Larry B. Elias, Complainant,v.John E. Potter, Postmaster General, United States Postal Service, (Capital-Metro Area), Agency.

Equal Employment Opportunity CommissionFeb 27, 2004
01A31667 (E.E.O.C. Feb. 27, 2004)

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.