Robert N. LaPorte, Complainant,v.William J. Henderson, Postmaster General, United States Postal Service, (Allegheny/Mid-Atlantic Region), Agency.

Equal Employment Opportunity CommissionAug 7, 2000
01a01755 (E.E.O.C. Aug. 7, 2000)

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.