0120080548
10-16-2009
Robert E. Preston, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, (Southeast Area), Agency.
Robert E. Preston,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
(Southeast Area),
Agency.
Appeal No. 0120080548
Agency No. 4H350007904
DECISION
Complainant timely initiated an appeal from the agency's final
decision, dated October 26, 2007, concerning his claim for compensatory
damages, which stems from his original complaint alleging employment
discrimination in violation of Section 501 of the Rehabilitation Act of
1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq.
BACKGROUND
In the underlying complaint, complainant alleged that he was discriminated
against on the basis of disability when he was denied a reasonable
accommodation. Complainant requested a hearing, however, the Equal
Employment Opportunity Commission (EEOC) Administrative Judge (AJ)
remanded the case to the agency on the basis that complainant failed
to provide requested information. The agency subsequently issued a
final decision (FAD1) pursuant to 29 C.F.R. � 1614.110. FAD1 found that
complainant failed to prove that he was subjected to discrimination as
alleged. Complainant appealed that decision, and in Preston v. United
States Postal Service, EEOC Appeal No. 0120054230 (August 9, 2007),
the Commission reversed FAD1 and found that: (1) the agency had denied
complainant a reasonable accommodation; (2) the agency did not act in
good faith in attempting to accommodate complainant in his position; and
(3) complainant had raised a cognizable claim for compensatory damages.
The Commission reversed FAD1 and remanded the case to the agency to
take remedial action including conducting a supplemental investigation
regarding complainant's entitlement to compensatory damages.
After the agency conducted the supplemental investigation, complainant
was provided a copy of the investigative report and the agency issued
a second final agency decision (FAD2). As to pecuniary damages, FAD2
found that complainant failed to establish a causal relationship between
the submitted past-due bills and the agency's failure to accommodate his
request for a contiguous shift. FAD2 also found that complainant had
submitted no medical documentation or pharmacy bills in support of any
medications he was prescribed. FAD2 found that complainant submitted
copies of tax returns for the period of 2004-2006 and copies of bills
incurred in 2007, however he failed to establish a causal relationship
between incurring those debts and the agency's denial of a reasonable
accommodation. Further, FAD2 found that the agency offered complainant
four options when his request for an accommodation was denied including:
applying for disability retirement, regular retirement, resigning from
the agency, or applying for another collective bargaining position for
which he was physically qualified. FAD2 found that complainant failed
to exercise any of the options offered and voluntarily terminated his
employment with the agency. FAD2 found that based on the evidence in
the record, complainant was not entitled to pecuniary damages.
As to non-pecuniary damages, FAD2 found that complainant submitted
no medical documentation concerning the mental and emotional harm
suffered and the only testimony describing the emotional suffering came
from complainant and complainant's wife. FAD2 found that there was no
evidence in the record that complainant suffered any long-term mental or
emotional problems as a result of the discrimination or that complainant
was rendered incapable of working. FAD2 found that given the weight
of the evidence in the record, complainant has not established that
non-pecuniary, compensatory damages were warranted. FAD2 therefore
found that complainant was not entitled to any compensatory damages.
CONTENTIONS ON APPEAL
On appeal, complainant claims that he is entitled to an "equitable
remedy" because the agency did not act in good faith when they denied
him a reasonable accommodation. Complainant claims that the act of
denying him an accommodation coupled with the fact that the agency
severely reduced his work hours prevented him from successfully meeting
his financial and parental obligations. Complainant claims that he
was put in the position of having to choose between actively pursuing
control of his health and meeting life obligations. Complainant claims
that he believes he followed all of the options that the agency offered
him, including applying for disability retirement which he was denied.
Further, complainant claims that he contacted the agency's human resources
department and was told that there were no other positions available
in his area. Complainant claims he subsequently sought other means
of employment, but had to quit several unprofitable jobs. Complainant
claims that he suffered depression, anxiety, sleeplessness, crying, and
humiliation because of the agency's actions. Additionally, complainant
claims that the additional level of stress aggravated a pre-existing
mental condition. Finally, complainant included copies of tax returns,
past-due bills, and a spreadsheet outlining the differences in income
in what he actually accrued during the period from the denial of a
reasonable accommodation and the income he would have received had he
not been discriminated against.
In response, the agency claims that complainant failed to establish any
entitlement to compensatory damages. The agency claims that documentation
and copies of bills submitted by complainant did not establish a time
frame within which he accumulated the past due amounts; but, rather,
only showed dates when he was notified that he had an amount past due.
Further, the agency claims that the tax returns submitted by complainant
do not establish a causal connection between him incurring those debts and
the discrimination found to have occurred. As to non-pecuniary damages,
the agency claims that complainant submitted no medical documentation
or other documentation concerning complainant's emotional suffering.
The agency claims that while complainant may have suffered emotional
distress that may be attributed to the agency's denial of his request
for accommodation, he was never denied employment as he was given an
opportunity to change his work schedule within the collective bargaining
agreement, but chose not to do so. Therefore, the agency claims that
complainant is not entitled to non-pecuniary damages because he has not
shown that the distress was caused by the agency's failure to accommodate
his one-time request. Accordingly, the agency requests that we affirm
FAD2.
ANALYSIS AND FINDINGS
As to the issue of compensatory damages, we note that in West v. Gibson,
119 S.Ct. 1906 (1999), the Supreme Court held that Congress afforded
the Commission the authority to award compensatory damages in the
administrative process. Section 102(a) of the Civil Rights Act of 1991
(the CRA 1991), codified as 42 U.S.C. � 1981a, authorizes an award of
compensatory damages as part of the "make whole" relief for intentional
discrimination in violation of Title VII of the Civil Rights Act of
1964, 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 to
each complaining party for future pecuniary losses, emotional pain,
suffering, inconvenience, mental anguish, loss of enjoyment of life,
and other non-pecuniary losses, according to the number of persons
employed by the respondent employer. The limit for an employer with
more than 500 employees, such as the agency herein, is $300,000.00.
42 U.S.C. � 1981a(b)(3)(D).
If a complainant alleges that he is entitled to compensatory damages
and the agency or Commission enters a finding of discrimination, the
complainant is given an opportunity to submit evidence establishing
her claim. To receive an award of compensatory damages, a complainant
must demonstrate that she 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
recons. den. 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 (July 14, 1992), at 11-12, 14.
A compensatory damages award should fully compensate a complainant for
the harm caused by the agency's discriminatory action even if the harm
is intangible. Id. at 13. Thus, a compensatory damages award should
reimburse a complainant for proven pecuniary losses, future pecuniary
losses, and non-pecuniary losses. Non-pecuniary damages constitute
the sums necessary to compensate the injured party for actual harm,
even where the harm is intangible. Carter v. Duncan-Higgins, Ltd.,
727 F.2d 1225 (D.C. Cir. 1984). The award should take into account
the severity and duration of the harm. Carpenter v. Department of
Agriculture, EEOC Appeal No. 01945652 (July 17, 1995). Non-pecuniary
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 Ward-Jenkins
v. Department of the Interior, EEOC Appeal No. 01961483 (March 4, 1999)
(citing Cygnar v. City of Chicago, 865 F. 2d 827, 848 (7th Cir. 1989)).
Pecuniary Damages
Pecuniary damages may be awarded for losses that are directly or
proximately caused by the agency's discriminatory conduct. See EEOC's
Enforcement Guidance: Compensatory and Punitive Damages Available Under
Section 102 of the Civil Rights Act of 1991, EEOC Notice No. 915.002
at 8 (July 14, 1992) ("Guidance"). Pecuniary losses are out-of-pocket
expenses incurred as a result of the agency's unlawful action, including
job-hunting expenses, moving expenses, psychiatric expenses, physical
therapy expenses, and other quantifiable out-of-pocket expenses. Id.
For claims seeking pecuniary damages, a complaint should proffer objective
evidence documenting out-of-pocket expenses for all actual costs and
an explanation of the expense, i.e., medical and psychological bills,
other costs associated with the injury caused by the agency's actions,
and an explanation for the expenditure. Id. at 9.
We agree with the agency and find that complainant has failed to prove his
entitlement to pecuniary damages. The pecuniary damages which complainant
is seeking, as set forth above, are not for out-of-pocket expenses.
Rather, complainant is seeking compensation for lost wages and benefits
(e.g., overtime and sick leave). As previously stated, compensatory
damages do not include back pay, interest on back pay, or any other type
of equitable relief. 42 U.S.C. � 1981a(b)(2). The Commission notes
that in EEOC Appeal No. 0120054230, complainant was not awarded back
pay, front pay, sick leave, or annual leave. Accordingly, such relief
is not available to complainant as compensatory damages.1
Non-pecuniary Damages
There is no precise formula for determining the amount of damages for
non-pecuniary 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); Rountree v. Department of Agriculture, EEOC Appeal No. 01941906
(July 7, 1995). We note that for a proper award of non-pecuniary 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 Ward-Jenkins
v. Department of the Interior, EEOC Appeal No. 01961483 (March 4, 1999).
We note that evidence from a health care provider or other expert is
not a mandatory prerequisite for recovery of compensatory damages for
emotional harm. See Lawrence v. United States Postal Service, EEOC
Appeal No. 01952288 (April 18, 1996) (citing Carle v. Department of the
Navy, EEOC Appeal No. 01922369 (January 5, 1993)). Objective evidence
of compensatory damages can include statements from the complainant
concerning his or her emotional pain or suffering, inconvenience, mental
anguish, loss of enjoyment of life, injury to professional standing,
injury to character or reputation, injury to credit standing, loss
of health, and any other non-pecuniary losses that are incurred as
a result of the discriminatory conduct. Id. Statements from others,
including family members, friends, health care providers, other counselors
(including clergy) could address the outward manifestations or physical
consequences of emotional distress, including sleeplessness, anxiety,
stress, depression, marital strain, humiliation, emotional distress,
loss of self-esteem, excessive fatigue, or a nervous breakdown. Id.
Complainant's own testimony, along with the circumstances of a particular
case, can suffice to sustain his burden in this regard. Id. The 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. Id. The absence of supporting evidence,
however, may affect the amount of damages appropriate in specific
cases. Id.
Additionally, we acknowledge that complainant claims he suffered an
aggravation of pre-existing mental health conditions. The Commission
applies the principle that "a tortfeasor takes its victims as it finds
them." Wallis v. United States Postal Service, EEOC Appeal No. 01950510
(November 13, 1995) (quoting Williamson v. Handy Button Machine Co.,
817 F.2d 1290, 1295 (7th Cir. 1987)). The Commission also applies
two exceptions to this general rule. First, when a complainant has a
pre-existing condition, the agency is liable only for the additional harm
or aggravation caused by the discrimination. Second, if the complainant's
pre-existing condition inevitably would have worsened, the agency is
entitled to a reduction in damages reflecting the extent to which the
condition would have worsened even absent the discrimination; the burden
of proof being on the agency to establish the extent of this entitlement.
Wallis, EEOC Appeal No. 01950510 (citing Maurer v. United States, 668
F.2d 98 (2d Cir. 1981)); Finlay v. United States Postal Service, EEOC
Appeal No. 01942985 (April 29, 1997). The Commission notes, however,
that complainant is entitled to recover damages only for injury, or
additional injury, caused by the discrimination. Terrell v. Department
of Housing and Urban Development, EEOC Appeal No. 01961030 (October 25,
1996); EEOC Notice No. N 915.002 at 12.
In the instant case, complainant claims that the agency's discriminatory
actions triggered a recurrence of his pre-existing symptoms which
included stress, nightmares, obsessive-compulsive disorder, feelings of
helplessness, and depression. Report of Investigation (ROI), Aff. A,
at 6-8. Complainant's wife claims that after the agency denied his
request for a reasonable accommodation, complainant "reverted back to
the sleeplessness, anxiety, and depression that once threatened his
ability to cope with life." ROI, Aff. B, at 1. Further, she claims
that "the sleeplessness, anxiety, and depression . . . has caused him
to act irrationally at times when dealing with our children and me."
Id. We find that complainant has established that he is entitled to
non-pecuniary, compensatory damages as he has offered corroborating
testimony from his wife articulating that he suffered from stress,
anxiety, and depression as a result of the agency's actions.
In determining compensatory damages, the Commission strives to make damage
awards for emotional harm consistent with awards in similar cases. Thus,
based on the record, the Commission finds that the agency's decision to
not award complainant non-pecuniary damages fails to remedy the harm that
complainant alleged. We find that complainant is entitled to an award
of $3,500.00 in light of the aggravation of complainant's pre-existing
symptoms due to the agency's denial of a reasonable accommodation.
We determine that the award is consistent with the amounts awarded in
similar cases. See Padron v. United States Postal Service, EEOC Appeal
No. 0120072520 (September 30, 2008) ($3,500.00 in non-pecuniary damages
awarded where complainant suffered discrimination based on disability
and complainant experienced anxiety, stress, and depression); Young
v. Department of Veterans Affairs, EEOC Appeal No. 01A24503 (September
15, 2003) ($3,500.00 in non-pecuniary damages awarded where complainant
was terminated when he was denied an accommodation for his disability
and he experienced stress and marital strain); Taylor v. Department
of the Interior, EEOC Appeal No. 01A34292 (May 3, 2004) ($3,000.00 in
non-pecuniary damages where complainant was denied an accommodation for
her disability and complainant experienced anxiety and stress, depression,
and felt incompetent, and emotionally and physically sick). We note that
this sum is meant to compensate complainant for the emotional distress
he suffered, which was caused by the agency's discriminatory actions.
Finally, this amount meets the goals of not being motivated by passion or
prejudice, not being "monstrously excessive" standing alone, and being
consistent with the amounts awarded in similar cases. See Ward-Jenkins
v. Department of Interior, EEOC Appeal No. 01961483 (March 4, 1999)
(citing Cygnar v. City of Chicago, 865 F.2d 827, 848 (7th Cir. 1989)).
CONCLUSION
The agency's decision is REVERSED and we find that complainant shall
be awarded $3,500.00 in non-pecuniary, compensatory damages. We REMAND
the matter to the agency to comply with the Order herein.
ORDER
The agency shall:
1. Within 30 days of the date this decision becomes final, the agency
shall pay complainant $3,500.00 in non-pecuniary, compensatory damages.
2. Submit a report of compliance, as provided in the statement herein
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 (K1208)
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 77960, Washington,
DC 20013. 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 (M1208)
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 77960,
Washington, DC 20013. 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 (R0408)
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 (Z1008)
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 from the Court that
the Court appoint an attorney to represent you and that the Court also
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 with
the Court 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
10-16-2009_
Date
1 To the extent that complainant asserts that these lost wages and other
expenses are a direct result of the agency's decision to cut back on his
hours and his subsequent alleged constructive discharge from the agency,
we observe that these issues are the subject of another EEO complaint
(Agency Case No.4-H-350-0024-05) being processed separately by the agency
and are not properly before us for determination herein.
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0120080548
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
9
0120080548