service, EEOC Petition No. 04A30028 (April 6,
2004), the Commission denied complainant's petition for enforcement,
but noted that complainant had not yet submitted his claim for damages.
On June 17, 2004, complainant submitted his request for compensatory
damages to the agency's appeals coordinator. The agency, however,
issued a final decision, dated June 21, 2004, dismissing the claim on
the ground that it was untimely filed. The Commission finds that the
agency's letters to the Commission, dated November 4, 2002, and December
16, 2002, reflect that the agency agreed to waive the time limit for
complainant to submit his compensatory damages petition until the
resolution of the back pay issue. Accordingly, since the agency did
not object to allowing complainant to submit his compensatory damage
petition after the back pay issue was resolved, and since the parties
were in discussions regarding back pay during the relevant time period,
the agency cannot argue that the request is untimely raised. Therefore,
we will decide complainant's entitlement to compensatory damages herein.
Complainant requested $225,000 in nonpecuniary compensatory damages.
He made it clear that he was asking only for compensation for pain and
suffering, particularly for depression and Post-Traumatic Stress Disorder
(PTSD). He explicitly stated that he was not seeking compensation
for medical expenses. Section 102(a) of the Civil Rights Act of
1991 authorizes the Commission to award compensatory damages as part
of make-whole relief for intentional discrimination. 42 U.S.C. �
1981a; West v. Gibson, 527 U.S. 212, 217 (1999). To receive an
award of compensatory damages, complainant must demonstrate that he has
been harmed as a result of the agency's discriminatory change of his
employment status on February 27, 1996 as well as the extent, nature,
severity, and duration of that harm. See 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, 11-12, 14.
Complainant must present objective evidence that the agency's
discriminatory actions caused him to suffer the harm complained of.
See Smith v. Department of Defense, EEOC Appeal No. 01943844 (May
8, 1996). Evidence establishing such a causal connection may include
statements from complainant and others, including family members, friends,
and health care providers, concerning any harm or injury that he had
experienced as a result of being converted from full-time to part-time
status in February 1996. See generally Carle v. Department of the Navy,
EEOC Appeal No. 01922369 (Jan. 5, 1993).
Although complainant had served in Vietnam, there are no indications in
the record that he had exhibited any signs of PTSD prior to February 1996.
In a notarized letter to the agency dated June 17, 2004, complainant
stated that he had been injured in 1992, and was off from work for about
two years as a result. He further stated that, during the time that he
was not working, he had been seeing a psychologist for depression, but
was happy when he returned to work. The record includes a report from a
clinical psychologist to a treating psychiatrist dated August 23, 1994.
The report indicated that things were going well for complainant at work,
in that he was very pleased with his job, that the work environment
was �more than satisfactory,� and that complainant's co-workers and
supervisors were �great to work with.� The report also noted that
complainant had done a good job of integrating pain management techniques
into his daily routine, that he had become much less irritable and more
patient, and that, �overall, he and his family [felt] that he [was] back
to his old self.� In addition, he had decreased his dosages of Pamelor,
an antidepressant medication that he was on.
The record contains extensive medical documentation establishing that
complainant's condition worsened substantially after February 1996, and
that he had continued to exhibit severe symptoms between March 1996 and
May 2004. Complainant has presented reports from treating psychiatrists
and psychologists, assessments from the VA medical center in Dallas,
Texas, medication lists, medical records, treatment plans, and other
documentation of PTSD and major depression. These conditions manifested
as nervousness, sleeplessness, anxiety, irritability, low self-esteem,
isolation, fear of crowds, and nightmares.
The evidence of record thus establishes the existence of a nexus between
the discriminatory change of complainant's employment status from
full-time to part-time on February 27, 1996, the onset of his PTSD, and
the exacerbation of his depression and his peripheral neuropathy. We now
turn to the task of actually calculating the award. There is no precise
formula for determining the amount of damages for nonpecuniary losses,
except that the award should reflect the nature and severity of the harm
and the duration or expected duration of the harm. Loving v. Department
of the Treasury, EEOC Appeal No. 01955789 (August 29, 1997). It should
likewise be consistent with amounts awarded in similar cases. Hogeland
v. Department of Agriculture, EEOC Appeal No. 01976440 (June 14, 1999).
The Commission has ordered awards of $150,000 and above where there
the harm suffered by the complainant was extremely severe and there was
compelling evidence of a nexus between that harm and the agency's acts
of discrimination. See Glockner v. Department of Veterans Affairs, EEOC
Appeal No. 07A30105 (September 23, 2004) ($200,000); Mack v. Department
of Veterans Affairs, EEOC Appeal No. 01983217 (June 23, 2000), request
for reconsideration denied EEOC Request No. 05A01058 (October 26, 2000)
($186,000); and Kloock v. United States Postal Service, EEOC Appeal
No. 01A31159 (February 5, 2004) ($150,000). Therefore, to establish his
entitlement to an award of $225,000, complainant present sufficient proof
that he suffered harm comparable to the harm suffered by the complainants
in Glockner, Mack, and Kloock. See generally Lucas v. Department
of Veterans Affairs, EEOC Request No. 05950161 (May 2, 1996), citing
Enforcement Guidance: Compensatory and Punitive Damages Available under
�102 of the Civil Rights Act of 1991, EEOC Notice No. N915.002 (July 14,
1992) (it is the burden of appellant to prove that a pecuniary and/or
non-pecuniary loss occurred, and that there is a causal relationship
between the loss and the discrimination).
In Glockner, complainant was subjected to ongoing discriminatory
harassment between July 1999 and June 2001, a period of nearly two years.
She testified that, in addition to suffering from depression, anxiety,
and exhaustion, she had been experiencing migraine headaches as well
as irritable bowel syndrome and other gastrointestinal disorders.
She also testified that she started to bite her cheeks and developed
an irrational fibroma, which required surgery. In addition to her own
testimony, the complainant presented a neurologist's report indicating
that a magnetic resonance imaging scan performed in October 2000 had ruled
out physiological causes of her migraines, and that as far back as 1999,
the complainant's doctor had attributed her migraines to work-related
stress. In addition, a staff physician working at the complainant's
facility testified that he had seen complainant several times testified
as to his belief that the complainant's symptoms originated from her
working conditions. Other evidence included letters from complainant's
doctors regarding treatment of her kidney stones and the removal of her
irrational fibroma.
In Mack, the complainant's award was based on a finding that he had
been left homeless for two years following a discriminatory termination
from his employment. The complainant testified without rebuttal that,
as a result of being fired after testing positive for the HIV virus, he
could no longer pay rent, his lease was not renewed and he was forced to
give up custody of his seven-year-old daughter. Between 1995 and 1997,
he was left homeless, unable to bathe and often sleeping in the street.
His belongings and those of his daughter were sold at an auction after
he could no longer pay the monthly storage fees. In addition, his
relationship with his daughter was irreparably damaged. Finally, his
depression worsened considerably after his removal. He began to suffer
from migraines and insomnia, and his emphysema had gotten worse as well.
In the instant case, an assessment from the VA medical center in Dallas
dated November 28, 1997, indicates that complainant had been a patient at
the center since April 23, 1996, that he had been diagnosed with PTSD,
that his social and occupational functioning had been significantly
impaired, and that his prognosis was poor. A clinical psychologist's
memorandum dated December 5, 1997, stated that complainant continued
to display the symptom configurations associated with PTSD and major
depression at severe levels. The memorandum noted that complainant's
prognosis was poor and that a global functionality assessment indicated
a functionality of 50, which indicated serious impairment in social and
vocational functioning. He had been on various psychotropic medications
to control his symptoms, including, but not limited to Gabapentin,
Citalopram Hydrobromide, Clonzpen, Quetiapine Fumarate, Trazodone,
Nortriptyline, and Klonopin.
Despite extensive psychiatric treatment and evaluation, he continued to
exhibit these symptoms between March 1996 and May 2004, and beyond. He
reported that panic reactions would be triggered by such activities as
attending church services where people would be behind him, and watching
the rain. A doctor's note dated December 4, 2001, indicated that had
also been diagnosed with peripheral neuropathy, a degenerative nerve
condition, which caused him to have to walk with a cane. The doctor stated
that, although complainant was first diagnosed with peripheral neuropathy
in 1985, the condition had been made worse by having been �coupled
with his PTSD.� The doctor characterized his neuropathy as, �more of
a disability.� The various statements from treating psychiatrists and
psychologists indicate that complainant's condition is permanent.
There are, however, no indications in the record that complainant lost
his employment, home, or property, as had the complainants in Mack
and Koock. Moreover, complainant has not exhibited physical symptoms
of his emotional distress to the same extent that the complainant in
Glockner had. Rather, the facts in this case are similar to those
in which the Commission has awarded $100,000 in compensatory damages.
See Hendley v. Department of Justice, EEOC Appeal No. 01A20977 (May 15,
2003), request for reconsideration dismissed, EEOC Request No. 05A30962
(January 14, 2004) ($100,000 awarded where complainant was diagnosed
with severe bipolar disorder, had experienced paranoia, insomnia, eating
disorders, and uncontrollable crying for six years, and would require
treatment for the rest of her life); Patel v. Department of the Army, EEOC
Appeal No. 01980279 (September 26, 2001) ($100,000 awarded where, after
several discriminatory nonselections, complainant required continuous
medical treatment for five years, covering major depression, chest pains,
palpitations, anxiety, and insomnia); and Finlay v. United States Postal
Service, EEOC Appeal No. 01942985 ($100,000 awarded where complainant
experienced depression, frequent crying, concern for her safety, lethargy,
social withdrawal, recurring nightmares, a damaged marriage, stomach
distress, and headaches for a period of four years, and was expected to
continue experiencing those symptoms for an indeterminate time).
Accordingly, we will award complainant $100,000 in nonpecuniary
compensatory damages.
ORDER
Within fifteen (15) calendar days of the date that this decision
becomes final, the agency shall award complainant the sum of $100,000
in non-pecuniary compensatory damages for the emotional distress he
suffered as a result of the agency's discriminatory actions.
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)
(1994 & Supp. IV 1999). 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
_____07-19-05_____________
Date