Michael R. Boone, Complainant,v.John E. Potter, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionApr 28, 2004
01A31199 (E.E.O.C. Apr. 28, 2004)

01A31199

04-28-2004

Michael R. Boone, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.


Michael R. Boone v. United States Postal Service

01A31199

April 28, 2004

.

Michael R. Boone,

Complainant,

v.

John E. Potter,

Postmaster General,

United States Postal Service,

Agency.

Appeal No. 01A31199

Agency No. 4E-995-1021-95

Hearing No. 260-A1-9181X

DECISION

Complainant initiated an appeal from the agency's final action that

awarded him compensatory damages in the amount of $2,000. This appeal

pertains to the amount of compensatory damages awarded. The appeal is

accepted pursuant to 29 C.F.R. � 1614.405. For the following reasons,

the Commission affirms the agency's final action.

As background, the record reveals that the complainant was an applicant

for a custodial laborer position at the agency's Fairbanks, Alaska

facility. The agency initially selected the complainant but withdrew the

job offer to him, following his medical examination. The complainant filed

an equal employment opportunity (EEO) complaint of unlawful employment

discrimination alleging race, age and disability discrimination.<1>

The Commission ruled in favor of the complainant on the disability

claim in Michael R. Boone v. United States Postal Service, EEOC Appeal

No. 01971754 (March 22, 1999).<2> The Commission remanded the case to

the EEOC's Milwaukee District Office for a determination on compensatory

damages and attorney's fees. The Commission AJ determined that an award of

$2,000 was appropriate. The agency issued a check for the $2,000 award,

without issuing a FAD and also paid attorney's fees.

In this appeal, the complainant argues that the decision is based on an

erroneous factual finding as to the duration of the injury and that the

amount is insufficient because it fails to recognize that the complainant

was frustrated and depressed for several years. The complainant does

not identify a specific amount, but the cases cited pertain to awards

of $25,000 in compensatory damages. In response, the agency argues that

it has complied with the remedial order and that the AJ's decision on

compensatory damages correctly summarized the facts and reached the

appropriate conclusions of law.

We find that the record supports the agency award of $2,000.00. The

hearing evidence on damages consisted of testimony from the complainant,

his wife and his daughter. There was no medical testimony. The testimony

showed that the complainant was angry, frustrated, irritable, withdrawn

and had difficulty sleeping. The complainant did not seek medical help.

The wife's testimony showed that he endured the worse part of the distress

during one summer. The AJ found that the complainant was negatively

affected emotionally for a period of about three to four months with

diminishing depression for a period of about two years. The AJ found

that his emotional condition was back to normal by four months after

the employment denial.

We find that the Commission has awarded compensatory damages in similar

cases involving non-selections. See, e.g., Parnofiello v. Department

of Justice, EEOC Appeal No. 01A04204 (March 30, 2001) ($2,000.00

in non-pecuniary damages based on complainant's statements of the

interference with family relations, anxiety); Harris v. Department of

Agriculture, EEOC Appeal No. 019766746(December 11, 1998)($2,000.00 in

non-pecuniary damages based on complainant's testimony in non-promotion

case regarding his stress, low self-esteem and depression). Moreover, this

is not a denial of promotion where the employee experiences humiliation

and embarrassment or sex harassment at the worksite. The only persons

who knew of the withdrawal of the job offer were the complainant's family.

After a careful review of the record, the Commission finds that the

AJ's findings of fact are -supported by substantial evidence in the

record and that the AJ's decision properly summarized the relevant

facts and referenced the appropriate regulations, policies, and laws.

We discern no basis to disturb the AJ's decision, which the agency

adopted. Therefore, after a careful review of the record, including

complainant's contentions on appeal, the agency's response, and arguments

and evidence not specifically addressed in this decision, we affirm the

agency's final decision.

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 28, 2004

__________________

Date

1 Complainant alleged discrimination based on disability (40% compensable

veteran and disc disease).

2 The agency filed a motion for reconsideration , which was denied. The

decision in EEOC Appeal No. 01971754 remains the Commission's final

decision on the merits.