01A31667
02-27-2004
Larry B. Elias, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, (Capital-Metro Area), Agency.
Larry B. Elias v. United States Postal Service
01A31667
February 27, 2004
.
Larry B. Elias,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
(Capital-Metro Area),
Agency.
Appeal No. 01A31667
Agency No. 1K-204-0013-01
DECISION
Complainant timely initiated an appeal from a final agency decision
concerning his complaint of unlawful 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. and 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.
In its final decision, the agency concluded that it violated the
Rehabilitation Act when it failed to establish that it would have been an
undue hardship to provide complainant with reasonable accommodation.<1>
The agency further concluded that complainant failed to establish that
its actions were motivated by discriminatory animus towards his sex
or by retaliatory animus for his prior protected activity. The agency
determined that a non-pecuniary damage award of $2,500.00 was appropriate
to compensate him for his pain and suffering. On appeal, complainant
contends that he was treated less favorably because of his sex and prior
protected activity and that an award of $2.2 million in punitive damages
should be considered.
The Commission will limit its review to that which complainant contests
on appeal: namely whether a violation of Title VII occurred and whether
the amount of damages awarded by the agency was sufficient to compensate
complainant for his non-pecuniary losses. Upon consideration, we find
insufficient evidence in the record to support a finding of either sex
based or retaliatory motivation on the part of the agency. Further,
based upon complainant's representations on appeal, we discern no basis
to disturb the agency's award of $2,500.00 in non-pecuniary damages.
Complainant presents no evidence on appeal linking non-pecuniary losses
and the denial of accommodation. However, as did the agency, we conclude
that complainant suffered some increased pain from the extra walking he
was required to do for several months before he received a designated
parking spot closer to his work site. This award is not"monstrously
excessive" standing alone, is not the product of passion or prejudice, and
is consistent with the amount awarded in a similar case. See Ward-Jenkins
v. Department of the Interior, EEOC Appeal No. 01961483 (March 4, 1999)
(citing Cygnar v. City of Chicago, 865 F.2d 827, 848 (7th Cir. 1989));
see also Pastva v. United States Postal Service, EEOC Appeal No. 01A21610
(March 6, 2003) ($2,500.00 in non-pecuniary damages awarded to complainant
who suffered some emotional distress when she was denied a designated
parking space for several months).
Accordingly, we affirm the agency's final decision and direct the agency
to take action consistent with the ORDER below.
ORDER
1. Within sixty (60) days of this decision becoming final and to the
extent it has not already done so, the agency shall pay complainant
$2,500.00 in non-pecuniary damages.
2. The agency shall conduct training for the responsible management
officials at the Washington Bulk Mail Center regarding their obligations
under the Rehabilitation Act.
3. The agency shall consider taking appropriate disciplinary action
against the responsible management officials. The Commission does not
consider training to be disciplinary action. The agency shall report
its decision to the compliance officer. If the agency decides to take
disciplinary action, it shall identify the action taken. If the agency
decides not to take disciplinary action, it shall set forth the reason(s)
for its decision not to impose discipline. If any of the responsible
management officials have left the agency's employ, the agency shall
furnish documentation of their departure date(s).
POSTING ORDER (G0900)
The agency is ordered to post at the Washington Bulk Mail Center
in Capitol Heights, Maryland facility copies of the attached notice.
Copies of the notice, after being signed by the agency's duly authorized
representative, shall be posted by the agency within thirty (30) calendar
days of the date this decision becomes final, and shall remain posted
for sixty (60) consecutive days, in conspicuous places, including all
places where notices to employees are customarily posted. The agency
shall take reasonable steps to ensure that said notices are not altered,
defaced, or covered by any other material. The original signed notice
is to be submitted to the Compliance Officer at the address cited in
the paragraph entitled "Implementation of the Commission's Decision,"
within ten (10) calendar days of the expiration of the posting period.
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.
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
February 27, 2004
__________________
Date
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
An Agency of the United States Government
This Notice is posted pursuant to an order by the United States Equal
Employment Opportunity Commission dated ___________ which found that a
violation of Section 501 of the Rehabilitation Act of 1973 (Rehabilitation
Act), as amended, 29 U.S.C. � 791 et seq. has occurred at the Washington
Bulk Mail Center in Capitol Heights, Maryland.
Federal law requires that there be no discrimination against any employee
or applicant for employment because of the person's RACE, COLOR, RELIGION,
SEX, NATIONAL ORIGIN, AGE, or DISABILITY with respect to hiring, firing,
promotion, compensation, or other terms, conditions or privileges of
employment.
This facility was found to have violated the Rehabilitation Act when it
denied complainant reasonable accommodation. The facility was ordered to
award the employee proven compensatory damages and proven attorney fees.
This facility was also ordered to provide relevant agency officials with
training regarding their obligations under the Rehabilitation Act .
This facility will ensure that officials responsible for personnel
decisions and terms and conditions of employment will abide by the
requirements of all federal equal employment opportunity laws and will
not retaliate against employees who file EEO complaints.
This facility will comply with federal law and will not in any manner
restrain, interfere, coerce, or retaliate against any individual who
exercises his or her right to oppose practices made unlawful by, or
who participates in proceedings pursuant to, federal equal employment
opportunity law.
Date Posted: _____________________
Posting Expires: _________________
29 C.F.R. Part 1614
1 Complainant requested to be able to park in a designated space closer
to his work site or be transported from the main parking area due to
his difficulty walking even short distances.