0120081060
10-29-2010
Steven J. Wolfe, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, (Western Area), Agency.
Steven J. Wolfe,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
(Western Area),
Agency.
Appeal No. 0120081060
Hearing No. 443-06-00048X
Agency No. 1E-501-0008-03
DECISION
On December 22, 2007, Complainant filed an appeal from the Agency's November 19, 2007, notice of final action concerning his equal employment opportunity (EEO) complaint alleging employment discrimination in violation of Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq. The Commission deems the appeal timely and accepts it pursuant to 29 C.F.R. � 1614.405(a). For the following reasons, the Commission MODIFIES the Agency's final order.
BACKGROUND
The record reveals that Complainant began working at the Agency on March 18, 1984, as a Mail Handler at the Des Moines Processing and Distribution Center (P&DC). Hearing Transcript at 18. Complainant resigned after five years with the Agency. Id. at 19. He was later reinstated on June 16, 1990, with a bid on Tour 3. Id. In January 1992, he was diagnosed with severe degenerative osteoarthritis in both of his shoulders. Complainant was placed on restrictions and was assigned work within those restrictions on Tour 3. Complainant filed a worker's compensation claim which was accepted by OWCP. Id. at 19-20.
Complainant wanted to change to Tour 2 for personal convenience. On March 11, 2002, Complainant began working a one-month change of schedule to Tour 2. ROI, Affidavit B, at 4. Complainant noticed less senior employees working on Tour 2 and on March 13, 2002, he asked to have his permanent limited duty assignment changed from Tour 3 to Tour 2. Id. On May 30, 2002, Complainant was assigned to work Tour 2 on the Flat Sorter Machine to begin on June 1, 2002, for an indefinite period of time. Hearing Transcript at 51; Hearing Transcript, Complainant's Exhibit C-2.
On December 16, 2002, the Plant Manager notified Complainant that effective January 4, 2003, he would be returned to Tour 3, his original permanent job offer due to staffing needs. ROI, Affidavit B, at 4. On January 4, 2003, Complainant returned to Tour 3. Complainant requested to change to Tour 2 on several occasions. On July 17, 2004, Complainant was finally awarded a bid on Tour 2.
Complainant filed an EEO complaint dated April 4, 2003, alleging that the Agency discriminated against him on the basis of disability (lifting and repetitive motion limitations) when:
1. Complainant was removed from his Tour 2 assignment in December 2002; and
2. Beginning on December 16, 2002, Complainant's requests for Tour 2 assignments were denied.1
Complainant's case was accepted for investigation and consolidated for joint processing with Agency No. 1E-501-0007-03 which was filed by Complainant 2. At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation and notice of his right to request a hearing before an EEOC Administrative Judge (AJ). Complainant requested a hearing and the AJ held a hearing on May 15, 2007. The AJ issued a decision on September 30, 2007, finding Complainant was subjected to discrimination when: (1) he was removed from his Tour 2 assignment in December 2002; and (2) beginning on December 16, 2002, Complainant's requests for Tour 2 assignments were denied.
The AJ's Order required the Agency to:
1. Determine and pay Complainant back pay, if any, (with interest, if applicable) and other benefits due Complainant pursuant to 29 C.F.R. � 1614.502, no later than sixty calendar days after the date this decision becomes final. The Agency's determination shall be based on the fact that, absent discrimination, Complainant would have remained on Tour 2 from December 2002, through the date he finally received his Tour 2 assignment on July 17, 2004.2
2. Pay Complainant $4,000 in non-pecuniary damages.
Additionally, the AJ addressed Complainant's claim for pecuniary and non-pecuniary damages. With regard to pecuniary damages, the AJ noted that Complainant alleged he relied to his detriment on the Agency's initial grant of Tour 2 duties and purchased a home for his family. The AJ disallowed this claim finding his losses were not attributable to the Agency's conduct, and stating there is no authority for this type of pecuniary damage award.
The Agency issued a notice of final action on November 19, 2007. The Agency fully implemented the AJ's finding of discrimination and the relief ordered by the AJ.
The record reveals that on December 17, 2007, the Agency sent Complainant check number 0102687916 in the amount of $4,000 as payment for non-pecuniary damages. The record reveals Complainant received this check on December 20, 2007.
Thereafter, on December 22, 2007, Complainant filed the present appeal. On appeal, Complainant challenged the decision to dismiss his claim for pecuniary damages. Complainant also appealed the amount of non-pecuniary damages awarded.
On December 28, 2007, the Agency issued a letter to Complainant informing him that it determined that because he suffered no loss of earnings as a result of the Agency's action in this case, no back pay is due to him.
The Agency noted that up until February 21, 2004, when Complainant assumed his assignment on Tour 2, his regular assignment was on Tour 3. The Agency stated that employees assigned to Tour 3 receive a 10% night differential for the time worked during the hours of 6:00 p.m. to 6:00 a.m. The Agency noted that employees assigned to Tour 2 are not entitled to receive night differential because Tour 2 work hours are not within the 6:00 p.m. to 6:00 a.m. time period. The Agency noted that during the time Complainant worked on Tour 3, his earnings were higher than the earnings he would have made on Tour 2 had the Agency granted his request for assignment to Tour 2. The Agency determined because Complainant's earnings were higher on Tour 3 than they would have been on Tour 2, he suffered no loss of earnings.
The Agency also found Complainant was not entitled to out of schedule pay. The Agency noted Complainant was regularly assigned to Tour 3 and was granted a temporary schedule change to Tour 2 for personal convenience, but was later moved back to his regular assignment on Tour 3 in January 2003. The Agency noted thereafter Complainant requested to be returned to Tour 2, and these requests were denied until February 21, 2004. The Agency stated it did not require Complainant to work outside of his regularly assigned schedule and found out of schedule pay was not warranted since it would put him in a better position than he was otherwise entitled to and is not part of "make whole" relief in this case.
In a January 13, 2007 document entitled "APPEAL TO THE EEOC APPELATE COMMISSION Alleging Breach of Settlement Agreement for 'Make-Whole' Relief," Complainant contests the Agency's December 28, 2007 decision that he is not entitled to receive out-of-schedule pay. Specifically, Complainant states that he was a full-time bargaining unit employee working an assignment on Tour 2 for nine months, before management required him to work outside of his regularly scheduled work day and forced him to work Tour 3. Thus, Complainant requests out-of-schedule pay for the period between January 4, 2003, through July 2004, for working outside his schedule.
Additionally, Complainant submitted a statement dated January 22, 2008, concerning his request for damages. Complainant requested $40,000 in non-pecuniary damages for the harm he suffered. He noted that during the hearing, page 80 of the hearing transcript, he mentioned that he met with a counselor to discuss his emotional problems. He states he met with an EAP counselor five times and requested that she submit a letter describing the nature of his problems; however, she did not reply. With regard to harm, Complainant stated that he chose to move from his mortgage free farm and purchase a house in town so his wife and stepson would feel safe with neighbors and services nearby while Complainant was forced to work nights on Tour 3. He states that the assignment to Tour 3 never allowed him to spend any waking time with his family Monday through Friday, leaving them alone, scared and frustrated at night on their remote farm until he returned home after working Tour 3 at 12:30 a.m. He states he felt "humiliated and anxious" every day as he waited for mediation on his case. Complainant states he was "devastated" by the Agency's actions and notes he it still makes him "hoppin' mad after five years." After the Agency returned him to Tour 3 he states he felt tom apart, hostile, sick, and extreme, scary rage. He states that he felt anxious, claustrophobic, pinned down against his will. Complainant notes that he and his wife made an offer on a house in Indianola on March 8, 2003, just 16 days after the Plant Manager 1's letter following mediation. Complainant cites the statements from his wife, stepson, father, and friends that he submitted as evidence during the hearing as a further validation of the harm he suffered.
Additionally, Complainant states that he was subjected to unexpected time restrictions at the hearing which he claims put him at a disadvantage in presenting his claim for damages. Complainant notes the hearing started two hours late. Complainant explains as the first witness to testify he testified about medical evidence in support of his case and explained the decision to move from the farm while he was on Tour 3. Complainant points out that on page 50 of the hearing transcript, the AJ informed him that he provided enough background and urged him to move to the relative time period, which the AJ stated was 45 days from the date that Complainant contacted the EEO Counselor. Complainant states after this instruction from the AJ he felt frustrated and his anxiety increased. Complainant acknowledges that he was able to convince the AJ to allow him to testify concerning the March 13, 2002 "Shipman letter" in which he requested a permanent assignment to Tour 2. Complainant states that starting on page 58 of the hearing transcript, he discussed the pain and anguish resulting from the Agency's actions. Complainant notes that at the bottom of page 59 of the hearing transcript, the AJ informed him that he had only 25 more minutes to testify which he states made him feel anxious and disillusioned. Complainant notes that on page 70 of the hearing transcript he was talking about his mental anguish and losses and was warned by the AJ that he had ten minutes left. Complainant acknowledges he had the opportunity to present requests for pecuniary and non-pecuniary damages. Moreover, he notes that during cross-examination he again attempted to have his emotional and financial harm understood. Finally, Complainant notes that he had to pursue the case on his own since he could not afford attorney's fees.
In response to Complainant's appeal, the Agency argues the AJ properly determined Complainant was not entitled to pecuniary damages. The Agency notes that Complainant requested pecuniary damages associated with the sale of his mobile home and move to Indianola, Iowa after his return to Tour 3 in January, 2003. The Agency states Complainant sold his home in Polk City in early 1999, purchased a mobile home, and moved it to his farmland in Woodburn, Iowa by his own personal choice. The Agency states he then moved his family to the farm in Woodburn, Iowa by his own personal choice while he was working on Tour 3. The Agency claims that when he decided to sell the mobile home and move to Indianola, Iowa it was by his own personal choice and not mandated by the Agency. The Agency argues that any loss or expense incurred because of the move is not attributable to the Agency and there is no authority that allows for this type of pecuniary damage award.
The Agency also argues that the award of $4,000 in non-pecuniary damages was appropriate. The Agency notes that in Complainant's EEO Investigative Affidavit for Compensatory Damages he states he did not experience personal medical problems, did not obtain psychological or psychiatric counseling, and did not have to take medication because of the alleged discrimination. Additionally, the Agency claims Complainant presented no evidence that any claimed emotional harm he may have suffered was caused by the Agency's conduct. The Agency states that $4,000 in non-pecuniary damages was appropriate based on Complainant's testimony regarding the mental stress and anxiety he suffered, as well as the strain caused on his family relationships by working his Tour 2 assignment.
Further, the Agency argues Complainant is not entitled to back pay because his earnings were higher on Tour 3 than they would have been on Tour 2. The Agency also states that Complainant is not entitled to out-of-schedule pay because such an award would place him in a better position than he would have occupied absent discrimination. The Agency states if did not require Complainant to work outside his regularly assigned schedule. It states that from March 11, 2002 to January 4, 2003 when Complainant worked on Tour 2, he was not entitled to out-of-schedule pay because this was a temporary schedule change for personal convenience. The Agency notes that from January 4, 2003 until February 21, 2004 when Complainant returned to Tour 3, he was not entitled to out-of-schedule pay because he was working his regularly assigned schedule.
ANALYSIS AND FINDINGS
At the outset, we note that the Agency does not challenge the AJ's finding of disability discrimination and that finding is AFFIRMED herein.
Next, we address Complainant's objections to the manner in which the AJ conducted the hearing. Specifically, Complainant contends that the AJ subjected him to time restrictions in presenting his testimony at the hearing. We note that EEOC regulations and Commission precedent provide AJ's with broad discretion in the conduct of a hearing. See 29 C.F.R. � 1614.109; see also EEOC Management Directive 110 (MD-110), Chapter 7, at 9-10 (1999). We note that Complainant acknowledges he had the opportunity to present testimony regarding pecuniary and non-pecuniary damages during his testimony and on cross-examination. The Commission has reviewed the hearing transcript as well as other documentary evidence in the record and is unable to find evidence of bias, or other reversible error, resulting from the manner in which the AJ managed and adjudicated this case.
We conclude that Complainant's request for pecuniary damages (for sale of mobile home, purchase of new home, and related expenses) was properly denied, in that no nexus between the alleged harm and the unlawful action has been established.
Based on the record, the Commission finds that the award of $4,000 in non-pecuniary damages is insufficient to remedy the harm that the Agency's actions caused Complainant. However, we are also unpersuaded by Complainant's argument that a $40,000 non-pecuniary, compensatory damages award is reasonable. In the present case, Complainant testified that the Agency's actions caused him to feel anger, frustration, and defeat. Hearing Transcript at 79-80. At the hearing, Complainant stated that he went to see a counselor; however, he provides not details regarding this statement. Id. at 80. Complainant's wife provided a statement noting that for the nine months Complainant was on day hours, their life was normal and explaining that when he was moved to night hours their "life was turned upside down." Complainant's Exhibit 11, page 2. She stated that Complainant was very angry and notes the difficulty the family experienced without having him home at night. Id. In a statement, Complainant's stepson noted that after Complainant was removed from the day shift, he became grouchy and his work on the night shift resulted in a loss of all family activities. Id. at 3. Person X, a Mailhandler on Tour 2, stated that Complainant was an outgoing and balanced person; however, in the beginning of his complaint he "visibly demonstrated both withdrawal and depression." Id. at 1. We find that $13,000 is an appropriate amount as Complainant presented sufficient evidence to establish that he mental stress, humiliation, and strain on his family relationships. See Dennis v. U.S. Postal Service, EEOC Appeal No. 0720060071 (May 30, 2008) ($13,000 in non-pecuniary damages awarded where discriminatory schedule changes caused Complainant to experience irritability, marital difficulties, and excessive drinking). Furthermore, we shall modify the relief to include EEO training and consideration of discipline of responsible management officials.
Complainant claims that he is entitled to out-of-schedule pay as a result of the Agency's discrimination in removing him from his Tour 2 assignment in December 2002, and then denying his requests for Tour 2 assignments. Out-of-schedule pay is a form of premium pay due to employees who are required to work outside of their regularly assigned schedule. Sansosti v. U.S. Postal Service, EEOC Petition No. 04990004 (June 17, 1999). In the present case, Complainant was working an assignment on Tour 2, for nine months prior to receiving the December 16, 2002 letter informing him that he would be returning to Tour 3 effective January 4, 2003. AJ's decision at 8; Hearing Transcript at 182. The AJ's decision found the Agency liable for discrimination when it removed Complainant from his Tour 2 assignment on December 16, 2002. The Agency acknowledges that the Tour 2 work hours are not within the 6:00 p.m. to 6:00 a.m. time period of the Tour 3 work hours. Complainant is alleging that he was made to work Tour 3 night hours as opposed to Tour 2 day hours beginning January 4, 2003, as a result of the unlawful discrimination. We find Complainant is entitled to out-of schedule pay since the Agency's actions resulted in a change to Complainant's reporting time. See Espinosa v. U.S. Postal Service, EEOC Request No. 05960098 (April 3, 1998) (finding discrimination and awarding out-of-schedule pay where agency re-posted complainant's job and thereby changed his principle assignment area, pay location, reporting time, and scheduled days off); Arnold v. U.S. Postal Service, EEOC Appeal No. 07A20087 (June 25, 2003) (finding discrimination and awarding out-of-schedule pay where agency posted the complainant's position for bid resulting in a change in his starting time and duty location). Thus, we will remand this issue of out-of-schedule pay to the Agency for a supplemental investigation. If the sum of out-of-schedule pay that is due Complainant is less than any 10% night differential pay Complainant may have been receiving as a result of being on Tour 3, then the Agency will not owe Complainant any more payments, provided documentation is presented to support this determination.
CONCLUSION
Accordingly, the Agency's final decision regarding the remedies is MODIFIED and the matter is REMANDED to the Agency for further processing in accordance with this decision and the AJ's Order, as modified herein.
ORDER
To the extent it has not already done so, the Agency shall:
1. Within 60 days of the date this decision becomes final, determine and pay Complainant back pay, if any, (with interest, if applicable) and other benefits due Complainant pursuant to 29 C.F.R. � 1614.502. The Agency's determination shall be based on the fact that, absent discrimination, Complainant would have remained on Tour 2 from December 2002, through the date he finally received his Tour 2 assignment on February 21, 2004.
2. Within 60 days of the date this decision becomes final, determine the appropriate amount of out-of-schedule pay due Complainant.
3. Within 60 days of the date this decision becomes final, pay Complainant $13,000 in non-pecuniary, compensatory damages.
4. Within 180 days of the date this decision becomes final, provide EEO training, with an emphasis on the Rehabilitation Act, for all responsible management officials.
5. Within 60 days of the date this decision becomes final, 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 on discipline 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 employment, then the Agency shall furnish documentation of their departure date(s).
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 of the Agency's calculation of back pay, out-of-schedule pay, and other benefits due Complainant, including evidence that the corrective action has been implemented.
POSTING ORDER (G0610)
The Agency is ordered to post at its Des Moines, Iowa 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.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0610)
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 (M0610)
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), at 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 (R0610)
This is a decision requiring the Agency to continue its administrative processing of your complaint. However, if you wish to file a civil action, you have the right to file such action in an appropriate United States District Court within ninety (90) calendar days from the date that you receive this decision. In the alternative, you may file a civil action after one hundred and eighty (180) calendar days of the date you filed your complaint with the Agency, or filed your appeal with the Commission. 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. Filing a civil action will terminate the administrative processing of your complaint.
RIGHT TO REQUEST COUNSEL (Z0610)
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
10/29/10
__________________
Date
1 Complainant originally included sex as a basis for his complaint; however, he subsequently withdrew his claim of sex discrimination.
2 The record shows that Complainant began working the Tour 2 assignment effective February 21, 2004. Hearing Exhibit 2 at 12. While it appears that Complainant was not awarded the Tour 2 bid until July 17, 2004, he acknowledges working in the Tour 2 assignment beginning February 21, 2004. Hearing Transcript at p. 97. Therefore, we shall alter the order of relief to reflect that the date Complainant received the Tour 2 assignment was February 21, 2004.
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0120081060
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120081060