01a32993final
04-22-2004
James McCleese, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, (Eastern Area) Agency.
James McCleese v. United States Postal Service
01A32993
April 22, 2004
.
James McCleese,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
(Eastern Area)
Agency.
Appeal No. 01A32993
Agency No. 4C-442-1073-96
Hearing No. 22-97-5061
DECISION
Complainant timely initiated an appeal from the agency's final
order concerning his equal employment opportunity (EEO) complaint 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. The appeal is accepted pursuant
to 29 C.F.R. � 1614.405. For the following reasons, the Commission
affirms the agency's decision to implement the AJ's denial of an award
for pecuniary damages and attorney's fees and modifies the agency's
final order regarding non-pecuniary damages.
The record reveals that in our previous decision, the Commission concluded
that the agency discriminated against complainant when it failed to
provide him with a reasonable accommodation of a workstation in close
proximity to the restroom.<1> The Commission also concluded that the
agency did not act in good faith when it denied complainant a reasonable
accommodation, and decided that compensatory damages were an appropriate
remedy. We remanded the matter to the EEOC Administrative Judge (AJ) for
a determination regarding compensatory damages costs and attorney's fees.
The AJ decided that there was no proof of pecuniary or out-of-pocket
expenses which were related to the discriminatory conduct, but awarded
$2,500.00 in non-pecuniary damages based on complainant's testimony.
Specifically the AJ concluded that complainant established that he
suffered pain as a result of having to walk an obstructed path to the
restroom which caused him to slip numerous times, causing his knee to
give out. The AJ found that complainant's testimony was corroborated
by evidence that complainant received worker's compensation for his knee
condition shortly after his return to work from knee surgery.
In addition, the AJ determined that although complainant testified
about permanent damage to his knee as a result of a twist and fall,
he was limited in his recovery by the Commission's findings that the
discriminatory conduct did not begin until after he specifically notified
the agency in March 1996. The AJ's award of attorney's fees are not
being contested in this appeal.
On appeal, complainant submits no additional arguments and the agency
requests that we affirm its final action implementing the AJ's decision.
ANALYSIS AND FINDINGS
When discrimination is found, the agency must provide complainant with
an equitable remedy that constitutes make-whole relief to restore
her as nearly as possible to the position she would have been in
absent discrimination. See e.g. Franks v. Bowman Transportation Co.,
424 U.S. 747, 764 (1976). Section 102(a) of the Civil Rights Act
of 1991 (the CRA 1991), Stat. 1071, Pub. L. No. 102-166, codified as
42 U.S.C. Section 1981a, authorizes an award of compensatory damages
as part of the �make whole� relief for intentional discrimination in
violation of Title VII of the Civil Rights Act of 1964, as amended.
Section 1981a(b)(2) indicates that compensatory damages do not include
back pay, interest on back pay, or any other type of equitable relief
authorized by Title VII. Section 1981a(b)(3) limits the total amount
of compensatory damages that may be awarded to a complaining party for
future pecuniary losses, emotional pain, suffering, inconvenience, mental
anguish, loss of enjoyment of life, and other non-pecuniary losses,
according to the number of persons employed by the respondent employer.
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 (7/22/94)
recons. den. EEOC Req. No. 05940927 (Dec. 11, 1995); Compensatory and
Punitive Damages Avail. Under Sect. 102 of the Civil Rights Act of
1991,(Guidance) EEOC Not. No. 915.002 (July 14, 1992), at 11,14.
Here, the AJ reached a decision after hearing testimony and considering
documentary evidence. We uphold the AJ's decision if supported
by substantial evidence in the record. 29 C.F.R. � 1614.405(a).
A decision regarding compensatory damages is a question of fact. Cooper
Industries, Inc. v. Leatherman Tool Grp. Inc., 532 U.S. 424, 437 (2001).
(The measure of actual damages suffered presents a question of historical
or predictive fact.) Boehms v. Crowell, 139 F3d 452, 459 (5th Cir. 1998)
(absent error of law, the courts award of compensatory damages presents an
issue of fact.) We note that complainant testified that he did not have
any receipts for his medical expenses. Such lack of evidence supports the
AJ's conclusion that he was not entitled to recover for out-of-pocket or
pecuniary damages. Guidance at 9. A review of complainant's documentary
evidence indicates that they concern complainant's asthmatic condition
which was not found to be related to the discriminatory conduct. Other
documents related to leave taken for complainant's medical conditions
predate the agency's 1996 discriminatory conduct and are therefore,
not appropriately recoverable. For these reasons, we affirm the AJ's
decision that no award for pecuniary damages was appropriate.
Turning to the issue of non-pecuniary damages, we examine whether the
AJ's award is consistent with other Commission decisions concerning
similar factual circumstances. Here, the AJ concluded that complainant
established that he suffered pain as a result of having to walk an
obstructed path to the restroom, and that he slipped numerous times,
causing his knee to give out. In April 1996 just after returning from
knee surgery, complainant fell as a result of the obstructed pathway to
the restroom. The record also reflected that complainant's condition
was described as degenerative joint disease about which the agency was
aware prior to its failure to accommodate him in 1996. His physician
rated the severity of his knee condition as a 60% permanent partial
disability to his knees, although there is no evidence his condition
was worsened as a result. Thus, we must account for the fact that
complainant had a pre-existing condition not entirely related to the
agency's discriminatory conduct.
The AJ did not address complainant's mental depression which his medical
records reflect was exacerbated by the discrimination. In February 1997,
complainant's psychiatrist and psychologist describe the prognosis for his
depression as poor which they connected to his physical limitations caused
by his injuries. As of November 1996, several months after his fall,
his psychologist described his then current psychological condition as
�chronologically depressed secondary to his accidents.� In addition,
complainant testified that he lives in constant pain from his knee
condition, that he could not sleep and had to consult with Employee
Assistance Program (EAP) counselors, psychologists and psychiatrists
because of the stress he felt from his medical conditions. He stated
that his inability to control the pain caused more arguments within his
family and increased agitation and anger. As a result he has withdrawn
from other people. Complainant's emotional distress lasted at least
from the time he left the agency due to his medical conditions, in May
1996 to the time of the hearing in September 2002.
The AJ did not cite specific Commission authority or support for her
finding of the award for non-pecuniary damages for emotional distress.
The Commission normally looks to similar cases in terms of the nature,
duration and severity of the discrimination. In similar cases, the
Commission has generally awarded more for emotional distress related
to the failure to accommodate knee conditions. Hardee v. Department
of the Navy EEOC Appeal No. 01993378 (March 29, 2001) ($7,500.00 for
complainant's emotional distress related to pre-existing knee condition
not reasonably accommodated); Wooten v. U.S. Drug Administration,
EEOC Appeal No. 01960727 (August 28, 1997) ($10,000.00 awarded for
failure to accommodate a knee condition for two month duration,
termination cancelled); Wimberly v. United States Postal Service,
EEOC Appeal No. 01A23646, recon. den. 05A30980 (September 22, 2003)
($8,500.00 failure to accommodate with light duty work complainant's
chondromylacia patellae). Based on this line of cases which present
discriminatory conduct of a similar nature and duration and supporting
testimony of emotional distress of a similar nature, and considering other
factors which may have contributed to complainant's emotional distress,
we modify the award for non-pecuniary damages to $7,500.00.
CONCLUSION
For the foregoing reasons, we affirm, in part, the agency's final decision
which implemented the AJ's decision denying an award for pecuniary damages
and attorney's fees. We modify the agency's decision to implement the
AJ's award of non-pecuniary damages as indicated below.
ORDER (C0900)
The agency is ordered to take the following remedial action:
The agency will pay complainant the amount of $7,500.00 in non-pecuniary
damages within 30 days of the date this order becomes final.
The agency will pay complainant $13,543.50 in attorney's fees 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 (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 (S0900)
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, Director
Office of Federal Operations
April 22, 2004
__________________
Date
1McCleese v. United States Postal Service,
EEOC Appeal No. 01981286 (October 19, 2001.