01A15414
07-11-2002
Arthur S. Cook, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Arthur S. Cook v. United States Postal Service
01A15414
July 11, 2002
.
Arthur S. Cook,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A15414
Agency No. 1E-837-1011-95
DECISION
Complainant timely initiated an appeal from a final agency decision
(FAD2) concerning his claim for compensatory damages, which stems
from his original complaint of unlawful employment discrimination in
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 the underlying complaint, complainant alleged he was discriminated
against on the bases of disability (arthritic knee and back injury) and
reprisal (prior EEO activity), when he was not hired for the permanent
position of Mail Processor in June 1995. Complainant filed his formal
complaint on August 10, 1995. Following an investigation, he requested
a FAD, which the agency issued, finding no discrimination as to either
basis. Complainant appealed to the Commission and on May 9, 1996,
the Commission reversed the agency's finding of no discrimination based
on disability, and affirmed the agency's finding of no retaliation.
The Commission ordered the agency to take remedial action, including
issuing a decision, after investigation, pertaining to complainant's
entitlement to compensatory damages.
Complainant filed a petition for enforcement stating that the agency
had not complied with portions of the Order. On April 30, 1999, the
Commission granted the petition and found that the agency had not complied
with portions of the Order. The Commission ordered the agency to: (1)
place petitioner in the position of Mail Processor or a similar position;
(2) determine the appropriate amount of back pay, with interest, and
other benefits due petitioner; (3) take all steps necessary to determine
whether petitioner requires reasonable accommodation; (4) issue a FAD
on compensatory damages; (5) provide comprehensive EEO training; and
(6) submit a report of compliance.
In FAD2, in response to complainant's claim for $43,782.03 for medical
bills, the agency concluded that complainant did not seek compensatory
damages for himself. The agency concluded that complainant sought to
recover monies paid by his daughter's trust. The agency noted that
to support his claim, complainant submitted an extensive packet of
information detailing the medical expenses incurred by his daughter
and paid by the trust. The agency concluded that complainant was not
entitled to compensatory damages because he did not seek compensatory
damages for himself and that the �collateral source rule� did not apply
to complainant's claim.
On appeal, complainant contends that the agency did not comply with the
Commission order. Complainant contends that the claim for compensation
is in the process of being settled, but not through any effort by
the agency. The federal employee Blue Cross program, his health
insurance, has made payment to the medical providers and those providers
are in the process of repaying complainant's daughter's guardianship.
Complainant further contends that these actions do not relieve the agency
of its responsibility to remedy its discrimination action. Complainant
contends that the agency must comply with the Commission order. Also,
complainant contends that the agency's allegation that complainant's
daughter's guardianship is a third party is invalid.
Complainant further contends that the agency calculations of back pay and
overtime are not accurate. Specifically, complainant contends that he
is entitled to three weeks of pay, plus interest. Complainant contends
that the agency claims that complainant was not paid for the second
half of pay period 12 and none of pay period 13, because he was unable
to work due to a back injury during those periods. Complainant alleged
that this is inaccurate. Complainant contends that the question here
must be determined by focusing on what options would have been available
if the original act of discrimination had never occurred. Complainant
also contends that he documented 1,500 hours overtime, equaling more
than $40,000 in wages. Complainant contends that the total amount in
dispute exceeds $100,000, plus interest. Complainant finally contends
that this is a benefit to which he is entitled, but which the agency
has deliberately denied.
ANALYSIS AND FINDINGS
Complainant has appealed the agency's decision that complainant is not
entitled to any damages. Specifically, the agency denied complainant
compensatory damages of $43,782.03 in medical expenses, and, in
this decision, we consider his request for monetary and compensatory
damages. Complainant seeks monetary damages for back pay, including back
pay from pay period 12 and 13, 1999; and overtime from June 1995 until
August 9, 1999.
I. EQUITABLE MONETARY RELIEF
Monetary relief, such as back pay and interest on back pay, is equitable
relief and consists of monetary damages for loss of earnings, including
all fringe benefits. See Section 706(g), 42 U.S.C. 2000e-(5)(g); 42
U.S.C. 1981A(b). Such relief is not compensatory damages, and complaining
parties may recover equitable relief without limitation. Enforcement
Guidance: Compensatory and Punitive Damages Available under 102 of the
Civil Rights Act of 1991, No. N 915-002 (July 14, 1992) (Guidance) at 2.
A. Back Pay
"Generally, a Title VII plaintiff can recover back pay only for the
period the plaintiff is 'available and willing to accept substantially
equivalent employment' elsewhere; courts exclude periods where a plaintiff
is unavailable to work, such as periods of disability, from the back pay
award." Latham v. Department of Children & Youth Servs., 172 F.3d 786,
794 (11th Cir.1999) (quoting Miller v. Marsh, 766 F.2d 490, 492 (11th
Cir.1985). The agency argues that complainant was unable to work between
pay period 12 in 1999 and entire pay period 13 in 1999, and that he is
therefore not entitled to an award of back pay for that period because
his disability meant that he was not ready, willing, and able to perform
his postal job. Complainant responds that he was in fact ready, willing,
and able to work. Specifically, complainant argues that he underwent
a number of medical exams for his return to work during the time in
question, all which found him capable of a full range of motion. The
Commission resolution of this issue depends on whether complainant was
unable or unwilling to work, which in turn depends on what the essential
functions of complainant's job were.
Because the agency failed to establish that complainant was not ready,
willing, and able to work from pay period 12 to pay period 13 in 1999,
we find that complainant is entitled to back pay from the second week
in pay period 12, and the entirety of pay period 13. Complainant is
also entitled to the payment of interest on the back pay.
Optional Overtime
Complainant argues that the agency erred in calculating his overtime.
Specifically, complainant argues that the agency based its calculations
on the overtime worked by a comparison employee and that the use of a
comparison employee contradicts the agency's own regulations. Complainant
requests that the compliance officer require the agency to document the
average overtime desired lists, for tour three, from June 1995 until
August 9, 1999. The agency responded that all available overtime that
was worked by the comparison employee was afforded to complainant.
The agency also argued that the agency used the fairest method.
The Commission has held that the precise amount of back pay a complainant
is entitled is to be calculated by taking the average amount of overtime
worked by similarly situated agency employees. The Commission has
consistently used the pay of similarly situated employees in making
overtime rate determination. Sanders v. United State Postal Service, EEOC
Petition No. 04990018 (April23, 2001); Sanchez v. United States Postal
Service, EEOC Appeal No. 01975022 (October 28, 1999); Hanns v. United
States Postal Services, EEOC Appeal No. 04960030 (September 18, 1997);
Allen v. Department of the Air Force, EEOC Petition No. 04940006 (May
31,1996). A review of the record establishes that the agency calculated
the overtime hours for purposes of back pay by considering the average
overtime hours actually worked by employees similarly situated to
complainant. As a result, we find that the agency's calculation of
overtime is correct and we decline to accept complainant's position on
this point.
II. COMPENSATORY DAMAGES
In Cook v. United States Postal Service, EEOC No. 01964367 (March
22, 2001), the Commission found discrimination, in part, and awarded
compensatory damages. We ordered the agency to conduct a supplemental
investigation to determine the amount of compensatory damages due to
complainant, if any, and issue a final agency decision. Therefore,
the issue before the Commission is limited to the appropriateness of
the amount for the award. In order to receive an award of compensatory
damages, a complainant must demonstrate that he has been harmed as a
result of the agency's discriminatory action; the extent, nature, and
severity of the harmed; and the duration or expected duration of the
harm. Rivera v. Department of the Navy, EEOC Appeal No. 01934156 (July
22,1994), request for reconsideration denied, EEOC Request No. 05940927
(December 11, 1995); Compensatory Damages and Punitive Damages Available
Under Section 102 of the Civil Rights Act of 1991, (Guidance) EEOC Notice
No. N 915.002 at 11-12, 14 (July 14, 1992).
�[C]ompensatory damage awards must be limited to the sums necessary
to compensate [a complainant] for actual harm, even if the harm is
intangible.� Id at 13 (citing Carter v. Duncan-Higgins, Ltd., 727 F 2d
1225 (D.C. Cir. 1984). The Commission has held that compensatory damages
are recoverable in the administrative process, including resolutions by
settlement. West v. Gibson, 527 U.S. 212 (1999); see Jackson v. USPS,
EEOC Appeal No. 01923399 (November 12, 1992), req. to reopen den., EEOC
Request No. 05930306 (February 1, 1993); see also Turner v. Department
of the Interior, EEOC Appeal No. 01956390 April 28, 1998) and Bever
v. Department of Agriculture, EEOC Appeal No. 01953949 (October 31,
1996). Questions of entitlement, types of relief, and proof required
in support are set out in the Commission's Guidance, supra. Briefly
stated, compensatory damages are awarded for losses and suffering due
to the discriminatory acts or conduct of the agency and include past
pecuniary losses, future pecuniary losses, and nonpecuniary losses that
are directly or proximately caused by the agency's conduct. Guidance
at 8. Objective evidence in support of a claim for pecuniary damages
includes documentation showing all actual, out-of-pocket expenses with an
explanation of the expenditure and, for nonpecuniary claims, statements
from the complainant and others, including family members, co- workers,
and medical professionals. Guidance at 9; Carle v. Department of the Navy,
EEOC Appeal No. 01922369 (January 5, 1993).
Section 102(a) of the Civil Rights Act of 1991 (CRA) authorized awards of
compensatory damages as relief for intentional discrimination in violation
of Title VII and the Rehabilitation Act. 42 U.S.C. 1981a. Recovery from
employers with more than 500 employees, such as the agency, is limited
to $300,000 for future pecuniary and non-pecuniary damages. Id. The
Commission has determined that the statutory language of the CRA provides
that "each complaining party" is eligible for damages up to the cap. See
Section 1981a(b)(3); Guidance at 6.
The Commission notes that complainant seeks reimbursement of medical cost
for his daughter that would have been covered by his health insurance if
he was not denied employment. The agency issued a decision and concluded
that complainant is not entitled to pecuniary damages for his daughter's
medical expenses and that the collateral source rule does not apply to
complainant's claim.
We find no basis to award compensatory damages. Complainant failed to
demonstrate that he suffered harm, as result of the agency's action.
Specifically, complainant failed to establish that he had incurred the
past pecuniary damages of her daughter's medical expenses. The evidence
shows that his daughter's medical expenses were paid by his daughter's
guardian. Therefore, complainant has not submitted any documentation of
his out-of-pocket expenses, but instead submitted evidence establishing
that his daughter's medical expenses were paid by his daughter's trust.
The agency is only responsible for those damages to complainant that
are shown to be caused by the agency's conduct. Carle v. Department of
the Navy, EEOC Appeal No. 01922369 (January 5, 1993); Fazekas v. United
States Postal Service, EEOC Appeal No. 01954627 (April 7, 1997); see
also Johnson v. Department of Interior, EEOC Appeal No. 01961812 (June
18, 1998). We find that the agency's discrimination did not caused any
harm to complainant regarding his daughter's medical expenses, because
those medical cost were not paid for by complainant.
We also agree with the agency that the collateral source rule does
not apply. The collateral source rule allows a complainant to recover
full benefits received from a source collateral to the responding agency
as they may not be used to reduce the agency's liability for damages
by payments made to complainant from a collateral source. Wallis ,
supra. This includes benefits such as medical costs and unemployment
benefits but does not apply to amounts received under FECA. Double
recovery is not an issue, because complainant's health insurer may
recover from him the monies it expended on his behalf. See Ward-Jenkins
v. Department of the Interior, supra. As we noted, complainant's
daughter's medical expenses were not paid by complainant, therefore,
complainant did not receive any payment from a collateral source in
order to mitigate the damages caused by the agency. Rather, we find
that his daughter's trust paid for his daughter's medical expenses.
The record also reveals that complainant admitted on appeal that
the federal employee Blue Cross program, his health insurance, has
made payment to the medical providers and those providers are in the
process of repaying complainant's daughter's guardianship. Therefore,
we conclude that complainant is not entitled to compensatory damages
because he failed to prove any loss from which he must be reimbursed.
CONCLUSION
Accordingly the agency's decision is AFFIRMED in part and MODIFIED in
part. The agency is directed to comply with the Order below in regard
to complainant's back pay claim.
ORDER
Within thirty (30) calendar days of the date ths decision becomes final,
the agency shall pay complainant the amount of back pay and interest from
the second half of pay period 12 and pay period 13, 1999. The agency
is further directed to submit a report that shall include supporting
documentation of the calculation of back pay, interest and evidence that
the corrective action has been implemented.
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.
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
July 11, 2002
__________________
Date