01a01755
08-07-2000
Robert N. LaPorte, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, (Allegheny/Mid-Atlantic Region), Agency.
Robert N. LaPorte v. United States Postal Service
01A01755
August 7, 2000
.
Robert N. LaPorte,
Complainant,
v.
William J. Henderson,
Postmaster General,
United States Postal Service,
(Allegheny/Mid-Atlantic Region),
Agency.
Appeal No. 01A01755
Agency No. 2C248692
Hearing No. 120-93-7437X
DECISION
Robert LaPorte (complainant) filed an appeal with this Commission
from a final decision of the United States Postal Service (agency)
concerning his complaint of unlawful employment discrimination, in
violation of Title VII of the Civil Rights Act of 1964 (Title VII),
as amended, 42 U.S.C. � 2000e et seq., and the Age Discrimination in
Employment Act (ADEA) of 1967, as amended, 29 U.S.C. � 621 et seq.<1>
This appeal is accepted in accordance with 64 Fed. Reg. 37,644, 37,659
(1999) (to be codified at 29 C.F.R. � 1614.405).
ISSUE PRESENTED
The issue presented on appeal is whether the agency properly rejected,
in its entirety, complainant's claim for compensatory damages.
BACKGROUND
On August 28, 1998, the Equal Employment Opportunity Commission
(Commission or EEOC) issued a decision which rejected the agency's final
decision<2> and found that complainant had proven, by a preponderance
of the evidence, that he was discriminated against on the basis of race
(Caucasian), color (white) and age (49), when the agency ceased utilizing
him as an Acting Supervisor.<3>
In accordance with the AJ's recommendation, the agency was required to:
(1) immediately commence using complainant as an Acting Supervisor;
(2) determine the appropriate amount of backpay and other benefits due
complainant; and (3) conduct training for its supervisory personnel.
Complainant was also informed of his right to compensatory damages and
the agency was ordered to provide complainant with an opportunity to
submit evidence and argument in support of the requested relief.
Complainant requested $312,918.00 in �total past wages,� �interest on past
due wages,� �future wages lost,� and �total lost pension� all related to
the alleged missed promotional opportunities that complainant originally
raised in his complaint. Complainant also requested $300,000.00 for
�pain and suffering/emotional distress.� However, complainant failed
to present, at a minimum, an affidavit or other evidence to support his
claim.
In the Final Agency Decision on complainant's claim for compensatory
damages, the agency awarded no compensatory damages to complainant.
While the agency assumed that complainant was making a claim for future
lost wages for loss of upward mobility (being used as a 204-B status),
it also found such claim merely speculative on the part of complainant
to suggest that his skills, knowledge, and abilities are of such a high
quality that he would achieve an initial level promotion to an EAS-15
assignment then swiftly move to a pay grade EAS-19 position in a short
seven-year period.<4> With respect to the remainder of complainant's
pecuniary damages claims, the agency found no evidence provided by
complainant that he incurred medical or other costs associated with his
�pain and suffering/emotional distress.� Likewise, the agency found no
evidence supporting a claim for non-pecuniary damages. Specifically,
the agency noted that complainant has not provided any details as to how
he was affected by the discrimination. Complainant has not described
his mental or physical state subsequent to the discrimination, or how
the effects of the discrimination impacted on his relationship with
family members or coworkers.
ANALYSIS AND FINDINGS
Section 102(a) of the 1991 Civil Rights Act authorizes an award
of compensatory damages for all post-Act pecuniary losses, and for
non-pecuniary 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 this regard,
the Commission has authority to award such damages in the administrative
process. See West v. Gibson, 527 U.S. 212 (1999). Compensatory damages
do not include back pay, interest on back pay, or any other type of
equitable relief authorized by Title VII. 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 a complainant's
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 non-pecuniary
damages to be awarded. However, non-pecuniary 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). Non-pecuniary and future pecuniary damages are limited
to an amount of $300,000.00. The Commission notes 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 Damiano v United States Postal Service, EEOC
Request No. 05980311 (February 26, 1999); 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)).
Applying this legal standard, we agree with the agency's finding that
compensatory damages are not supported by the record. Complainant
fails to present a scintilla of evidence describing his claim for
�pain and suffering/emotional distress� related to the finding of
discrimination.<5> On appeal, complainant concedes that he did not
seek medical or psychiatric treatment. However, complainant argues
that �one does not have to have a grasp for the obvious to reach the
conclusion that pain and suffering prevailed after a seven-year period
of waiting for a decision.� With respect to this argument we note
that complainant is not entitled to any damages caused as a result of
a lengthy complaint/adjudication process, nor is he entitled to damages
related to the non-promotion issues that the Commission previously found
to be properly dismissed as untimely. Complainant is solely entitled
to damages that were directly caused by the discriminatory conduct.
Lastly, complainant provided, for the first time on appeal, a statement
from his daughter.<6> Assuming such evidence was presented before
the agency in a timely manner,<7> we find that such evidence is,
nevertheless, insufficient to prove that compensatory damages were
suffered by complainant as a direct result of the discriminatory conduct.
Complainant's daughter stated that complainant �changed a lot since this
whole thing happened; he now hates going to work.� However, complainant's
daughter described complainant's frustrations as being related to the
agency's failure to promote complainant to higher levels over the years,
rather than the discriminatory act (i.e., failure of complainant to be
assigned acting supervisor duties on several occasions). Accordingly,
the statement by complainant's daughter fails to show emotional distress
caused by the discrimination at issue herein.
Since complainant has failed to provide evidence that he suffered
pecuniary or non-pecuniary damages as a direct result of the
discrimination, the Commission hereby AFFIRMS the agency's final decision
finding that complainant is not entitled to compensatory damages.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0300)
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 64
Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter referred
to as 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 64 Fed. Reg. 37,644, 37,661 (1999) (to be codified and hereinafter
referred to as 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).
COMPLAINANTS' RIGHT TO FILE A CIVIL ACTION (S0400)
You have the right to file a civil action in an appropriate United States
District Court WITHIN NINETY (90) CALENDAR DAYS from the date that you
receive this decision. If you file a civil action, YOU MUST NAME AS
THE DEFENDANT IN THE COMPLAINT THE PERSON WHO IS THE OFFICIAL AGENCY HEAD
OR DEPARTMENT HEAD, IDENTIFYING THAT PERSON BY HIS OR HER FULL NAME AND
OFFICIAL TITLE. Failure to do so may result in the dismissal of your
case in court. "Agency" or "department" means the national organization,
and not the local office, facility or department in which you work. If you
file a request to reconsider and also file a civil action, filing a civil
action will terminate the administrative processing of your complaint.
RIGHT TO REQUEST COUNSEL (Z1199)
If you decide to file a civil action, and if you do not have or cannot
afford the services of an attorney, you may request that the Court appoint
an attorney to represent you and that the Court permit you to file the
action without payment of fees, costs, or other security. See Title VII
of the Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e et seq.;
the Rehabilitation Act of 1973, as amended, 29 U.S.C. �� 791, 794(c).
The grant or denial of the request is within the sole discretion of
the Court. Filing a request for an attorney does not extend your time
in which to file a civil action. Both the request and the civil action
must be filed within the time limits as stated in the paragraph above
("Right to File A Civil Action").
FOR THE COMMISSION:
______________________________
Carlton M. Hadden, Acting Director
Office of Federal Operations
August 7, 2000
__________________
Date
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 The Commission's decision also affirmed the administrative judge's
(AJ) recommended finding of discrimination.
3 The complainant originally raised an additional allegation that he
was passed over for numerous promotions. However, the Commission held
in LaPorte v. United States Postal Service, EEOC Appeal No. 01943273
(November 15, 1994), that such allegation was untimely.
4 The agency notes that complainant failed to provide any actual job
titles for the speculated positions that he believed he would have held
but for the discrimination.
5 Complainant also argues on appeal that he is entitled to an award of
back pay related to the alleged discriminatory non-promotions. However,
since the Commission has previously found this allegation untimely raised
before an EEO counselor, we find no merit to complainant's claim.
6 We note that this is the only witness statement/documentary evidence
in the record related to compensatory damages.
7 We do not address the merits of considering such new evidence on
appeal.