01A21783
05-12-2003
Bennett A. Southerland, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Bennett A. Southerland v. United States Postal Service
01A21783
05-12-03
.
Bennett A. Southerland,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A21783
Agency No. 2G-1064-91
DECISION
INTRODUCTION
Complainant timely initiated an appeal from a final agency decision (FAD)
concerning his claim for compensatory damages following a finding that
he had been discriminated against in violation of the 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.
ISSUE PRESENTED
The issue presented is whether the agency correctly determined that
complainant was not entitled to compensatory damages.
BACKGROUND
The record indicates that complainant filed an EEO complaint alleging
discrimination on the bases of race (Black) and disability (Major
Depression with Psychotic Features) when on September 14, 1990, he
was removed. On June 12, 1992, the agency issued a decision finding no
discrimination. On appeal, the Commission issued a decision reversing
the agency. See Southerland v. United States Postal Service, EEOC
Appeal No. 01960247 (June 11, 1998). Among other things, the agency
was directed to rescind its Notice of Removal, reinstate complainant to
the position that he held at the time of his removal, provide back pay,
interest and other benefits. The agency was also ordered to conduct
a supplemental investigation concerning complainant's entitlement to
compensatory damages. The agency's request for reconsideration was
denied in EEOC Request No. 05980945 (April 11, 2000).
In accordance with the Commission's decision, the agency conducted a
supplemental investigation. Complainant submitted a claim for $100,000
for loss of career opportunities, $100,000 for loss of future earnings,
medical expenses, $300,000 for non-pecuniary damages, front-pay for the
period of time he was terminated until he was restored to duty with full
seniority; and $275.00 per hour in attorney fees to process his claim
for compensatory damages.
The agency, however, issued a decision denying complainant's claim.
This appeal followed.
ANALYSIS AND FINDINGS
Pursuant to section 102(a) of the Civil Rights Act of 1991, a
complainant who establishes his or her claim of unlawful discrimination
may receive, in addition to equitable remedies, compensatory damages
for past and future pecuniary losses (i.e., out of pocket expenses)
and non-pecuniary losses (e.g., pain and suffering, mental anguish).
42 U.S. C. � 1981a(b)(3). For an employer with more than 500 employees,
such as the agency, the limit of liability for future pecuniary and
non-pecuniary damages is $300,000. Id. After a review of the record,
we concur with the agency's finding that complainant is not entitled to
compensatory damages. In Landgraf v. USI Film Products, 511 U.S. 244
(1994), the Supreme Court held that the Civil Rights Act of 1991 did
not apply to acts of discrimination occurring before November 21, 1991.
The discrimination in this case occurred on September 14, 1990, when
complainant was removed. On appeal, complainant focused on the severity
and duration of the agency's actions, but he did not specifically address
the applicability of Landgraf in this matter.
The agency did not address complainant's claim for front pay. The Civil
Rights Act of 1991 indicates that compensatory damages do not include
back pay, interest on back pay, or any other type of equitable relief.
Front pay is a form of equitable relief that compensates an individual
when reinstatement is not possible in certain limited circumstances.
Awards of front pay imply that the complainant is able to work but
cannot do so because of circumstances external to the complainant. Goetze
v. Department of the Navy, EEOC Appeal No. 01991530 (August 22, 2001);
Brinkley v. United States Postal Service, EEOC Request No. 05980429
(August 12, 1999). In general, reinstatement is preferred to an award of
front pay. Romeo v. Department of the Air Force, EEOC Appeal No. 01921636
(July 13, 1992). In the present case, we deny complainant's request
for front pay because he is seeking payment for the period of time
that preceded his reinstatement. This claim should more appropriately
be viewed as a request for back pay, which the Commission has already
awarded in this case.
Finally, with regard to complainant's request for the attorney fees
incurred in processing his claim for compensatory damages, we find that,
because he was not a prevailing party in this matter, he is not entitled
to said attorney fees. See EEOC Management Directive 110, Chapter 11,
Section II.
CONCLUSION
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
_____05-12-03_____________
Date