07A10020
09-26-2003
Charles Hicks, Jr. v. United States Postal Service 07A10020 09-26-03 . Charles Hicks, Jr., Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Charles Hicks, Jr. v. United States Postal Service
07A10020
09-26-03
.
Charles Hicks, Jr.,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 07A10020
Agency No. 1G-781-0047-98
Hearing No. 360-99-8701X
DECISION
INTRODUCTION
Following its October 30, 2000 final order, the agency filed a timely
appeal which the Commission accepts pursuant to 29 C.F.R. � 1614.405.
On appeal, the agency requests that the Commission affirm its decision not
to implement the Administrative Judge's (AJ's) finding of discrimination.
The agency also requests that the Commission affirm its decision not
to implement the AJ's order to reinstate complainant to a probationary
position, reimburse him for backpay and lost benefits, and pay $25.59 in
costs and $70,000.00 in compensatory damages. For the following reasons,
the Commission reverses the agency's final order.
ISSUE PRESENTED
Whether complainant was discriminated against based on a perceived
disability (Carpal Tunnel Syndrome) when he was terminated during his
probationary period.
BACKGROUND
Complainant was hired by the agency as a part time flexible flat sorter
machine operator (FSMO) on March 28, 1998. After being fired during
his probationary period on May 1, 1998, complainant filed a formal
EEO complaint, alleging that the agency perceived him as being disabled
(Carpal Tunnel Syndrome).<1> The agency accepted complainant's complaint
for processing, and conducted an investigation of the matter. At the
conclusion of the investigation, complainant requested a hearing before
an EEOC Administrative Judge (AJ). Following a hearing, the AJ issued
a decision dated September 20, 2000, finding that complainant had been
subjected to disability discrimination when he was terminated from his
probationary position. The agency issued a final decision on October 30,
2000, stating that it would not implement the AJ's decision, and filed
the instant appeal with the Commission.
ANALYSIS AND FINDINGS
Pursuant to 29 C.F.R. � 1614.405(a), all post-hearing factual findings by
an AJ will be upheld if supported by substantial evidence in the record.
Substantial evidence is defined as �such relevant evidence as a reasonable
mind might accept as adequate to support a conclusion.� Universal
Camera Corp. v. National Labor Relations Board, 340 U.S. 474, 477 (1951)
(citation omitted). A finding regarding whether or not discriminatory
intent existed is a factual finding. See Pullman-Standard Co. v. Swint,
456 U.S. 273, 293 (1982).
After a careful review of the record, the Commission finds that the
AJ correctly determined that complainant was subjected to disability
discrimination. In order to establish a prima facie case, complainant
must show that he is an individual with a disability as defined in
29 C.F.R. � 1630.2(g), and that he is a qualified individual with a
disability as defined in 29 C.F.R. � 1630.2(m). An individual with a
disability is one who: 1. has an impairment which substantially limits one
or more major life activities; 2. has a record of such an impairment; or
3. is regarded as having such an impairment. 29 C.F.R. �1630.2(g). Major
life activities include caring for one's self, performing manual tasks,
walking, seeing, breathing, learning, and working. 29 C.F.R. �1630.2(i).
As noted by the AJ, there is no evidence that complainant either had a
substantially limiting impairment or had a record of such. The record
shows that, at most, complainant indicated, during his pre-employment
physical, that he had previously worn braces on his wrists at night
because of numbness in his hands. The physician contracted by the agency
to perform the examination cleared complainant for employment as a FSMO,
finding that he had no restrictions or limitations.
Nevertheless, the record supports the AJ's finding that the agency
regarded complainant as having a substantially limiting impairment.
In order to be considered substantially limited in the major life activity
of working, an individual must be significantly restricted in the ability
to perform either a class of jobs or a broad range of jobs in various
classes as compared to others having comparable training, skills, and
abilities. 29 C.F.R. � 1630.2(j)(3)(i). Further, several factors may
be considered when determining whether an individual is substantially
limited with regard to working, including the number and types of jobs
utilizing similar training, knowledge, skills, or abilities, within
the geographical area, from which the individual is also disqualified.
29 C.F.R. �1630.2(j)(3)(ii).
As stated by the AJ, the Training Technician sent two electronic messages
to various agency officials, stating that complainant was experiencing
problems with his hands during training. While the Technician stated
that complainant expressed these complaints to her, complainant stated
that she merely overheard a conversation he had with another employee
concerning a prior condition. Complainant noted that he acknowledged
having been diagnosed with Carpal Tunnel Syndrome, and wearing braces
on his wrists for a few months in 1995. The Training Technician also
made entries on complainant's Progress Report concerning problems with
his hands. The Technician acknowledged that she did not seek any further
explanation from complainant, and had no information about his condition.
At the time of his termination, complainant's supervisor (S) told
complainant that he was a safety hazard, noting that the Technician
indicated that complainant was having problems with his hands. S stated
that an FSMO typically performs keying functions for 5 to 6 hours, and
he was concerned complainant would not be able to key on the console for
that period of time. Neither the Technician nor S requested any medical
information concerning complainant's condition. It is noted that the AJ
found S's testimony that he believed complainant was only unsuitable for
the FSMO position not to be credible. See Grant v. Department of the
Treasury, EEOC Appeal No. 01985972 (August 2, 2001) (AJ's credibility
determinations are entitled to deference due to the judge's first-hand
knowledge through personal observation of the demeanor and conduct of the
witness at the hearing); see, also, Universal Camera Corp. v. National
Labor Relations Authority, 340 U.S. 474, 496 (1951). Further, the
Commission finds the keying function of the FSMO position to be equivalent
to that required for various computer and data entry positions. Thus,
there is substantial evidence in the record to support the AJ's finding
that the agency regarded complainant as being unable to perform a class
of jobs. Accordingly, we find that complainant established a prima facie
case of disability discrimination pursuant to the Rehabilitation Act.
The agency asserted that complainant was terminated because, at the
time of his 30-day review, his work quality, quantity, and methods were
unacceptable. Nevertheless, the record fails to support such a finding.
Complainant was required to successfully complete five training modules
within 17 hours in order to qualify for the position. At the time
of his termination, complainant had completed 3 modules in 9 hours.
While S stated that complainant failed to complete a refresher dexterity
course, he acknowledged that complainant was not required to do so, and
the record does not show that all other trainees met such a requirement.
The only other rationale offered by S for the unacceptable ratings was
the time it took complainant to complete the first two training modules.
The record, however, shows that other trainees took longer to complete
those modules than complainant and were still able to qualify for the
position. It is noted that the Technician stated that the only other
employees she was aware of who were terminated after a 30-day review
were those who failed to qualify within 17 hours, and that complainant
was not behind in his training. We also note the AJ's finding that
the agency failed to produce evidence to indicate that complainant's
condition presented a reasonable probability of substantial harm.
In this regard the AJ stated that, �The agency produced no evidence of
an individualized medical assessment of complainant's condition.� She
also noted complainant's testimony that he had previously worked with
computers eight hours a day and never had any problems with his hands
and that, since his termination, he worked in a position requiring data
input for eight hours which caused no numbness in his hands. Thus,
we find that the AJ's conclusion that complainant had been subjected to
disability discrimination is supported by substantial evidence.
It is noted that, on appeal, the agency challenged that AJ's award of
$70,000.00 in compensatory damages. 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). As the court noted in Balistrieri, "[t]he more inherently
degrading or humiliating the defendant's action is, the more reasonable
it is to infer that a person would suffer humiliation or distress from
that action; consequently, somewhat more conclusory evidence of emotional
distress will be acceptable to support an award for emotional damages."
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 AJ found in this case that complainant should receive an award of
nonpecuniary compensatory damages in the amount of $70,000.00 based upon
the testimony of complainant, his wife, and his pastor. These witnesses
confirmed that complainant experienced intense feelings of humiliation,
embarrassment, and rejection, that he was left emotionally devastated
by a termination process in which he was given no warning, and that such
feelings continued for two and a half years. The pastor testified that,
he and complainant spent �a lot of time talking and praying. I counseled
with him to trust God and put the situation in his hands.� According to
the pastor, complainant �was very discouraged after being terminated,�
and that �he went through a lot of mental anguish.� Complainant's wife
testified that the stress of being unemployed caused complainant to become
withdrawn and distant from her and from his children. The AJ determined
that the agency fired complainant in a publicly humiliating manner, and
that as a result of the termination, complainant went from being happy,
outgoing, energetic, and optimistic to being sad, bitter, depressed,
and withdrawn. Based on the foregoing, and considering the nature and
severity of the harm to the complainant, we find that the AJ's award
of nonpecuniary damages in the amount of $70,000.00 for the emotional
distress experienced by complainant in connection with his termination
is well within the appropriate range.
Damage awards for emotional harm are difficult to determine, and 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).
In this regard, we note the following cases where, as in the present
situation, expert testimony was provided regarding the extent of a
complainant's nonpecuniary damages. See Hartley v. Department of
Agriculture, EEOC Appeal No. 05990563 (December 27, 2002) ($85,000 awarded
where, as a result of sex discrimination and reprisal, complainant
suffered from major depression for three years after the harassment
ended, symptoms of which included loss of marital harmony, uncontrollable
crying, apprehension, loss of self-esteem, grief, worry, and stress).
Bernard v. Department of Veterans Affairs, EEOC Appeal No. 01966861
(July 17, 1998) ($80,000 in nonpecuniary compensatory damages awarded
where agency's bad-faith efforts to reasonably accommodate his disability
for two years, as well as its discriminatory nonselection of complainant
for a claims adjudication position resulted in depression, dental pain
from teeth-grinding, insomnia, nausea, vomiting, high blood-pressure,
and headaches); McCann v. Department of the Air Force, EEOC Appeal
No. 01971851 (October 23, 1998) ($75,000 awarded where discriminatory
discharge caused complainant significant pain and suffering over four
years, including feelings of psychological numbness, anger, insomnia,
a prolonging of additional depression, flashbacks, nightmares, intrusive
bad thoughts and memories, fear, fatigue, overall sour mood, diminished
pleasure in activities, some social withdrawal, less confidence on
the job, and a constant fear of unjustified job loss); and Wilson
v. Department of the Air Force, EEOC Appeal No. 01955269 (July 29, 1997),
request for reconsideration denied, EEOC Request No. 05970991 (March 18,
1999) ($53,000 awarded where complainant had been subject to sexual and
nonsexual harassment by a coworker and supervisor, had developed symptoms
of major depression and post-traumatic stress disorder, and needed
treatment for two years and nine months after the harassment ended).
CONCLUSION
Based upon a review of the record, and for the foregoing reasons it
is the decision of the Commission to REVERSE the agency's finding with
regard to the issue of disability discrimination.
ORDER
The agency is ORDERED to take the following remedial action:
1. The agency shall reinstate complainant to a part time flexible FSMO
position within fifteen (15) days of the date this decision becomes final.
Complainant shall be credited with the probationary time previously
served, and will begin the remainder of his probationary period at the
time of his reinstatement. Complainant shall receive credit for any
training previously completed.
2. The agency shall reimburse complainant for any lost wages, seniority,
leave, or other benefits incurred due to the May 1998 termination.
The agency shall determine the appropriate amount of back pay and other
benefits due claimant, pursuant to 29 C.F.R. � 1614.501, no later than
sixty (60) calendar days after the date this decision becomes final.
Complainant shall cooperate in the agency's efforts to compute the
amount of back pay and benefits due, and shall provide all relevant
information requested by the agency. If there is a dispute regarding
the exact amount of back pay and/or benefits, the agency shall issue a
check to Complainant for the undisputed amount within sixty (60) calendar
days of the date the agency determines the amount it believes to be due.
Complainant may petition for enforcement or clarification of the amount
in dispute. The petition for clarification or enforcement must be filed
with the Compliance Officer, at the address referenced in the statement
entitled "Implementation of the Commission's Decision."
3. The agency shall pay complainant $25.59 for costs incurred in
processing the instant complainant, as noted by the AJ. In addition,
the agency shall pay complainant $70,000.00 in compensatory damages.
Such payment shall be made within thirty (30) days of the date this
decision becomes final.
4. The agency shall conduct eight (8) hours of training for the
responsible management officials cited herein, including the Training
Technician and the Supervisor, addressing their responsibility under
equal employment opportunity law. The training shall place special
emphasis on preventing disability discrimination. The Commission does
not consider training to be a disciplinary action.
5. The agency shall consider appropriate disciplinary action against the
Training Technician and the Supervisor in connection with the termination.
The agency shall report its decision. 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.
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.
POSTING ORDER (G0900)
The agency is ordered to post at its San Antonio, Texas, General Mail
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 (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:
__________________________________
Frances M. Hart
Executive Officer
Executive Secretariat
______09-26-03____________________________
Date
POSTED BY ORDER OF THE
EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
An Agency of the United States Government
This Notice is posted pursuant to an Order by the United States Equal
Employment Opportunity Commission dated which found that a
violation of Section 501 of the Rehabilitation Act of 1973 (Rehabilitation
Act), as amended, 29 U.S.C. � 791 et seq. has occurred at this facility.
Federal law requires that there be no discrimination against any employee
or applicant for employment because of the person's RACE, COLOR, RELIGION,
SEX, NATIONAL ORIGIN, AGE, or DISABILITY with respect to hiring, firing,
promotion, compensation, or other terms, conditions or privileges of
employment. The San Antonio, Texas, General Mail Facility confirms its
commitment to comply with these statutory provisions.
The San Antonio, Texas, General Mail Facility supports and will comply
with such Federal law and will not take action against individuals
because they have exercised their rights under law.
The San Antonio, Texas, General Mail Facility was found to have
discriminated against an employee because of a perceived disability when
he was terminated during his probationary period. The San Antonio,
Texas, General Mail Facility has been ordered to, among other things,
retroactively provide the employee with a part-time flexible Flat Sorter
Machine Operator position, back pay, other benefits and compensatory
damages. Management was also directed to provide EEO training to the
responsible management officials. The San Antonio, Texas, General Mail
Facility will ensure that officials responsible for personnel decisions
and terms and conditions of employment will abide by the requirements
of all Federal equal employment opportunity laws.
The San Antonio, Texas, General Mail Facility will not in any manner
restrain, interfere, coerce, or retaliate against any individual who
exercises his or her right to oppose practices made unlawful by, or
who participates in proceedings pursuant to, Federal equal employment
opportunity law.
_______________________________
Date Posted: ____________________
Posting Expires: ________________
29 C.F.R. Part 16141Complainant initially asserted that the action was
also based upon his national origin; however, complainant withdrew that
basis during the administrative hearing.