01983780
07-19-2001
Scott A. Taber v. United States Postal Service 01983780 July 19, 2001 .Scott A. Taber, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Scott A. Taber v. United States Postal Service
01983780
July 19, 2001
.Scott A. Taber,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01983780
Hearing No. 320-97-8007X
Agency No. 4E-590-1021-96
DECISION
On April 17, 1998, Scott A. Taber (hereinafter referred to as the
complainant) initiated an appeal to the Equal Employment Opportunity
Commission (Commission) with regard to his complaint of discrimination
in violation of � 501 of the Rehabilitation Act of 1973, as amended, 29
U.S.C. � 791 et seq. The final agency action was dated March 23, 1998.
Accordingly, the appeal is timely and is accepted by this Commission in
accordance with 29 C.F.R. � 1614.405. Based upon a review of the record,
and for the reasons stated herein, it is the decision of the Commission
to MODIFY the final agency action.
ISSUE PRESENTED
The issue on appeal is whether the agency properly awarded relief
to complainant upon finding that he had been subjected to disability
discrimination.
BACKGROUND
The complainant filed a formal EEO complaint in November 1995, alleging
that the agency discriminated against him when it did not select him
for a Custodial Laborer position because of a perceived disability.
Following an administrative hearing, an Administrative Judge (AJ)
issued a decision on January 30, 1998, finding that complainant was
subjected to disability discrimination. As relief, the AJ recommended,
among other things, that complainant be offered the position, and, after
satisfactory completion of an initial casual appointment of 90 days and
an eligibility test, be converted to career status. The AJ further noted
that complainant should receive backpay and benefits beginning September
20, 1995. With regard to complainant's claim for compensatory damages,
the AJ determined that complainant should be reimbursed for medical
insurance premiums and expenses incurred due to lack of insurance in the
amount of $10,299.98, and receive $15,000.00 in nonpecuniary damages.
The AJ found that complainant was not entitled to reimbursement for moving
expenses as there was insufficient evidence to show a causal connection
to the discriminatory action. The agency subsequently issued a final
decision adopting the AJ's finding of discrimination. The agency,
however, modified the relief to require that complainant undergo a
fitness for duty examination prior to placement into the position.
Further, the agency denied complainant's claim for pecuniary damages, and
determined that complainant was entitled to only $5,000.00 in nonpecuniary
damages. On appeal, complainant challenged the agency's rejection of
the AJ's findings regarding compensatory damages, and stated that he
has not received retroactive benefits, including sick and annual leave,
insurance, retirement, overtime and out of schedule pay, pay increases,
and seniority. Further, complainant stated that expenses incurred when
he relocated to look for employment should have been deducted from his
interim earnings prior to calculating backpay.<1>
Complainant testified that he experienced anxiety and stress due to his
nonselection. Complainant noted that after he was initially told that
he had gotten the job, he was humiliated by having to tell his family
and friends that he would not be hired. Complainant indicated that he
did not seek medical attention at the time of the incident because he
did not have insurance or funds to do so. Complainant stated that he
was concerned about his future, and experienced stomach problems and
weight loss. Complainant indicated that he was irritable and withdrawn,
and stopped socializing with friends. Complainant stated that he
expended $10,299.98 to purchase medical insurance and pay for medical
expenses during times in which he did not have agency provided coverage.
Complainant stated that he also incurred expenses when he moved from
Montana to South Carolina and North Carolina to search for employment.
Complainant's wife testified that, prior to complainant's nonselection,
he socialized with friends and enjoyed spending time with his family.
She noted, however, that after that time, complainant was depressed,
and frequently tired. Complainant's wife stated that complainant would
no longer make decisions and experienced low self esteem.
The record includes testimony from a psychologist (Dr. A) who examined
complainant in July 1997, and diagnosed him as having adjustment disorder
with mixed anxiety and depressed mood. Dr. A stated that it was difficult
to determine what caused complainant's condition, but noted that a medical
report completed just prior to the nonselection showed that complainant
had no psychiatric disorders. Dr. A noted symptoms of anxiety, poor
motivation, poor sleep patterns and concentration, stomach problems, and
withdrawal from family. Dr. A acknowledged that complainant exhibited a
tendency to exaggerate his symptoms, and that his condition could have
been caused in part by other factors. Nevertheless, Dr. A opined that
there was a connection between complainant's condition and the denial
of employment. Dr. A concluded that there would be no permanent impact
of the condition if complainant completed several months of treatment.
ANALYSIS AND FINDINGS
In the case at hand, the agency found discrimination and awarded
relief. Therefore, the issue before the Commission is limited to
the appropriateness of the relief awarded. 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), request for reconsideration 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. N 915.002
at 11-12, 14 (July 14, 1992).
In Carle v. Department of the Navy, EEOC Appeal No. 01922369 (January 5,
1993), the Commission described the type of objective evidence that an
agency may obtain when assessing the merits of a complainant's request
for emotional distress damages:
[E]vidence should have taken the form of a statement by the complainant
describing her emotional distress, and statements from witnesses, both
on and off the job, describing the distress. To properly explain the
emotional distress, such statements should include detailed information
on physical or behavioral manifestations of the distress, information on
the duration of the distress, and examples of how the distress affected
the complainant day to day, both on and off the job. In addition, the
agency should have asked the complainant to provide objective and other
evidence linking ... the distress to the unlawful discrimination....
Objective evidence may include statements from the complainant concerning
his/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
nonpecuniary losses that are incurred as a result of the discriminatory
conduct. Statements from others, including family members, friends,
and health care providers, 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.
Objective evidence also may include documents indicating a complainant's
actual out-of-pocket expenses related to medical treatment, counseling,
and so forth, related to the injury allegedly caused by discrimination.
In determining damages, the agency is only responsible for those damages
that are clearly shown to be caused by the alleged discriminatory conduct,
not for any and all damages in general.
Nonpecuniary Damages
An award of compensatory damages for non-pecuniary losses, including
emotional harm, should reflect the extent to which the agency directly
or proximately caused the harm, and the extent to which other factors
also caused the harm. The Commission has held that evidence from a
health care provider is not a mandatory prerequisite for recovery
of compensatory damages. Carpenter v. Department of Agriculture,
EEOC Appeal No. 01945652 (July 17, 1995). Courts also have held that
"expert testimony ordinarily is not required to ground money damages
for mental anguish or emotional distress." Sanchez v. Puerto Rico Oil
Co., 37 F.3d 712, 724 (1st Cir. 1994), citing Wulf v. City of Wichita,
883 F.2d 842, 875 (10th Cir. 1989); Busche v. Burkee, 649 F.2d 509, 512
n.12 (7th Cir.), cert. denied, 454 U.S. 897 (1981). A complainant's own
testimony, along with the circumstances of a particular case, can suffice
to sustain his/her burden in this regard. See U.S. v. Balistrieri, 981
F.2d 916, 932 (7th Cir. 1992), cert. denied, 114 S. Ct. 58 (1993)(housing
discrimination). As the court noted in Balistrieri, "[t]he 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; consequently, somewhat more conclusory evidence of emotional
distress will be acceptable to support an award for emotional damages."
Nonetheless, the absence of supporting evidence may affect the amount
of damages deemed appropriate in specific cases. Lawrence v. USPS,
EEOC Appeal No. 01952288 (April 18, 1996).
The Commission notes that damage awards for emotional harm are difficult
to determine and that there are no definitive rules governing the amount
to be awarded in given cases. A proper award must meet two goals: that it
not be "monstrously excessive" standing alone, and that it be consistent
with awards made in similar cases. See Cygnar v. City of Chicago, 865
F.2d 827, 848 (7th Cir. 1989). Further, Federal courts have awarded
compensatory damages in a wide range of amounts depending on the facts of
the particular case, and the supporting evidence presented. See, e.g.,
McClam v. City of Norfolk Police Department, et al., 877 F.Supp. 277,
284 (E.D. Va. 1995) (award of $15,000.00 for 18 months of headaches,
lowered self esteem, and changes in attitude following repeated denials
of job transfer requests); Johnson v. Philadelphia Electric Co., 709
F.Supp. 98, 104 (E.D. Pa. 1989) ($10,000.00 for mental anguish following
the denial of a promotion). In addition, the Commission has awarded
compensatory damages based on the extent of the damages proved. See Bever
v. Department of Agriculture, EEOC Appeal No. 01953949 (October 31, 1996)
($15,000.00 award for anxiety and depression resulting from the denial of
promotion and hostile work environment); Lam v. Department of Agriculture,
EEOC Appeal No. 01961589 (June 11, 1998) ($18,000.00 award for emotional
distress and mental suffering due to the denial of promotion).
Based on the foregoing, and considering the nature and severity of the
harm to the complainant, the actual duration of the harm, and limiting
the award to the issue for which the agency found discrimination, we
find that the AJ correctly determined that complainant is entitled to an
award of nonpecuniary damages in the amount of $15,000.00 for emotional
distress experienced in connection with the denial of employment. In so
finding, the Commission notes that while Dr. A indicated that there
was a connection between the nonselection and complainant's condition,
he also opined that complainant's condition could have resulted in part
from other factors not related to the discrimination. Nevertheless, the
complainant indicated that the discrimination caused him to disassociate
himself from family and friends, and experience anxiety, stomach problems,
difficulty sleeping, and weight loss. Complainant's wife confirmed that
he experienced these symptoms.
Pecuniary Damages
In the case at hand, we find that the AJ properly denied complainant's
claim for reimbursement for relocation expenses. Further, the AJ's denial
of that claim was reasonable. As stated by the AJ, the record fails
to show a causal connection between the nonselection and complainant's
traveling to South Carolina and then North Carolina for brief periods
of time. While complainant indicated that he was unable to secure
employment in Montana after the nonselection, he acknowledged declining
an interview shortly before leaving the area. Further, complainant
stated that he had no difficulty obtaining employment when he returned
to Montana after a period of seven months.
Although the AJ discussed complainant's claim for monetary damages
relating to medical expenses and insurance in the context of compensatory
damages, we do not find that the record supports a connection between the
birth of complainant's child and the discriminatory actions of the agency.
Accordingly, complainant is not entitled to any past pecuniary damages
related to these medical expenses. See, e.g., Flythe v. Department
of the Army, EEOC Appeal No. 01972258 (April 11, 2000). We do find,
however that these expenses are part of complainant's remuneration as
backpay of benefits which will be discussed below.
Equitable Relief
In his decision, the AJ found that, in order to remedy complainant for
the effects of the discrimination, the agency should provide him with
appropriate backpay, and benefits, including sick and annual leave,
insurance benefits, retirement contributions, overtime, out of schedule
pay, and retroactive seniority that would have accrued had complainant
entered on duty beginning September 20, 1995. Further, the AJ noted that
it was the agency's regular practice of converting a casual Custodial
Laborer performing at a satisfactory level to career status at the end
of 90 days once the employee passed an eligibility test. Thus, the AJ
stated that complainant should receive this benefit after completing his
probationary period, as well as any applicable promotions and cost of
living increases. We agree with the AJ's recommendation in this regard.
With regard to health insurance coverage, a backpay award should
compensate an employee for loss of health insurance either by reimbursing
him for health insurance premiums paid, or paying him for uninsured
medical expenses incurred during the relevant period up to the amount the
agency would have contributed to his health insurance premiums. Flythe,
supra; Wrigley v. USPS, EEOC Petition No. 04950005 (February 15, 1996);
Harrington v. Tennessee Valley Authority, EEOC Petition No. 04920010
(December 10, 1993). As such, the agency is required to pay, as part
of its backpay award, expenses incurred in obtaining medical insurance,
or medical expenses that he incurred from September 20, 1995, when he
would have entered on duty, until the time he was able to secure health
insurance, up to the amount that the agency would have contributed to his
health insurance premiums. Huyck v. Department of Defense, EEOC Request
No. 05980159 (July 10, 1998). Although the AJ's decision indicated
that complainant incurred $10,299.98 in expenses relating to obtaining
insurance and the birth of a child, we do not find such documentation
contained in the record. Therefore, in accordance with the Order below,
the agency shall seek documentation from complainant relating to these
medical expenses and reimburse complainant for all proven expenses.
CONCLUSION
Based upon a review of the record herein, it is the decision of the
Commission to MODIFY the agency's decision with regard to the issues of
equitable relief and compensatory damages.
ORDER
The agency is ORDERED to take the following remedial action:
1. The agency shall pay the complainant compensatory damages in the
amount of $15,000.00, less any sums paid, within thirty (30) calendar
days of the date this decision becomes final.
2. The agency shall, within sixty (60) calendar days, present
documentation that its backpay award to complainant includes compensation
for any health insurance premiums and medical expenses that complainant
paid because of the discrimination. Complainant shall cooperate
in providing the necessary documentation. If the backpay award did
not compensate complainant for said expenses, the agency shall award
additional backpay sufficient to cover the difference between what
complainant actually paid and what he would have paid had his coverage
been in effect on September 20, 1995. Any additional backpay award for
health care coverage shall not exceed the amount that the agency would
have paid to cover complainant's health insurance premiums, and shall
include appropriate interest.
3. The agency shall afford complainant the opportunity to be converted
to a career appointment, consistent with its regular practice at the
time of the nonselection. Pursuant thereto, the agency shall provide
complainant with appropriate benefits, including sick and annual leave,
insurance, retirement contributions, overtime and out of schedule pay,
retroactive seniority, and applicable promotions and pay increases.
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 evidence that 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 (K0900)
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)(Supp. V 1993). 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 (M0900)
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
July 19, 2001
__________________________________
Date
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days of mailing. I certify
that the decision was mailed to claimant, claimant's representative
(if applicable), and the agency on:
_________________________
Date
_________________________
1While complainant initially asserted that the agency failed to provide
him with backpay for the entire period prior to his entering on duty,
complainant subsequently noted that he had been paid for the period
in question.