01A31608
06-16-2004
Ray N. Wright v. United States Postal Service 01A31608 06-16-04 .Ray N. Wright, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Ray N. Wright v. United States Postal Service
01A31608
06-16-04
.Ray N. Wright,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A31608
Agency No. 4G-760-0243-97
DECISION
On January 16, 2003, the Equal Employment Opportunity Commission
(Commission) received a timely appeal from Ray N. Wright (hereinafter
referred to as the complainant) from a final decision of the agency
concerning his claim for compensatory damages following the Commission's
finding that he was subjected to disability discrimination in violation
of � 501 of the Rehabilitation Act of 1973, as amended, 29 U.S.C. � 791
et seq. The appeal is accepted by this Commission in accordance with
29 C.F.R. � 1614.405.
The issue on appeal is whether the agency properly awarded complainant
$9,180.98 in compensatory damages.
As noted, the Commission previously issued a decision finding that
complainant was subjected to disability (knee injury) discrimination
when he was changed from a full-time regular City Carrier to a part-time
flexible Clerk in April 1997. Wright v. USPS, EEOC Appeal No. 01983904
(May 2, 2002), request for reconsideration denied, EEOC Request
No. 05A20825 (August 21, 2002). As relief, the agency was ordered to,
among other things, investigate the issue of compensatory damages. At the
conclusion of a supplemental investigation, the agency awarded complainant
$180.98 in pecuniary damages, and $9,000.00 in non-pecuniary damages.
The agency noted that complainant's post traumatic stress disorder (PTSD)
was a pre-existing condition, and that much of the evidence submitted
in support of the claim related to incidents which occurred prior to the
discrimination and were not related thereto. The agency stated that the
change from a full time regular position to a part-time flexible Clerk
involved no loss of pay, and complainant maintained the same schedule,
with the same weekly work-hour guarantee. Further, the agency stated
that complainant failed to show that a majority of the expenses claimed
were related to the act in question. The agency denied complainant's
claim for expenses incurred in processing his workers' compensation
and retirement claims, as well as matters involving Labor Relations and
the union. In addition, the agency denied the claim for reimbursement
for medical expenses, stating that the costs were related to pre-existing
pain and not the discrimination. The agency did reimburse complainant
$148.80 for six visits to his former attorney at .31 per mile, and
$8.04 for postage incurred for mailings to the Manager of EEO Complaint
Processing and the Commission. The agency also reimbursed complainant for
$16.18 for photocopies claimed within 10 days of filing the complaint,
stating that there was no evidence that the remainder of the costs for
copies, as well as the costs for stamps, and other office items were
related to the discrimination. The agency also stated that telephone
calls to complainant's current and former attorney, the Commission,
and the agency's EEO Office, in the amount of $7.96, were reimbursable,
but that there was no causal connection between the discrimination and
calls to the Department of Labor, the Social Security Administration,
the Department of Veterans Affairs, the Office of Personnel Management,
and various other offices. Finally, the agency stated that it would not
reimburse complainant for leave without pay, costs of maintaining his
health insurance after his retirement, or contributions to his Thrift
Savings Plan.
After a careful review of the record, we find the agency's award of
$9,000.00 in non-pecuniary damages was appropriate, but that the agency
erred in awarding only $180.98 in pecuniary damages. To receive an award
of compensatory damages, 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 (July
22, 1994), request for reconsideration denied, EEOC Request No. 05940927
(December 11, 1995); Compensatory and Punitive Damages Available Under
Section 102 of the Civil Rights Act of 1991, EEOC Notice No. N 915.002
at 11-12, 14 (July 14, 1992).
An award of compensatory damages for non-pecuniary losses, including
emotional harm, should reflect the extent to which the respondent directly
or proximately caused the harm, and the extent to which other factors
also caused the harm. The Commission has held that evidence from a
health care provider is not a mandatory prerequisite for recovery
of compensatory damages. Carpenter v. Department of Agriculture,
EEOC Appeal No. 01945652 (July 17, 1995). Courts also have held that
"expert testimony ordinarily is not required to ground money damages
for mental anguish or emotional distress." Sanchez v. Puerto Rico Oil
Co., 37 F.3d 712, 724 (1st Cir. 1994), citing Wulf v. City of Wichita,
883 F.2d 842, 875 (10th Cir. 1989); Busche v. Burkee, 649 F.2d 509, 512
n.12 (7th Cir.), cert. denied, 454 U.S. 897 (1981). A complainant's own
testimony, along with the circumstances of a particular case, can suffice
to sustain his/her burden in this regard. See U.S. v. Balistrieri,
981 F.2d 916, 932 (7th Cir. 1992), cert. denied, 114 S. Ct. 58 (1993)
(housing discrimination). Nonetheless, the absence of supporting evidence
may affect the amount of damages deemed appropriate in specific cases.
Lawrence v. USPS, EEOC Appeal No. 01952288 (April 18, 1996).
The Commission notes that damage awards for emotional harm are difficult
to determine and that there are no definitive rules governing the amount
to be awarded in given cases. A proper award must meet two goals:
that it not be "monstrously excessive" standing alone, and that it
be consistent with awards made in similar cases. See Cygnar v. City of
Chicago, 865 F.2d 827, 848 (7th Cir. 1989). Further, Federal courts have
awarded compensatory damages in a wide range of amounts depending on the
facts of the particular case, and the supporting evidence presented. See,
e.g., Kuntz v. City of New Haven, 3 AD Cases 1590, 1592 (D.C. Conn. 1993),
aff'd. without opinion, 29 F.3d 622 (2d Cir. 1994), cert. denied sub nom.,
City of New Haven v. Kuntz, 155 S.Ct. 667 (1994) (award of $500.00 for
emotional distress based on testimony that plaintiff was "disappointed",
"cranky" with family and friends, "embarrassed" at not having been
promoted, and had many sleepless nights); Jackson v. Pool Mortgage
Co., 868 F.2d 1178 (10th Cir. 1989) ($24,421.00 award for depression,
muscle spasms, stomach pain, and hair loss following termination).
In addition, the Commission has awarded compensatory damages based on
the extent of the damages proved. See Wimberly v. USPS, EEOC Appeal
No. 01A23646 (May 29, 2003), request for reconsideration denied, EEOC
Request No. 05A30980 (September 22, 2003) ($8,500 awarded for stress,
embarrassment, humiliation, and financial difficulties following the
denial of reasonable accommodation where there was evidence of other
contributing factors); Williams v. USPS, EEOC Appeal No. 01985775 (August
30, 2001) ($8,000 awarded based upon testimony that complainant felt bad
about himself when he was denied accommodation, and lost self-esteem,
experienced mental anguish, injury to his character, and marital
difficulty, but that other factors contributed to his condition).
Based upon the foregoing, and considering the nature and severity of
the harm to complainant, and the actual duration of the harm, we find
that the agency's award of $9,000.00 in non-pecuniary compensatory
damages is appropriate. Complainant stated that he had difficulty
staying focused and sleeping, felt worthless, was no longer excited
about life, and lost interest in his friends. Complainant, however,
stated that his problems began in October 1995 when he returned to work
following knee surgery. In addition, the statements from complainant's
family and co-workers do not specifically relate complainant's symptoms
of withdrawal, irritability, anger, and lack of motivation to the April
1997 discrimination.
Complainant received treatment from a psychiatrist (Dr. M) beginning
on April 24, 1997. Dr. M diagnosed complainant with PTSD, which
he related to interactions with his supervisor. Dr. M did not,
however, conclude that complainant's condition was solely the result
of his change in status. Dr. M stated that complainant had difficulty
sleeping and concentrating, had a diminished interest in activities he
once pursued, and experienced significant distress. Dr. M continued to
advise complainant to remain off of work due to his PTSD, finding him
totally disabled from performing either full-time or part-time work.
The record, however, also includes a statement dated March 23, 1997,
prior to the discrimination, from a licensed counselor who treated
complainant. The Counselor noted that complainant had experienced
chronic pain for approximately 29 years due to wounds he received in
Vietnam and a 1968 automobile accident, and exhibited possible symptoms
of PTSD. The Counselor further stated that complainant had experienced
problems at work since October 1995, and that his overall health had
steadily deteriorated such that he experienced sleep disturbances,
diminished appetite and motivation, fatigue, anger control issues,
tension and stress. The Counselor also noted that conflicts with the
Postmaster in relation to complainant's role in the union contributed
to the tension and stress.
Based upon the foregoing, we find that the record shows that complainant
experienced symptoms of PTSD prior to the time of the discrimination.
Nevertheless, the record shows that the change in status aggravated
complainant's condition, such that complainant experienced a loss
of enjoyment of life, inability to focus, difficulty sleeping, and
feelings of worthlessness. Thus, we find that the award of $9,000.00
in non-pecuniary damages was proper.
With regard to complainant's claim for pecuniary damages, the
Commission agrees with the agency that complainant is not entitled
to reimbursement for costs associated with processing his workers'
compensation or disability retirement claims, costs associated with
maintaining his health insurance following his retirement, loss of
contributions to his Thrift Savings Plan, or medical expenses incurred
prior to the discrimination. There is no evidence that those expenses
were related to the discrimination, and complainant is not entitled to
damages related to issues other than those which the Commission found to
have been discriminatory. The Commission finds the agency's award of
$8.04 for postage relating to mailings to the agency's EEO Office and
the Commission, as well as $16.18 for copies made around the time of
the filing of the formal complaint was reasonable. Complainant failed
to provide documentation to support his claim that additional costs
for postage, copies, and various office supplies were related to the
discriminatory incident.
Complainant submitted statements showing that he incurred $3,156.00
in expenses for treatment by Dr. M from April 24, 1997, through
September 20, 2002, and $1,635.00 for sessions with the Counselor.
While the agency denied reimbursement for these expenses as relating to
factors arising prior to the discrimination, the record shows that the
discrimination aggravated complainant's condition such that he should
be compensated for a portion of those costs. In addition, complainant
submitted pharmacy statements listing costs of medication he received
from February 1997 through August 2002. The record, however, shows
that only two medications, Clonazepam and Ambien costing $178.16, were
prescribed by Dr. M, and are plausibly related to the discrimination.
As stated, the record shows that only a portion of the total medical
expenses were related to the underlying discrimination. We find that
one-fifth of the costs, or $993.83, are compensable.
The agency found that complainant was entitled to $148.80 for six visits
to his prior attorney's office, reimbursable at .31 per mile, and $7.96
for telephone calls to his former and current attorneys, the Commission
and the agency's EEO Office. Complainant also stated that he visited
Dr. M and the Counselor on 34 and 13 occasions, respectively, and that
each trip totaled 120 miles. In addition, complainant's telephone records
show that he incurred $5.57 in costs for telephone calls to Dr. M and the
Counselor. Complainant would be entitled to one-fifth of those costs,
or $353.38. Complainant failed to show that any of the other milage or
telephone charges were related to the discriminatory incident. Thus,
complainant is entitled to an award of $1,528.19 in pecuniary damages.
It is noted that, on appeal, complainant stated that he should be
compensated for 352 hours of leave without pay. Reimbursement for leave
or leave without pay would be considered an equitable remedy and not
part of an award of compensatory damages. In the Commission's previous
decision, the agency was ordered to compensate complainant for any
loss of benefits. Complainant, however, failed to submit any evidence,
such as leave request forms and documentation showing that such leave
was related to the discrimination, to substantiate his claim regarding
leave without pay.
CONCLUSION
Based upon a review of the record, and for the foregoing reasons it is
the decision of the Commission to MODIFY the agency's finding regard
compensatory damages.
ORDER
The agency is ORDERED to take the following remedial action:
1. The agency shall pay complainant $10,528.19 in compensatory damages,
less any amounts already paid. Such payment shall be made within thirty
(30) days of the date 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 evidence that 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
____06-16-04______________________________
Date