01A03194
03-19-2003
Thomas P. Grady, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Thomas P. Grady v. United States Postal Service
01A03194
03-19-03
.
Thomas P. Grady,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A03194
Agency No. 1B-021-0014-98
Hearing No. 160-98-8661X
DECISION
INTRODUCTION
Complainant timely initiated an appeal from a final agency decision (FAD)
concerning his claim for compensatory damages following a finding that
he had been discriminated against in violation of the Section 501 of the
Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. �
791 et seq. The appeal is accepted pursuant to 29 C.F.R. � 1614.405.
ISSUE PRESENTED
The issue presented is whether the agency's February 2000 decision
properly awarded complainant $2,258.14 in compensatory damages.
BACKGROUND
The record indicates that complainant filed an EEO complaint alleging
discrimination on the basis of disability (ankle and foot reconstruction)
when his handicap parking accommodation was terminated. This violated
his EEO settlement agreement with the agency, dated September 26, 1994.
In September 1994, the agency and complainant entered into a settlement
agreement that provided the complainant with a parking space adjacent
to the General Mailing Facility (GMF). From September 1994 until April
25, 1997, the agency had provided complainant with this accommodation.
On April 17, 1997, however, complainant received a letter informing him
that, due to construction, his handicap parking space on Dorchester
Avenue would no longer be available and he would have to utilize the
parking assigned to him in the "A" Street Parking Lot and that a bus
would then transport him to the GMF. A rider of the bus must utilize
steps that are higher than six (6) inches for boarding and exiting.
The agency was informed, in letters dated December 12, 1994 and
January 30, 1997 from complainant's doctor, that because of his left
ankle fusion, it was not safe for him to ride the bus provided by
the agency. In February 1998, the doctor informed the agency that he
felt complainant should not ride the bus because it was an unsafe act.
An agency physician, who examined complainant on February 24, 1998, found
that he had a physical impairment which limited his ability to walk and
climb steps and that it was unsafe for him to ride the bus from the A
street lot to the GMF. On November 17, 1998, the agency began to provide
taxi service for the complainant between the GMF and the A Street lot.
On August 18, 1999, an EEOC Administrative Judge issued a decision
finding disability discrimination. The AJ found, among other things,
that (1) the agency was on notice that complainant had an impairment and
needed a reasonable accommodation; (2) the agency did not provide taxi
service to complainant until approximately a year and a half after his
parking spot was removed; during its first six months, the taxi service
accommodation was ineffective because of reliability concerns and the
stigmatizing effect it had on complainant; and (4) there was parking
space under the GMF that was never considered as an option because it
was designated for managers and supervisors.
The AJ ordered the agency to (1) provide complainant with temporary
parking privileges in the garage located under the GMF until his parking
spot was restored or another accommodation could be made; and (2)
assure complainant that he would not be subjected to retaliation for his
EEO activity. The complainant was directed, by the AJ, to cooperate
with the agency's efforts to determine whether he was entitled to
compensatory damages. On October 8, 1999, the agency issued a Notice of
Final Action (final action) which implemented the AJ's decision. In the
final action, complainant was informed about the type of evidence that
would be considered in deciding the amount of his compensatory damages.
He was also told that his evidence had to be submitted within sixty (60)
calendar days.
On December 9, 1999, complainant submitted evidence of his damages to
the AJ. The AJ, in a letter dated January 27, 2000, indicated that
the agency would determine the amount of compensatory damages because
his decision was issued prior to the Commission's revision of its
regulations on November 9, 1999. Complainant requested reconsideration
of that decision, on February 7, 2000, by the Chief AJ of the New
York District Office. On February 23, 2000, the request was denied.
On February 24, 2000, the agency issued a Notice of Final Action that
determined complainant's damages to be $258.14 in pecuniary damages and
$2,000.00 in non-pecuniary damages for a total of $2,258.14.
Complainant, seeking $188,613.54 in total damages, appealed the agency's
decision to the Commission. Among other issues raised by complainant,
he argued that under the Commission's revised regulations the AJ was
required to render a decision on compensatory damages and that his
refusal to do so was an error.
ANALYSIS AND FINDINGS
At the outset, we find that the agency's issuance of a decision in this
matter was proper. The Commission's November 1999 revisions to its
regulations, found at 29 C.F.R. Part 1614, were not in effect when the
AJ issued his decision finding discrimination and when he ordered the
agency to determine complainant's entitlement to compensatory damages.
Therefore, because the AJ's order was appropriate at the time, we find
that the agency acted properly. We will now address complainant's claim
for damages.
Pursuant to section 102(a) of the Civil Rights Act of 1991, a
complainant who establishes his or her claim of unlawful discrimination
may receive, in addition to equitable remedies, compensatory damages
for past and future pecuniary losses (i.e., out of pocket expenses)
and non-pecuniary losses (e.g., pain and suffering, mental anguish).
42 U.S. C. � 1981a(b)(3). For an employer with more than 500 employees,
such as the agency, the limit of liability for future pecuniary and
non-pecuniary damages is $300,000. Id.
The particulars of what relief may be awarded, and what proof is
necessary to obtain that relief, are set forth in detail in Compensatory
and Punitive Damages Available Under Section 102 of the Civil Rights
Act of 1991, EEOC Notice No. 915.002 (July 14, 1992) (Compensatory
and Punitive Damages). Briefly stated, the complainant must submit
evidence to show that the agency's discriminatory conduct directly or
proximately caused the losses for which damages are sought. Id. at 11-12,
14; Rivera v. Department of the Navy, EEOC Appeal No. 01934157 (July
22, 1994). We note that the agency does not contest that the agency's
discriminatory conduct was the proximate cause of complainant's losses.
The amount of non-pecuniary damages should also reflect the nature and
severity of the harm to the complainant, and the duration or expected
duration of the harm. Id. at 14.
Complainant submitted a claim for $175,000.00 in non-pecuniary damages.
In an affidavit, complainant indicated that because of the agency's
discriminatory actions:
he suffered from loss of sleep, loss of concentration, irritability,
mood swings and stomach problems;
he was diagnosed with depression and prescribed an antidepressant,
with increasing dosages, for 11 months;
his children moved out of the house because of his irritability;
his emotional condition manifested itself with physical outbreaks of
eczema, which were painful, unattractive and interfered with his sleep.
Complainant noted that his doctor attributed his condition to the parking
space issue;
his relationship with his wife was severely and negatively impacted by
the agency's discrimination;
prior to the agency starting the taxi service, he had to wake up early
(2:30 A.M. - 2:45A.M.) in order to arrive at work around 4:15 A.M. to
find a parking spot;
after the taxi service started, he had to watch non-disabled employees get
on the bus or walk to the parking lot while he had to wait on the taxi.
According to complainant, this served as a constant reminder of his
disability;
he was taunted while waiting for a taxi when an employee asked if he
were waiting for the �cripple cab.�
his co-workers regularly made jokes about his waiting for the taxi;
he also felt embarrassed by the looks he received that made him feel as
though he were on an examining table;
he suffered recurring physical pain and discomfort while waiting for
the taxi. Complainant indicated that he did not have certain glands
in his foot that circulate his body fluids, this prevented him from
standing for long periods. However, because there was no place to sit
at the location where he waited for the taxi, he was forced to stand
and wait which caused his leg to swell causing him pain;
because of the unreliable taxi service, he was often late for after-work
appointments for himself and mother, who moved in with him after suffering
a stroke.
Complainant's wife and daughter also submitted unsworn statements.
According to complainant's wife, he, over a two year period, went into
a deep depression over the parking situation. She stated that his
personality completely changed and that he became quick tempered and
argumentative. She described her life with complainant as �living with
a stranger instead of my husband.� Even when he took his medication,
complainant's wife indicated that he, although no longer violent,
became �very non-social.� Noting that their intimate life was affected,
complainant's wife indicated that a strain was placed on the marriage and
that she did not know if things would ever back to where it once was,
before everything got started. According to complainant's daughter,
her father, �became a person I didn't know anymore and honestly a person
I didn't want to know or associate with.� She also indicated that �he
became intolerable to live with, we all had to walk on eggshells in fear
of setting his quick temper off.�
Like the agency, we note the absence of any medical statements that would
support complainant's claim. However, the Commission has held that
evidence from a health care provider is not a mandatory prerequisite
for recovery of compensatory damages. See 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." See Wulf v. City
of Wichita, 883 F.2d 842, 875 (10th Cir. 1989). A complainant's own
testimony, along with the circumstances of a particular case, can suffice
to sustain his/her burden in this regard. Nonetheless, the absence of
supporting evidence may affect the amount of damages deemed appropriate
in specific cases. See Lawrence v. USPS, EEOC Appeal No. 01952288
(April 18, 1996).
As noted above, complainant requested $175,000 in non-pecuniary
compensatory damages. Taking into account the evidence of non-pecuniary
damages submitted by the complainant and the lack of supporting medical
documentation, we find his request to be excessive. Complainant
is entitled to non-pecuniary damages in the amount of $35,000.00.
This amount takes into account the severity and duration of the harm
done to complainant by the agency's actions.<1> Furthermore, this sum
is meant to compensate complainant for the aggravation of his condition
and the resulting physical manifestations. However, this amount takes
into account that, unlike cases where greater damages were awarded,
complainant's injury did not render him totally incapacitated either
for work or in his personal life. 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.<2>
Complainant also submitted a claim for $13,613.54 in pecuniary damages.
These damages were listed as follows:
1. $27 per hour for the 35.7 hours he spent waiting for a taxi, for a
total of $963.90;
2. $27 per hour for leaving for work 1.5 hours early to find a parking
spot on 293 days, for a total of $11,866.50;
3. $.33 per mile for wear and tear on his vehicle for driving one mile
per day to find a space near the GMF, for a total of $96.69;
4. $600.00 for eight (8) office visits to a primary care physician
($75.00/visit);
5. $76.45 for the antidepressant amitryptiline (11 months at $6.95/month);
and
6. $10.00 for cetaphil to treat eczema.
The agency awarded complainant $96.69 for the wear and tear on his
vehicle, $76.45 for antidepressants, $10.00 for eczema cream, and $75.00
in payments for his co-payments to his doctor. As noted above, the total
awarded for pecuniary damages was $258.14. Because there is no dispute
regarding complainant's entitlement to reimbursement for the wear and
tear on his vehicle, antidepressants and eczema cream, we find that it
is unnecessary to address these claims in this decision. The agency,
assuming it has not already done so, will be directed to provide these
expenses to complainant below.
With regard to complainant's claim for $600.00 for eight office visits,
i.e., $75.00 per visit, the agency only reimbursed him for the amount that
he actually expended in co-payments, which was $75.00.<3> On appeal,
complainant correctly argued that, under the collateral source rule,
the agency may not reduce its liability for damages because of payments
made to complainant from a collateral source.<4> Thus complainant is
required only to prove that he incurred the expenses in
order to establish his entitlement to a corresponding damage award.
He need not make the additional showing that he paid the expense.
However, we find no evidence in the record that establishes that his
eight office visits were billed at $75.00 per visit and that they totaled
$600.00. Without such evidence, we find the agency acted properly when
it awarded him $75.00, the only expense that he proved he incurred.
Again, the agency, assuming it has not already done so, will be directed
to provide this expense to complainant.
On appeal, complainant acknowledged that his claims for time spent looking
for a parking space and waiting for the taxi service are not �properly
characterized as pecuniary damages,� but should be considered back pay.
Complainant further stated that:
The time spent did not cause complainant any out-of-pocket expenses,
but rather he seeks compensation for time the employer required him to
perform services that were a direct adjunct to his employment. As a
result, it is properly characterized as a claim for back pay and comes
within the traditional remedies available under the Rehabilitation Act.
The time required to find a parking space and wait for the taxi service
is the equivalent of standby time.
Notwithstanding the complainant's assertions otherwise, we find that
these claims can not be properly characterized as back pay. There is no
evidence that complainant, while driving around looking for a parking
spot or waiting for taxis, was performing services for the agency or was
in any way under the agency's control.<5> Therefore, we find that this
expense was properly disallowed by the agency.
CONCLUSION
Therefore, after a careful review of the record, including complainant's
contentions on appeal, the agency's response, and arguments and evidence
not specifically addressed in this decision, we MODIFY the agency's
final decision regarding compensatory damages.
ORDER
The agency is ordered to take the following remedial action:
The agency shall, within sixty (60) days of the date on which this
decision becomes final, tender to complainant non-pecuniary damages in
the amount of $35,000.00.
The agency shall, within sixty (60) days of the date on which this
decision becomes final, calculate and tender to complainant $258.14 in
pecuniary damages.
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 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 (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
____03-19-03______________
Date
1In this regard, we note the AJ's determination that the agency did
not provide taxi service to complainant until approximately a year and
a half after his parking spot was removed; and that, during its first
six months, the taxi service accommodation was ineffective because of
reliability concerns and the stigmatizing effect it had on complainant.
2See, e.g., Feris v. Environmental Protection Agency, EEOC Appeal
No. 01983167 (September 18, 1998)(awarding $35,000 for agency's failure to
accommodate complainant's disability over a period of time which resulted
in tension, damage to self-esteem, anxiety, anger and sleeplessness).
3Complainant provided seven receipts for $10.00 each and one receipt
for $5.00.
4Wallis v. United States Postal Service, EEOC Appeal No. 01950510
(November 13, 1995).
5In his affidavit, complainant also indicated that he was entitled to 18
hours of restored annual leave which was taken because of the unreliable
taxi service. A request for compensation for leave taken or leave
restoration is a claim for equitable relief, not compensatory damages.
McGowan-Butler v. Department of Treasury, EEOC Request No. 05940636
(September 9, 1994). As stated above, this is a matter that should
have been properly raised in an appeal from the agency's October 8,
1999 final decision, not in the present appeal.