0120091359
03-09-2010
Joseph J. Mulvaney, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, (Southeast Area), Agency.
Joseph J. Mulvaney,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
(Southeast Area),
Agency.
Appeal No. 0120091359
Agency No. 4G780008906
DECISION
On February 7, 2009, complainant filed an appeal from a final agency
decision (FAD) dated February 5, 2009, concerning his equal employment
opportunity (EEO) complaint alleging 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. The appeal is deemed timely and
is accepted pursuant to 29 C.F.R. � 1614.405(a).
In Mulvaney v. United States Postal Service, EEOC Appeal No. 0120071617
(October 9, 2008), the Commission found that complainant was discriminated
against based on reprisal for prior EEO activity when on November 29,
2005, the agency denied his written request dated November 20, 2005 to
transfer to the agency's Corpus Christi, Texas facility. At the time,
he was a laborer custodial, PS-3, with the agency's McAllen, Texas Main
Post Office. He requested the transfer to "any openings."
In Mulvaney, the Commission ordered the agency to investigate what
position complainant was requesting a transfer to, and then offer him
the position to which he was seeking. It also ordered the agency,
in relevant part, to conduct a supplemental investigation to determine
whether complainant was entitled to back pay and compensatory damages
as a result of the agency's discriminatory action.1
Complainant's November 20, 2005, transfer request to the plant manager
read:
I would like to request that you consider me for any openings at
Corpus Christi, TX. I am presently working as a level 3 custodian at
the McAllen Post Office, McAllen TX. I have also worked as a level
2 custodian in McAllen. I am also qualified to work as a mail handler
because I worked 2 years as one in Des Moines, Iowa at P&DC [processing &
distribution center].
The November 29, 2005, reply by the acting plant manager of the Corpus
Christi P&DC read:
I received your request and understand this is in litigation through the
EEO process; therefore, I will wait for the results of that process for
action, if necessary.
On remand, the agency investigated positions complainant identified in
prior requests to transfer to the Corpus Christi P&DC. These requests
were made online using a system called eReassign. In one request,
which complainant repeatedly renewed, his first prior choice was to be
a mail handler, his second laborer custodian, and his third custodian.2
In another prior eReassign request, complainant's first choice was
motor vehicle operator. On remand, the agency asked complainant what
position he requested on or about November 20, 2005, and he replied
the number one was mail handler, and also maintenance craft positions.
Custodians are in the maintenance craft.
While the supplemental investigation included information on prior
transfer requests, we find that the November 20, 2005, request was
separate and distinct from them. This is consistent with our ruling
in Mulvaney v. United States Postal Service, EEOC Appeal No. 01A62756
(August 7, 2006). Therein, the Commission reversed the agency's initial
dismissal of the instant complaint, finding that the November 29, 2005,
denial was separate and distinct from a prior denial of transfer denial
that occurred in July 2005, on which complainant filed a prior complaint.3
In appealing the dismissal, complainant wrote that the November 29,
2005, denial was not part of a prior complaint, but rather, was the
latest effort of the agency to harass him. Likewise, in the instant
complaint complainant indicated that the fact that he previously filed
a complaint had nothing to do with the transfer request, and the refusal
to consider the request was retaliatory.
In its final decision, the agency found that based on the wording of
complainant's November 20, 2005, request, he was not entitled to a
higher level position and resulting back pay, suggesting he was asking
first for a custodial position. On appeal, complainant contends that at
some unspecified time a supervisor stated they always have mail handler
positions available. In opposition to complainant's appeal, the agency
reiterates the finding in its FAD, and adds complainant did not identify
a vacant mail handler position for the relevant time.
Complainant does not contend that outside the language in his November
20, 2005 request, he communicated to the acting plant manager which
position he was requesting then. The supplemental investigation shed
no additional light on the precise meaning of the request. Given this,
and because it was a separate and independent request, we look to the
language therein to determine which position complainant was requesting.
Complainant wrote that he would like to be considered for any openings,
that he was presently a level 3 custodian, had worked as a level 2
custodian, and was also qualified to work as a mail handler because he
worked as one for two years in a prior facility. Based on this wording,
we find complainant was highlighting the position of level 3 custodian
since he wrote he was working as one now, not mail handler, which he
wrote he was also qualified based on prior experience elsewhere.4 Since
the denial of the transfer request did not involve a promotion denial,
we find complainant is not entitled to back pay and related benefits.
The record reflects that in May 2006, complainant was promoted from
laborer custodial, PS-3, to maintenance mechanic, PS-6. On June 20, 2007,
the agency and the union entered into a grievance settlement relocating
complainant to the same job and pay level to the Corpus Christi, P&DC,
effective July 7, 2007, with a seniority date of April 1, 2006, at
the Corpus Christi, P&DC. He was promoted to the PS-7 level around
April 2008. While complainant's job and wages were not impacted by
the denial of transfer in November 2007, nor his seniority in his new
job craft, one other type of seniority may have been impacted, i.e.,
a Corpus Christi P&DC facility or plant seniority list, to the extent
this exists separate from craft seniority. Had the transfer not been
denied, it is likely it would have been effective about a week later,
or December 6, 2005. Accordingly, to the extent the Corpus Christi P&DC
has a separate facility or plant seniority list, independent from the
craft job seniority list, make whole relief would include adjusting the
facility or plant seniority to December 6, 2005.
Complainant also made a claim for compensatory damages. He contended
that in June 2004 his request to swap jobs with a custodian in Corpus
Christi was approved, but the deal fell through in July 2004. Meanwhile,
according to complainant, he sold his home and moved into a hotel.5
On remand, complainant contended that he had a home in Corpus Christi,
and as a result of the discrimination he had to maintain two abodes from
November 20, 2005 until his transfer on July 21, 2007. He wrote that
the motel charge was $525 monthly, and requested reimbursement of this
expense and the cost of eating out in McAllen during the relevant period.
Complainant contended that he made weekend trips between his two abodes,
driving 330 miles, but does not state how often he made these trips.
For the remand investigation on back pay and compensatory damages,
complainant submitted a Department of Veterans Affairs (VA) decision
dated March 7, 2007, which indicated he had bruxism, or grinding of the
teeth, since at least October 2000. In the decision the VA recounted
that complainant testified in March 2003 that he had problems eating
some things due to jaw pain, that x-rays in August 2003 showed minor to
moderate generalized periodontal bone loss and intercrestal blunting,
and that medical examinations in 2005 showed he was missing four teeth,
had crowns on a number of molar teeth, and had a diagnosis of myofacial
pain dysfunction secondary to parafunctional bruxism habit. The VA
found there was no lost masticatory surface that could not be restored,
and that under its regulations, complainant's condition did not rise to
the level of a compensable disability.
In his November 2008 remand submission, complainant contended that being
subjected to a hostile work environment which continued to this day
caused stress, aggravating his bruxism and causing teeth and jaw damage.
Complainant submitted medical notes. One dated June 22, 2007 indicated
a diagnosis of bruxism, and another dated August 20, 2008, indicated he
started grinding around 1999 or 2000, had a history of breaking teeth,
suffered from extreme sensitivity, had difficultly chewing food, and
needed additional dental work. A medical document dated September 9,
2008, stated that complainant was a severe bruxer, causing severe wear
on anterior teeth, and there was a treatment plan of crowning over half
his teeth.
Complainant contended that in May 2007, he starting coughing up
blood, and in June 2007 medical testing confirmed he had an ulcer.
He submitted medical documentation showing an official diagnosis in
June 2007 of gastritis, and indicating a recent bleed. The most recent
medical documentation on this was a brief note indicating a diagnosis
of gastritis dated July 13, 2007, and treatment with prilosec [the
branded version of omeprazole]. In his November 2008 remand submission,
complainant contended that his ulcer was caused by stress from working in
a retaliatory hostile work environment for a few years which continued
to this day, and that the bruxism and ulcer cause a high level of pain.
Complainant indicated that since May 2008, he took omeprazole for his
ulcer, with monthly co-pays of $8, and would be taking it to a future
unknown date.
Complainant also contended that he had headaches as a result of his
denial of transfer.
On remand, complainant requested costs and attorney fees. He requested
$500 in costs for needing a post office box, and his EEO mailings.
Complainant did not breakdown these costs. He also requested $1,500 in
attorney fees. Complainant's remand affidavit on remedies was drafted
by an attorney.
In its final decision, the agency determined that while there was
no medical documentation showing complainant's gastric problems
were directly caused by the denial of transfer, it would assume his
condition was affected in some way by the denial. It awarded complainant
$2,000 in non-pecuniary damages for his ulcer condition, and agreed to
reimburse complainant for the $8 co-pays for May, June and July 2007,
even though there were no receipts, for a total of $24. The agency cut
off the payment after July 2007 since the latest medical note indicated
he was taking prilosec. The agency found that complainant was not
entitled to future pecuniary damages for the medication since there was
no information in the record on the length of time the condition was
expected to continue.
The agency denied complainant any damages related to his grinding and
consequent teeth and jaw problems. It found that this was a pre-exiting
condition, and complainant did not show that the denial of his transfer
request in November 2005 contributed to this.
The agency denied complainant reimbursement of the expense for living
in a motel, driving back and forth to Corpus Christi, Texas, and what
complainant characterized as per diem expenses of eating out while
in McAllen. Regarding the motel expense, the agency found it was not
liable for complainant's decision to sell his home and move into a motel
in 2004. Regarding all these expenses, the agency found that complainant
provided no statements, receipts or other documentation to support that
he incurred additional living expenses. It found that per diem is only
for official travel authorized by management for business purposes.
The agency found that complainant was not entitled to costs for renting
a post office box, since he presumably also received his personal and
other mail there, and he did not explain why he could not receive
mail where he lived. Regarding mailing expenses, the agency found
that while complainant did not provide receipts, a review of mailing
envelopes documented mailing costs of $46.56, and it awarded this amount.
On attorney fees, the agency noted that complainant requested $1,500
in fees in his remand affidavit. The agency noted that the affidavit
appeared to be the extent of the attorney's involvement in the case,
and it was not accompanied by a copy of an invoice or a fee petition.
Nevertheless, the agency awarded $200 in attorney fees.
On appeal, complainant writes that he has receipts for his motel expenses
and litigation costs, but does not submit any. Regarding his ulcer,
complainant writes it still causes daily pain, he lost a week of work
in September 2008, and now requires two more medications, in addition
to omeprazole. He writes his monthly co-pay for the medication is $16,
and submits a receipt indicating this for January 2009. Complainant
contends that the harassment and retaliation continue to this day,
along with the teeth and jaw damage from the stress. He writes that he
hired the attorney to handle the compensatory damages part of his case
attributed to his medical conditions, and was charged a non-refundable
retainer of $1,500. In opposition to the appeal, the agency argues that
the FAD should be affirmed.
Compensatory damages may be awarded for past pecuniary losses, future
pecuniary losses, and nonpecuniary losses that are directly or proximately
caused by the agency's discriminatory conduct. Compensatory and Punitive
Damages Available Under Section 102 of the Civil Rights Act of 1991 (July
14, 1992) (available at www.eeoc.gov.) Nonpecuniary losses are losses
that are not subject to precise quantification including emotional pain
and injury to character, professional standing, and reputation. Id.
We agree with the agency's finding that complainant has not shown that
his bruxism and related damage and symptoms are directly or proximately
caused or aggravated by the agency's denial of transfer in November 2005.
None of medical documentation in the record in any way explains the
cause of the bruxism. The condition started around 1999 or 2000, and
the medical evidence indicates it has continued unabated, even long
after complainant was transferred in July 2007.
By the same token, we note that none of the medical documentation in the
record in any way explains the cause of complainant's gastritis. In its
final decision, the agency assumed that it was caused by the denial of
transfer in November 2005. In calculating the amount of compensatory
damages to award, the agency noted that the most recent medical
documentation complainant submitted on it was from July 2007. On appeal,
complainant contends his ulcer continues to this day, with daily pain.
Given that there is no medical documentation in the record linking the
gastritis to stress, let alone the denial of transfer in November 2005,
we are not inclined to move beyond the agency's award of compensatory
damages for the gastritis. We note that complainant was transferred
in July 2007, but attributes his gastritis to an alleged hostile work
environment that, among other things, continues to this day.
In the Commission's policy guidance of Compensatory and Punitive Damages
Available Under Section 102 of the Civil Rights Act of 1991, Section II
(A)(1) (July 14, 1992) (located at www.eeoc.gov), the Commission advised
that the amount to be awarded for past pecuniary losses can be determined
by receipts, records, bills, cancelled checks, confirmation by other
individuals, or other proof of actual losses and expenses. Damages for
past pecuniary damages will not normally be sought without documentation.
Id. The EEOC has stated that documentation, typically in the form of
receipts, bills, or physician statements are required to support an award
of past pecuniary damages. Stokes v. Department of Homeland Security,
EEOC Appeal No. 0120071802 (December 10, 2008).
In denying complainant's claim for reimbursement of his motel expense,
mileage, and eating out at restaurants, the agency noted complainant's
lack of receipts, among other things. On appeal, complainant states he
has receipts, but does not submit any. Complainant never stated how
often he made weekend trips to Corpus Christi, and provided no log or
other documentation thereof. Given this, we deny complainant's claim for
past pecuniary damages for his motel expense, mileage, and eating out.
Accordingly, we need not decide if the agency would otherwise be liable
for these expenses.
Complainant stated that he felt much stress as a result of being denied
the transfer. But he conceded that his stress was also caused by working
in an allegedly hostile work environment for years. Complainant did
not submit statements from family, friends, or co-workers about his
mental state, nor from medical professionals, and stated that he did
not have psychological or psychiatric counseling as a result of the
denial of transfer. Nevertheless, he undoubtedly suffered stress from
the delay more than 11/2 years of being able to live where he wanted,
and traveling the long distance back and forth.
A proper award of nonpecuniary compensatory damages should consistent with
the amount awarded in similar cases. See Ward-Jenkins v. Department of
Interior, EEOC Appeal No. 01961483 (March 4, 1999) (citing Cygnar v. City
of Chicago, 865 F.2d 827, 848 (7th Cir. 1989). We conclude that an award
of $2,000 for pain and suffering related to the stress is consistent with
Commission precedent, in addition to the nonpecuniary damage award of
$2,000 for the gastritis. See Reid v. Department of Justice, EEOC Appeal
No. 0720070003 (January 25, 2008) ($2,000 in nonpecuniary damages for
emotional harm where complainant was involuntarily transferred from Santa
Maria, California to Salt Lake City, Utah and testified the transfer was
very emotional and made her sad, and the record showed it was disruptive);
Borchardt v. Department of the Army, EEOC Appeal No. 01A40966 (November
18, 2005) ($1,500 in nonpecuniary damages where complainant was retaliated
against by her third line supervisor directing her to report to him on
the results complainant's contact with the EEO office and complainant
testified that she suffered stress from the retaliatory actions.
Absence of supporting evidence).
We now turn to costs and attorney fees. Our prior decision in
Mulvaney v. United States Postal Service, EEOC Appeal No. 0120071617
(October 9, 2008) did not notify complainant of the opportunity, after
a determination had been made, of an entitlement to attorney fees or
costs, for the attorney to submit a verified statement of attorney's
fees and costs (fee petition).6 The agency also did not do so during the
remand investigation. For this reason, the lack of a fee petition is not
surprising. Accordingly, complainant will be provided the opportunity,
in accordance with the paragraph entitled "ATTORNEY'S FEES (H0900)"
below to submit a fee petition to the agency for the calculation of
costs and attorney fees. Regardless of whether complainant submits a
fee petitition, the agency shall pay complainant the amount it already
awarded, i.e., $46.56 in costs and $200 in attorney fees. Complainant has
already proven this minimal amount.
The final agency decision is modified.
ORDER
The agency is ordered to take the following remedial actions:
1. To the extent it has not already done so, pay complainant $4,000 in
nonpecuniary damages, i.e., $2,000 related to his gastritis, and $2,000
for stress pain and suffering.
2. To the extent it has not already done so, pay complainant $24 in past
pecuniary damages.
3. To the extent it has not already done so, pay complainant $46.56 in
costs and $200 in attorney fees.7
4. If the Corpus Christi P&DC has a separate facility or plant seniority
list, independent from the craft job seniority list, the agency shall
adjust complainant's facility or plant seniority to December 6, 2005.
The agency shall complete these actions within 60 calendar days after
this decision becomes final.
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 that the
above payments have been made. The agency shall send a copy of the
report, with its supporting documentation, to complainant.
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.8 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 (K1208)
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 (M1208)
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 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 (S0408)
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 (Z1008)
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 9, 2010
__________________
Date
1 The order indicated this should take into account complainant
being placed in off-duty status, and the impact of a March 22, 2006,
settlement agreement on complainant being placed into "her" position.
The supplemental investigation confirmed this language was inadvertent
because it showed complainant was never placed off duty and there was
no such settlement agreement.
2 Complainant also listed other jobs, not relevant here. We also
reviewed eReassign printouts found in the record of Mulvaney v. United
States Postal Service, EEOC Appeal No. 0120064050 (December 5, 2006).
3 Regarding this prior complaint, in Mulvaney v. United States Postal
Service, EEOC Appeal No. 0120064050 (December 5, 2006), the Commission
found that the agency did not discriminate against complainant based
on his race, disability, age or reprisal for prior EEO activity when it
denied the transfer.
4 Complainant left the mail handler craft years before his November 20,
2005 transfer request.
5 This information was contained in a grievance by complainant. The copy
in the record is not signed.
6 A complainant may also request reimbursement for administrative
litigation costs he directly incurred.
7 In accordance with the ATTORNEY FEES paragraph below, complainant is
being provided the opportunity to submit a fee petition to the agency
for costs and attorney fees. He was not previously notified of this
opportunity. For this reason, if complainant can show a reasonable fee
for attorney work on his case, including that done prior to the appeal
and on his remand affidavit is more than $200, he will be entitled to
an additional award. The same reasoning applies to costs.
8 Complainant can also submit an additional request for costs, supported
by documentation.
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0120091359
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120091359