07A30112
04-15-2004
Ishmel Johnson, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Ishmel Johnson v. United States Postal Service
07A30112
04-15-04
.
Ishmel Johnson,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 07A30112
Agency No. 1-H-304-0054-01
Hearing No. 110-A2-8023X-LL
DECISION
On August 17, 2001, an EEOC Administrative Judge (AJ) issued a decision
finding that the agency had violated Title VII of the Civil Rights
Act of 1964 (Title VII), as amended, 42 U.S.C. � 2000e et seq., by
not re-appointing complainant as a Casual employee at its Buck Mail
Facility in Atlanta, Georgia. Following its June 3, 2003 final order
not implementing the AJ's decision, the agency and complainant 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 rejection of the AJ's remedies awarded as a result of her finding
that it discriminated against complainant on the basis of reprisal for
prior EEO activity.<1> The agency determined that the remedies awarded
are not supported by the record and are well beyond what is reasonably
related to the issues in this case. Specifically, the agency concluded
that the evidence in the record does not support a backpay award for
Casual appointments for a continuous two-year period, and the compensatory
damages award of $22,000.00 is grossly excessive in comparison to awards
by the Commission in similar cases. The agency did not implement the
AJ's decision. For the following reasons, the Commission REVERSES the
agency's final order.
Complainant, a casual employee at its Buck Mail Facility in Atlanta,
Georgia, filed a formal EEO complaint with the agency on October 29, 2001,
alleging that the agency had discriminated against him on the basis of
reprisal for prior EEO activity, when on June 22, 2001, he was told by
his supervisor and manager that he would not receive a re-appointment
as a casual employee with the agency.
At the conclusion of the investigation, complainant was provided a copy of
the investigative report and requested a hearing before an AJ. Following
a hearing, the AJ found that complainant was denied re-appointment as a
casual employee with the agency as a result of reprisal for prior EEO
activity. The AJ further found that the agency's articulated reasons
for its action were not worthy of belief.
In a supplemental order following her finding of discrimination, the
AJ ordered, inter alia, the agency to pay complainant back pay, and
$22,000.00 in non-pecuniary compensatory damages. The AJ noted that the
compensatory amount awarded is based on the emotional distress that has
been incurred, the humiliation and the depression that the complainant has
suffered in the fact that he was not reinstated on June 22nd of 2001."
The AJ specifically noted that complainant is entitled to backpay from
the period of June 22, 2001, until April 1, 2003, which is the day of
complainant's ordered reinstatement.
In his appeal, complainant asks the Commission to uphold the AJ's ruling
on remedies awarded. Complainant contends that the AJ correctly figured
his back pay; the compensatory damage amount is not excessive; and in
fact, the Commission should consider increasing the amount in compensatory
damages to $60,000.00, "because the Administrative Judge and the agency
failed to take into account the duration of the discriminatory conduct."
On appeal, the agency argues, mainly, that the AJ's award of compensatory
damages was made in error because there is no evidence in the record
to support such an award; and the back pay award should be reduced
by the difference between an amount based on continuous, year-round
employment and one based on the 180-day and 21-day appointments per year.
In essence, the agency is strictly opposed to awarding back pay on a
continuous, year round basis for the time period assessed by the AJ.
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). An AJ's conclusions of law are subject to a
de novo standard of review, whether or not a hearing was held.
Pursuant to section 102(a) of the Civil Rights Act of 1991, a complainant
who establishes unlawful intentional discrimination under either Title VII
of the Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. � 2000e
et seq. or Section 501 of the Rehabilitation Act of 1973 (Rehabilitation
Act), as amended, 29 U.S.C. � 791 et seq. may receive 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)
as part of this "make whole" relief. 42 U.S.C. � 1981a(b)(3). In West
v. Gibson, 119 S.Ct. 1906 (1999), the Supreme Court held that Congress
afforded the Commission the authority to award compensatory damages in
the administrative process.
To receive an award of compensatory damages, a complainant must
demonstrate that he or she 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. 01934157 (July 22, 1994), req. for recons. den.,
EEOC Request No. 05940927 (December 11, 1995); Enforcement Guidance:
Compensatory and Punitive Damages Available Under Section 102 of the Civil
Rights Act of 1991, EEOC Notice No. 915.002 (July 14, 1992), at 11-12, 14.
Compensatory damages may be awarded for the past pecuniary losses,
future pecuniary losses, and non-pecuniary losses which are directly or
proximately caused by the agency's discriminatory conduct. EEOC Notice
No. 915.002 at 8. Objective evidence of compensatory damages can include
statements from the complainant concerning his or her emotional pain or
suffering, inconvenience, mental anguish, loss of enjoyment of life,
injury to professional standing, injury to character or reputation,
injury to credit standing, loss of health, and any other nonpecuniary
losses that are incurred as a result of the discriminatory conduct.
Statements from others, including family members, friends, health
care providers, other counselors (including clergy) could address the
outward manifestations or physical consequences of emotional distress,
including sleeplessness, anxiety, stress, depression, marital strain,
humiliation, emotional distress, loss of self-esteem, excessive fatigue,
or a nervous breakdown. See Lawrence v. United States Postal Service,
EEOC Appeal No. 01952288 (April 18, 1996), citing Carle v. Department
of the Navy, EEOC Appeal No. 01922369 (January 5, 1993).
Evidence from a health care provider or other expert is not a mandatory
prerequisite for recovery of compensatory damages for emotional harm.
A complainant's own testimony, along with the circumstances of a
particular case, can suffice to sustain his or her burden in this regard.
The 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.
To prevail in a claim for compensatory damages, complainant must establish
a causal connection between the discriminatory conduct and the harm
that he suffered. See Browne v. Department of Agriculture, EEOC Appeal
No. 01944256 (July 17, 1995). Complainant and his fiancee provided
detailed testimony as to the pain endured as a result of the agency's
unlawful action. Complainant testified to the extreme anxiety he felt
in having to continue to look for work at various warehouses around the
Atlanta area, while knowing that his termination from the agency prevented
him from getting meaningful work. Complainant and his fiancee further
testified that his life was adversely affected in that it took him six
months to find work; he was unable to sleep; he was restless, irritable,
and agitated; and he spent a lot of time responding negatively to loved
ones around him. Complainant testified that, while trying to make ends
meet, he was also trying to care for elderly parents, and that other
stressful situations were compounded. Complainant stated that during
the relevant period, his mother was seriously ill; his uncle died; and
he had tax problems. Complainant further stated that he had recurring
car problems that helped drain what savings he had, and that simple
pleasures like going to a movie or dinner became next to impossible.
Complainant maintained that he had suffered continuous depression -
as this was the second time he had been terminated from the agency as
a result of unlawful discrimination.
The Commission awards compensatory damages based on the extent of
the damages proved. See Turner v. Department of the Interior, EEOC
Appeal No. 01956390 (April 27, 1998) ($40,000.00 award for pain
and suffering resulting from discriminatory harassment); Johnson
v. Department of the Interior, EEOC Appeal No. 01961812 (June 18,
1998) ($35,000.00 award for frustration, anger, and irritability due
to race and reprisal discrimination with regard to work assignments,
a performance rating, and harassment). Further, federal courts have
awarded compensatory damages in a wide range of amounts depending on
the facts of the particular case. See, e.g., Fleming v. County of Kane,
State of Illinois, 898 F.2d 553, 562 (7th Cir. 1990) (jury award of
$120,000 reduced to $40,000 for embarrassment, humiliation, severe
headaches, sleeplessness, and depression following a termination);
Jackson v. Pool Mortgage Co., 868 F.2d 1178, 1180 (10th Cir. 1989)
($24,421 award for depression, muscle spasms, stomach pain, and hair
loss following a termination); Kuntz v. City of New Haven, 3 AD Cases
1590, 1592 (D.C. Conn. 1993) ($500 award for emotional distress based
on testimony that plaintiff was "disappointed", "cranky" with family
and friends, "embarrassed" at not having been promoted, and had many
sleepless nights), aff'd. without opinion, 29 F.3d 622 (2d Cir. 1994),
cert. denied sub nom., City of New Haven v. Kuntz, 155 S.Ct. 667 (1994);
McClam v. City of Norfolk Police Department, et al., 877 F. Supp. 277,
284 (E.D. Va. 1995) ($15,000 award for 18 months of headaches, lowered
self esteem, and changes in attitude and devotion toward job following
repeated denials of job transfer requests).
While the record, here, details complainant's personal hardships which
were exacerbated as a result of the agency's unlawful discrimination,
we find that the compensatory damages award must be consistent, as
noted above, with similar cases decided by the Commission. In view
of the evidence presented, we find that the AJ's award of $22,000 is
appropriate. We will therefore order the agency to pay complainant
$22,000 in compensatory damages.
Concerning complainant's back pay award, we find that the AJ's assessment,
awarding complainant backpay from the period of June 22, 2001, until
April 1, 2003, which is the day of complainant's ordered reinstatement,
is correct. While the agency argues that complainant is not entitled to
continuous pay, as a Casual, for the entire calendar year, the record
reflects that complainant had actually worked in this capacity on a
continuous, year-round basis for a 12-year period, just prior to his
June 22, 2001, termination. Thus, complainant's back pay is to reflect
continuous employment for the stated period. What amount in back pay
is justified will be determined consistent with the Order below.
Therefore, after a careful review of the record, including arguments
and evidence not specifically discussed in this decision, the Commission
REVERSES the agency's final order and remands the matter to the agency
to take corrective action in accordance with this decision and the
Order below.
ORDER (D1199)
The agency is ORDERED to take the following remedial actions:
(1) The agency shall pay complainant $22,000.00 in non-pecuniary
compensatory damages, no later than sixty (60) calendar days after the
date this decision becomes final.
(2) The agency shall determine the appropriate amount of back pay
consistent with the requirements set forth in this decision, along with
interest and other benefits due complainant, pursuant to 29 C.F.R. �
1614.501, no later than sixty (60) calendar days after the date this
decision becomes final. The 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 the complainant for the undisputed
amount within sixty (60) calendar days of the date the agency determines
the amount it believes to be due. The 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."
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 backpay and other benefits due complainant,
including 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
___04-15-04_______________
Date
1The agency does not challenge the AJ's
finding of discrimination. Nor does the agency challenge the AJ's
order to reinstate complainant to his Casual position, or to expunge
the letter of termination from his files. Therefore, the only issues
which will be addressed on appeal is the amount awarded in compensatory
damages and the question of back pay.