0120093891
03-15-2012
Andrzej J. Rafalski, Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service (Capital Metro Area), Agency.
Andrzej J. Rafalski,
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service
(Capital Metro Area),
Agency.
Appeal No. 0120093891
Hearing No. 100-2006-00196X
Agency No. 4K-220-0062-05
DECISION
Complainant filed a timely appeal from an Agency's final decision, dated August 24, 2009 regarding the award of compensatory damages, pursuant to a finding by the Equal Employment Opportunity Commission (EEOC or Commission) of unlawful employment discrimination in violation of Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq. and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq. Complainant's appeal is accepted pursuant to 29 C.F.R. � 1614.405. For the following reasons, the Commission MODIFIES the Agency's decision.
BACKGROUND
During the relevant time, Complainant worked as a limited duty Mail Processing Clerk at the main post office in Fairfax, Virginia. Complainant suffered from a degenerative disc disease of his lumbar spine. In approximately March 2005, Complainant asked his supervisor to buy an ergonomic chair as an accommodation for his back injury. In April 2005, Complainant put his request in writing. In response, the Agency sought supporting documentation. Complainant provided a response in May 2005, including a prescription from his physician. While the Agency continued to process the request for an ergonomic chair, in early July 2005, Complainant also requested an ergonomic work station. When the Agency failed to provide a reasonable accommodation, Complainant sought EEO counseling.
On August 10, 2005, Complainant filed a formal complaint based on age, disability and reprisal. After the investigation, Complainant requested a hearing before an EEOC Administrative Judge (AJ). The matter was assigned to an AJ. The AJ, however, sanctioned Complainant for failing to submit a pre-hearing report by remanding the matter to the Agency for a decision. On June 23, 2006, the Agency issued a decision finding no discrimination. Complainant appealed the decision to the Commission.
On appeal, the Commission found that Complainant had not been subjected to discrimination on the basis of age or reprisal. However, the Commission found that the Agency failed to provide Complainant with a reasonable accommodation as of July 7, 2005, the date when the Agency possessed sufficient medical documentation supporting Complainant's need for an ergonomic chair and ergonomic work station. Further, the Commission found that the Agency did not demonstrate that it made a good faith effort to provide an accommodation, and therefore Complainant was entitled to compensatory damages. We noted that the Agency tried to place responsibility for the accommodation with the Department of Labor, and justified its delay with meritless excuses such as lacking the authority or funds necessary to purchase the equipment. The Agency was ordered to conduct a supplemental investigation and issue a new decision on compensatory damages. Rafalski v. United States Postal Service, EEOC Appeal No. 0120064487 (March 26, 2009).
It is that August 24, 2009 decision that is the subject of the instant appeal.
ANALYSIS AND FINDINGS
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 EEOC Notice No. 915.002, Compensatory and Punitive Damages Available Under Section 102 of the Civil Rights Act of 1991 (July 14, 1992). Briefly stated, 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. Dep't. of the Navy, EEOC Appeal No. 01934157 (July 22, 1994). The amount awarded should reflect the extent to which the Agency's discriminatory action directly or proximately caused harm to Complainant and the extent to which other factors may have played a part. EEOC Notice No. N 915.002 at 11-12. The amount of non-pecuniary damages should also reflect the nature and severity of the harm to Complainant, and the duration or expected duration of the harm. Id. at 14.
In the instant case, the Agency determined that Complainant was not entitled to any pecuniary damages and was entitled to $2,500.00 in non-pecuniary damages. Complainant argues that the Agency has not provided him an ergonomic workstation, and that it has not disciplined or trained the responsible management officials. He contends that the denied accommodation severely aggravated his back and leg pain, causing depression, sleeplessness, anxiety, and problems concentrating. Complainant believes he is entitled to approximately $65,000.00 in damages.
Pecuniary Damages
Pecuniary losses are out-of-pocket expenses that are incurred as a result of the employer's unlawful action. Typically these damages include reimbursement for medical expenses, job-hunting expenses, moving expenses, and other quantifiable out-of-pocket expenses. Enforcement Guidance: Compensatory and Punitive Damages Available Under Section 102 of the Civil Rights Act of 1991, EEOC Notice No. 915.002 (July 14, 1992), at 14. Past pecuniary losses are losses incurred prior to the resolution of a complaint through, among other things, a finding of discrimination. Id. at 8-9. Future pecuniary losses are losses that are likely to occur after resolution of a complaint. Id. at 9. For claims seeking pecuniary damages, such objective evidence should include documentation of out-of-pocket expenses for all actual costs and an explanation of the expense, e.g., medical and psychological billings, other costs associated with the injury caused by the agency's actions, and an explanation for the expenditure. Id. at 9.
Complainant seeks $1,250.00 in reimbursement for doctor visits and medications. In its decision, the Agency stated that there was no evidence to support such a large request. According to the Agency, it was only responsible for the increased harm to Complainant's condition. Complainant did not present medical evidence establishing that his back condition worsened when his chair was not replaced in a timely manner. Regarding his high blood pressure, the Agency argues that there was no evidence when this developed or if it was caused by the lack of an ergonomic chair. It believes Complainant should not be awarded any pecuniary damages.
In support of his request, Complainant only provides two documents: one listing co-payments for prescriptions, totaling $16.00 and another for $45.00. Therefore, we find Complainant is entitled to $61.00 in pecuniary damages.
Non-pecuniary Damages
In Carle v. Dep't of the Navy, the Commission explained that "objective evidence" of non-pecuniary damages could include a statement by Complainant explaining how he was affected by the discrimination. EEOC Appeal No. 01922369 (Jan. 5, 1993). Statements from others, including family members, friends, and health care providers could address the outward manifestations of the impact of the discrimination on the complainant. Id. Complainant could also submit documentation of medical or psychiatric treatment related to the effects of the discrimination. Id. Non-pecuniary damages must be limited to the sums necessary to compensate the injured party for the actual harm and should take into account the severity of the harm and the length of the time the injured party has suffered from the harm. Carpenter v. Dep't. of Agric., EEOC Appeal No. 01945652 (July 17, 1995).
The Commission applies the principle that "a tortfeasor takes its victims as it finds them." See Wallis v. U.S. Postal Serv., EEOC Appeal No. 01950510 (Nov. 13, 1995) (quoting Williamson v. Handy Button Mach, Co., 817 F.2d 1290, 1295 (7th Cir. 1987)). However, 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 preexisting 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 is 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. U.S. Postal Serv., EEOC Appeal No. 01942985 (April 29, 1997). The Commission notes, therefore, that Complainant is entitled to recover damages only for injury, or additional injury, caused by the discrimination. See Terrell v. Dep't of Hous. & Urban Dev., EEOC Appeal No. 01961030 (Oct. 25, 1996); EEOC Notice No. N 915.002 at 12.
Based upon a review of the instant record, we find that the Agency's award of non-pecuniary damages should be increased to $20,000. While Complainant suffered from back problems prior to the discriminatory actions, it is reasonable to find that the denial of a doctor-prescribed accommodation (i.e. an ergonomic chair) for approximately eighteen months resulted in an aggravation of his condition. Moreover, Complainant attested the he suffered from depression, sleeplessness, irritability, problems with concentration and loss of self-esteem. This award is not "monstrously excessive" standing alone, is not the product of passion or prejudice, and is consistent with the amount awarded in similar cases. See Price v. Dept. of Justice, EEOC Appeal No. 07A20104 (September 24, 2003) ($25,000.00 where complainant experienced stress, embarrassment, and mental anguish); Flowers v. United States Postal Service, EEOC Appeal No. 01A43114 (October 7, 2004), request for recon. denied, EEOC Request No. 05A50243 (January 11, 2005)($20,000.00 where complainant established that, despite other contributing factors, discrimination resulted in sleeplessness, depression, emotional distress, anxiety, loss of enjoyment of life and strained family relationships); Farrell v. Dept. of Treasury, EEOC Appeal No. 07A20043 (May 5, 2003)($20,000.00 where discrimination resulted in insomnia, anxiety, stress, depression, loss of enjoyment of life).
Back Pay and Leave Restoration
As noted in the Agency's decision, Complainant also requested back pay and the restoration of leave. The Agency reasoned that such remedies were beyond what was ordered by the Commission. Alternatively, Complainant failed to present objective evidence that his leave usage was caused by the discrimination. Moreover, if any of the leave used was related to the injury approved by the Federal Employee Compensation Act, then the remedy lies with OWCP. A review of our prior decision reflects that Complainant was not awarded back pay or leave restoration.1
New Claims
Finally, Complainant contends on appeal that, to date, the Agency has failed to provide him with an ergonomic work station and that he has had further difficulties with the ergonomic chair the Agency eventually provided. The Commission finds that this matter is a new claim of discrimination. To the extent that Complainant wishes to pursue this claim through the EEO process, he is advised to contact an EEO Counselor. The date of his brief on appeal, September 14, 2009, shall be considered the date EEO Counselor contact was initiated unless Complainant contacted a counselor about these matters at an earlier date.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, we MODIFY the Agency's decision.
ORDER
Within thirty (30) calendar days of the date which this decision becomes final, the Agency is Ordered to take the following remedial action:
1. Pay Complainant $61.00 in pecuniary damages.
2. Pay Complainant $20,000.00 in non-pecuniary damages to the extent it has not already done so.
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.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0610)
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 (M0610)
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), at 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 (S0610)
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 (Z0610)
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
March 15, 2012
__________________
Date
1 If Complainant wanted to challenge the award issued he should have filed a Request for Reconsideration with the Commission, as set forth in the rights included in our prior decision.
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U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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