01a10156
03-16-2001
David J. Maez, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
David J. Maez v. United States Postal Service
01A10156
March 16, 2001
.
David J. Maez,
Complainant,
v.
William J. Henderson,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A10156
Agency No. 4-E-852-1057-94
DECISION
Complainant timely initiated an appeal to the Equal Employment Opportunity
Commission (Commission or EEOC) from a final agency decision (FAD)
concerning his claim that he was discriminated against, in violation of
Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. �2000e
et seq. and Section 501 of the Rehabilitation Act of 1973, as amended, 29
U.S.C. � 791 et seq.<1> The Commission accepts this appeal in accordance
with 29 C.F.R. � 1614.405.
ISSUE PRESENTED
The issue presented is whether complainant established that he was
entitled to compensatory damages beyond the amount of $3,500.00.
BACKGROUND
This appeal arises out of a lengthy procedural history. Complainant
originally filed a formal EEO complaint on March 8, 1994, in which he
alleged that agency officials discriminated against him on the bases of
his race (Hispanic), color (brown), age (46), reprisal (for prior EEO
activity) and physical disability (hearing impairment requiring the use of
hearing aids) when he was removed from his position as a City Carrier in
the Tucson, Arizona, Post Office. Although the agency initially dismissed
the complaint for untimeliness, complainant appealed to this Commission,
and the agency's dismissal was vacated. Maez v. United States Postal
Service, EEOC Appeal No. 01943850 (December 28, 1994). Pursuant to the
Commission's order, the agency then accepted the complaint and conducted
an investigation.
The investigation revealed that, in August 1993, complainant was hired by
the Tucson Post Office as a Part - Time Flexible (PTF) City Carrier. As a
prerequisite to assuming this position, complainant was required to pass
the agency's 2870 Driver's Road Test ("the road test") on a half-ton
right-hand drive vehicle. The record indicates that complainant took
the test on September 23, 1993 and was subsequently informed that he
had failed. As a result, complainant was removed from his PTF City
Carrier position.
Upon receipt of the investigative report on his EEO complaint challenging
his removal, complainant waived his right to a hearing and requested a
final agency decision on the record. On September 5, 1995, the agency
issued its final decision, concluding no discrimination had occurred
on any of the bases alleged. Complainant again appealed the agency's
decision to the Commission. The Commission vacated the agency's decision,
finding the agency had failed to develop "a complete and impartial
factual record," and remanded the case for a supplemental investigation.
Maez v. United States Postal Service, EEOC Appeal No. 01960391 (September
12, 1996). In its decision, the Commission noted that the "primary
problem" with the initial investigation was the agency's failure to
provide a copy of the results of complainant's road test to corroborate
its articulated reason for complainant's termination. In addition,
the Commission held that the statements provided by the Instructor, who
administered the road test to complainant, were not entirely clear as to
how many errors complainant committed on the test and what the testing
standards were. Moreover, the Commission found that the agency should
have provided the results of the road tests taken by seven comparative
employees named by complainant during the initial investigation.
Pursuant to the Commission's order, the agency conducted a supplemental
investigation and, on December 26, 1996, issued a final decision
again concluding no discrimination had occurred on any of the bases
alleged. Complainant once more appealed the agency's decision to
the Commission. In Maez v. United States Postal Service, EEOC Appeal
No. 01972692 (March 22, 2000), the Commission concluded that complainant
had been discriminated against and reversed the agency's final decision.
In that decision, the Commission concluded that the agency had failed,
without good cause, to fully comply with the order in the prior
decision to provide the road test results of the comparative employees.
Consequently, the Commission drew an adverse inference against the agency
and found that the requested information would not have supported the
agency's position. Thereafter, the Commission remanded the case to the
agency with directions, among other things, for the agency to conduct
an investigation into complainant's entitlement to compensatory damages.
The instant appeal is from the agency's final decision that complainant
was entitled to $3,500.00 in compensatory damages. On appeal complainant
asserts, among other things, that he provided sufficient evidence to
establish entitlement to a significant award of compensatory damages
and that the agency failed to fully consider that evidence.
ANALYSIS AND FINDINGS
Section 102 (a) of the Civil Rights Act of 1991 (1991 CRA) 105 Stat. 1071,
Pub. L. No. 106-166, codified at 42 U.S.C. � 1981a, authorizes an award
of compensatory damages as part of make-whole relief for intentional
discrimination in violation of Title VII of the Civil Rights Act of 1964,
as amended, and the Rehabilitation Act of 1973, as amended. Section
1981a(b)(2) indicates that compensatory damages do not include back pay,
interest on back pay, or any other type of equitable relief authorized by
Title VII. Section 1981a(b)(3) limits the total amount of compensatory
damages that may be awarded each complaining party for future pecuniary
losses, emotional pain, suffering, inconvenience, mental anguish, loss of
enjoyment of life, and other nonpecuniary losses, according to the number
of individuals employed by the respondent. The limit for a respondent
who has more than 500 employees is $300,000. 42 U.S.C. � 1981a(b)(3)(D).
Compensatory damages are recoverable in the administrative process. See
West v. Gibson, 119 S.Ct. 1906 (1999). Thus, if a complainant has
alleged that he is entitled to compensatory damages and the agency or
the Commission enters a finding of discrimination, the complainant must
be given an opportunity to submit evidence establishing his claim. 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 harm; 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); Enforcement Guidance:
Compensatory Damages and Punitive Damages Available Under Section 102
of the Civil Rights Act of 1991, EEOC Notice No. N915.002 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)). Thus, a compensatory damages award should
reimburse a complainant for proven pecuniary losses, future pecuniary
losses, and nonpecuniary losses.
Past Pecuniary Damages
A complainant may recover past out-of-pocket expenses incurred as a
result of the intentional discrimination. EEOC Notice No. N915.002 at 8.
In other words, to recover damages, the complaining party must prove that
the employer's discriminatory act or conduct was the cause of his loss.
The critical question is whether the complaining party incurred the
pecuniary losses as a result of the employer's discriminatory action
or conduct. EEOC Notice No. N915.002 at 4. In the record before
the Commission, there is no showing that the complainant's medical
or psychiatric difficulties were the direct result of the agency's
discriminatory action. In the first instance, we agree with the agency's
position that the records submitted by the complainant show that he had a
history of angina. See Exhibit H. Complainant has not shown, however,
that his medical difficulty, i.e., his triple bypass heart surgery, was
a direct result of his termination from the postal service. On appeal,
complainant submits a copy of a letter from his attending physician in
support of his claim that the termination caused his medical condition.
In the letter from a Dr. G (initial of last name), dated August 11,
2000, the doctor presents his professional opinion that complainant's
eating habits, exercise habits, rapid weight gain and general loss of
health after his termination were factors that �negatively impacted�
complainant's �general health and may have contributed to the onset of
exacerbation of coronary artery disease.� (Emphasis added). However,
this one page assessment is insufficient to overcome the multitude of
other negative stress factors experienced by complainant and the degree
to which those stressors impacted his health.
In fact, the record reveals that complainant had a history of:
posttraumatic stress syndrome dating from his military service,
alcohol abuse and significant marital discord. Moreover, complainant
failed to show a sufficient nexus between his major health problems
and his termination from the postal service during the third day of
his employment. Further, we find little merit in complainant's claim
that his termination ultimately led to his declaration of bankruptcy and
the loss of his house some seven years after the discriminatory event.
Accordingly, we affirm the agency's finding on past pecuniary damages.
Nonpecuniary Damages
An award of compensatory damages for nonpecuniary 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 or 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. United
States Postal Service, EEOC Appeal No. 01952288 (April 18, 1996).
In determining the amount of a compensatory damages award, we are guided
by the principle that a compensatory damages award is limited to the sums
necessary to compensate complainant for the actual harm caused by the
agency's discriminatory action and attempt to affix a reasonable dollar
value to compensate him for that portion of his emotional distress that
was caused by the discrimination. EEOC Notice No. N915.002 at 13.
There are no definitive rules governing the amount of nonpecuniary damages
to be awarded. However, nonpecuniary damages must be limited to the sums
necessary to compensate the injured party for actual harm, even where
the harm is intangible, see Carter v. Duncan - Higgins, Ltd., 727 F.2d
1225 (D.C. Cir. 1984), and should take into account the severity of the
harm and the length of time that the injured party has suffered the harm.
Carpenter v. Department of Agriculture, EEOC Appeal No. 01945652 (July 17,
1995); EEOC Notice No. N915.002 at 14. The Commission notes that for a
proper award of nonpecuniary damages, the amount of the award should not
be "monstrously excessive" standing alone, should not be the product of
passion or prejudice, and should be consistent with the amount awarded
in similar cases, see Cygnar v. City of Chicago, 865 F.2d 827, 848 (7th
Cir. 1989); EEOC v. AIC Security Investigations, Ltd., 823 F. Supp. 571,
574 (N.D. Ill. 1993).
In the instant matter, complainant has failed to show that the
discriminatory action of the agency caused or in any significant way
contributed to his damages claim for emotional harm and any loss of
consortium. The claim of emotional harm will be seriously undermined
if the onset of symptoms of emotional harm preceded the discrimination.
See EEOC Notice No. N915.002 at 5. While the agency is not absolved
from responsibility for the additional emotional harm occasioned by
complainant's sensitivity, it can only be held responsible for that
harm that it caused. The record reveals that a number of other
stressors were primarily responsible for his emotional state. Here,
a history of post traumatic stress because of service in Vietnam and
Desert Storm, a history of drinking and marital problems, as well as
psychiatric problems experienced by his son, all are stressors that
have been documented and are independent of complainant's termination
from the postal service. In numerous psychiatric reports concerning
his emotional state, complainant's termination from the post office is
the least mentioned as a cause of his problems. See Exhibit D.
In several decisions the Commission has awarded nonpecuniary damages for
emotional distress or mental anguish. In White v. Department of Veterans
Affairs, EEOC Appeal No. 01950342 (June 13, 1997), the Commission ordered
an award of $5,000.00 in nonpecuniary damages where the complainant's
testimony and his psychologist's report indicated that the harassment
the complainant endured, which took both sexual and nonsexual forms,
led complainant to suffer from anxiety, depression, emotional fatigue,
occasional nightmares, and insomnia. In Benson v. Department of
Agriculture, EEOC Appeal No. 01952854 (June 27, 1996), the Commission
affirmed the agency's award of $5,000.00 in nonpecuniary damages where the
complainant, his relatives, and his colleagues offered testimony regarding
the embarrassment and humiliation that the complainant suffered at work
as a result of the denial of promotional opportunities, a suspension,
and other adverse actions. In Kearins v. United States Postal Service,
EEOC Appeal No. 01974923 (August 3, 2000), an award of $3,500.00 was found
to be reasonable where a significant amount of complainant's emotional
stress was attributable to factors not related to the discrimination,
such as the death of complainant's mother and the emotional stress
attendant to his wife's work-related injury. Having carefully considered
the facts of this case, the Commission finds that the agency arrived at
a fair determination when it awarded complainant compensatory damages
in the amount of $3,500.00. In reaching this amount, the Commission
considered a number of factors, including: the nature and severity of
the discrimination, and the nature and severity of complainant's mental
anguish and related symptoms attributable to the discrimination. We also
considered that the primary factors related to complainant's emotional
distress were factors unrelated to the agency's discriminatory action.
Back pay
As set forth previously in this decision, compensatory damages do
not include back pay, interest on back pay, or any other type of
equitable relief authorized by Title VII. See 42 U.S.C. � 1981a(b)(2).
Furthermore, in Maez v. United States Postal Service, EEOC Appeal
No. 01972692 (March 22, 2000), the Commission already ordered that
the agency make a determination of back pay owed to complainant .
That determination was not made in the decision which is before us
on appeal. Hence, the issue of back pay is not before us at this time.
Front pay
Front pay is not an appropriate remedy in the instant case. As a
general rule, reinstatement into an appropriate position is preferred
to an award of front pay. Romeo v. Department of the Air Force,
EEOC Appeal No. 01921636 (July 13, 1992). However, the Commission
has identified three circumstances where front pay may be awarded
in lieu of reinstatement: (1) where no position is available; (2)
where a subsequent working relationship between the parties would
be antagonistic; or (3) where the employer has a record of long-term
resistance to anti-discrimination efforts. Keys v. Department of Defense,
Defense Logistics Agency, EEOC Request No. 05870464 (May 6, 1988);
York v. Department of the Navy, EEOC Appeal No. 01930435 (February 25,
1994); Cook v. United States Postal Service, EEOC Appeal No. 01950027
(July 17, 1998). Further, an award of front pay requires that an
employee be available for work, regardless of the disabling condition,
and that if complainant is unable to return to work, he is not entitled
to an award of front pay. See, e.g., DiCamillo v. Department of the
Treasury, EEOC Request No. 05980180 (July 30, 1998); Holly v. United
States Postal Service, EEOC Appeal No. 01950220 (August 21, 1997).
In a statement by one of his attorneys to the agency's Manager of
EEO Complaints Processing complainant states that his bypass surgery
prevents him from accepting a position as a letter carrier. Accordingly,
complainant is not eligible for front pay.
CONCLUSION
Based on a thorough review of the record, and for the foregoing reasons,
it is the decision of the Equal Employment Opportunity Commission to
AFFIRM the agency's final decision. Complainant failed to establish
that he was entitled to compensatory damages beyond the $3,500.00 agency
award.
ORDER
The agency is ORDERED to take the following remedial action:
If it has not already done so, the agency shall pay complainant the
sum of $3, 500.00 within sixty calendar days of the date this decision
becomes final.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0900)
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)(Supp. V 1993). 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 (M0900)
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
March 16, 2001
__________________
Date
1The Rehabilitation Act was amended in 1992
to apply the standards in the Americans with Disabilities Act (ADA)
to complaints of discrimination by federal employees or applicants for
employment.