01A35278
11-22-2004
John H. Brown, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
John H. Brown v. United States Postal Service
01A35278
November 22, 2004
.
John H. Brown,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A35278
Agency No. 4-H-350-1123-95
DECISION
On September 12, 2003, the complainant, by and through his attorney,
timely initiated an appeal from a final agency decision (FAD) that
calculated compensatory damages. The FAD occurred after the decision of
Brown v. United States Postal Service, EEOC Request No. 05A20341 (July 5,
2002), which found that the complainant was discriminated against based
on his age and sex when he was involuntarily taken out of his position
and detailed to another job 130 miles away for six months. The decision
ordered various remedial actions, including the agency investigating the
complainant's entitlement to compensatory damages and calculating them.
The appeal is accepted pursuant to 29 C.F.R. � 1614.405.
ISSUE PRESENTED
Whether the FAD properly calculated compensatory damages.
BACKGROUND
The complainant worked as the Manager of In-Plant Support at the agency's
Birmingham, Alabama facility. In November 1994, he was discriminatorily
detailed to the position of Officer in Charge at its Sheffield, Alabama
facility, 130 miles away. After the replacement for his Birmingham job
left, he was returned to that job in May 1995. The complainant retired
in December 2001.
In support of his claim for compensatory damages, the complainant
submitted four affidavits executed in May 2003. They were by himself,
his wife, and two former colleagues. The complainant stated that up to
November 1994, he was proud of his advancement over his 28 career, and had
confidence in his knowledge and ability to solve problems. Colleague 1,
the former Manager of Personnel Services, worked with complainant.
Colleague 1 stated that up to November 1994, the complainant was a
high caliber visible manager who was very well regarded and respected.
He stated that the complainant was engaging, friendly, easy to work with,
confident, knowledgeable, and dedicated. Colleague 2, an Operations
Support Manager, worked for the complainant. Her statement corroborated
the above accounts.
The complainant stated that he was devastated when he was told that he was
not the right person for his job and involuntarily detailed for a perhaps
indefinite period. He viewed this as a rebuke to the achievements of
his 28 year career. During the six months in Sheffield, the complainant
stayed in a motel, and returned home on weekends. He stated that he spent
nights worrying about his future, staring at the floor, and could not
concentrate well enough to read books and magazines. He ate in the room
by himself to avoid being around people, often with tears in his eyes.
His wife stated that during this time, the complainant was depressed and
lonely and would call, but it was hard to console him. She stated that
on weekends he would toss and turn all night. Additionally, according to
the complainant, he was unwelcome in Sheffield Post Office. He explained
that his new supervisor was unhappy about having to replace an individual
he selected with a person he had been led to believe was incompetent,
that employees had a good relationship with the individual, felt the
individual was mistreated, and assumed the complainant was incompetent
because he had been taken out of his job.
The complainant stated that he returned to Birmingham in May 1995 after
his replacement left, and was scared of losing his job. He stated that
he become a different person, lost confidence in his ability, wanted to
be inconspicuous and make no waves, and agreed with others' ideas so he
would not be blamed if the idea did not work out well. According to the
complainant, he was constantly on �pins and needles,� and a colleague
told him he looked like a �whipped puppy.� He withdrew from fellow
employees and friends. The complainant's wife stated that after his
return to Birmingham her husband was consumed with fear that he would
lose his job, and this continued. She stated he got nervous whenever
he was called to see his boss, and only quit worrying about losing his
retirement benefits when he became eligible to retire. These accounts
were corroborated by the statements of Colleagues 1 and 2. Colleague 1
added that after his return, the complainant was no longer visible, easy
going, friendly, or engaging. Colleague 2 stated that after his return,
the complainant was a tentative, indecisive and apprehensive manager,
and this did not change.
The complainant indicated that being taken out of his Birmingham job
severely damaged his reputation, which hurt. He wrote that during the
remainder of his career, people he never saw before would refer to his
detail, and he knew they felt it was because of something wrong he did.
Colleague 1 stated that when the complainant was taken out of his job,
he and many others on the management team wondered if the complainant
did something wrong, if he was as knowledgeable and dedicated as thought,
and if he was loyal and a team player.
The complainant stated that days after being taken out of his job, his
doctor gave him a prescription for Zoloft, an antidepressant he took
until his retirement in December 2001. He stated the side effects of
the Zoloft all but eliminated his sex life with his wife, something
that was a wonderful part of their marriage. The complainant stated
that their relationship suffered because he focused on his own concerns
and had little capacity to listen to hers, and they became two people
who happened to share the same address. He had no interest in family,
friends, movies, or vacationing together, things they previously enjoyed.
The complainant's wife stated the Zoloft eliminated their sex life,
and her husband could not cope. She stated that their marriage had
been wonderful, they enjoyed being together and doing lots of things
together, but after November 1994 did little together. She stated that
to the present day, the complainant has lost his optimism, cheer, and
zest for life.
ANALYSIS AND FINDINGS
Compensatory damages may be awarded for past pecuniary losses, future
pecuniary losses, and nonpecuniary losses that are directly or proximately
caused by the agency's discriminatory conduct. Compensatory and Punitive
Damages Available Under Section 102 of the Civil Rights Act of 1991,
EEOC Notice No. N 915.002 (July 14, 1992), at 8. This guidance is on
the Commission's website at www.eeoc.gov. The complainant requests
nonpecuniary damages. Nonpecuniary losses are losses that are not
subject to precise quantification including emotional pain and loss of
health. Id. at 10.<1>
The FAD awarded the complainant $18,000 in nonpecuniary damages.
It noted the complainant was not terminated but involuntarily detailed,
and he returned to his job six months later. It found that it was likely
the complainant had depression as a result of the discrimination, it
was likely the depression or Zoloft caused his sexual dysfunction, and
the complainant's attitude toward work and his personality dramatically
changed. The FAD cited cases which awarded between $15,000 to $20,000
in nonpecuniary damages.
On appeal, the complainant cites Commission cases which awarded between
$80,000 and $150,000 in nonpecuniary damages, and states the complainant's
award should be commensurate.
In Day v. USPS, EEOC Appeal No. 07A10079 (November 2, 2001), the
complainant was discriminated against when a job offer was withdrawn.
The complainant experienced 5 years of emotional harm, including
sleeplessness, impotence, inability to communicate with family, feelings
of abandonment, anxiety, humiliation, depression, anger, feelings of
worthlessness, lack of motivation, suicidal thoughts, and weight loss.
The complainant did not leave the house for almost one year. He was
forced to sell him home and move into an apartment, and then took a long
distance job which separated him from his family. The complainant was
awarded $80,000 in nonpecuniary damages.
In Leon-Guerrero v. Department of Transportation, EEOC Appeal No. 01A11828
(May 22, 2002), the complainant was discriminated against when he was not
nominated for Executive Potential Program and rarely assigned to serve as
Acting Manager. The complainant experienced a loss of self-esteem and
professional standing, humiliation, and the discrimination contributed
to the break-up of her marriage. Statements of friends and co-workers,
as well as a physician corroborated the symptoms. There was an extended
period of harm. The complainant was awarded $60,000 in nonpecuniary
damages.
The complainant herein suffered many harms similar to those in Day
as a result of being taken out of his job and involuntarily detailed
outside commuting distance. As in Day, the complainant had extended
severe emotional harm, seven years in the complainant's case, with
less severity thereafter. This included depression, isolating himself,
constant anxiety about losing his job, loss of self-esteem, little or no
sexual relations with his wife and being emotionally estranged from her,
and being hurt by the damage to his work reputation. Further, immediately
after the detail, there was a six month period of separation during the
week from his wife, more severe isolation, and much tearfulness. However,
the complainant's injuries were not as severe as those described in Day.
Unlike Day, the complainant did not have suicidal thoughts, did not stay
in his home for almost a year, and was not forced to sell his home.
The complainant's situation is closer to that described in Leon-Guerrero.
The complainant underwent a metamorphosis from an outgoing, confident,
decisive person to a meek and depressed person which lasted an extended
period of time. A similar metamorphosis occurred in Leon-Guerrero.
Given the severity and duration of the complainant's emotional harm
resulting from the discrimination, we find the complainant is entitled
to $60,000 in non-pecuniary compensatory damages.
ORDER
The agency is ordered to take the following remedial actions:
1. Within 60 calendar days after this decision becomes final, it shall
pay the complainant $60,000 in non-pecuniary damages, less the $18,000
in non-pecuniary damages it already awarded him, to the extent this
payment has been made and redeemed.
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 verifying
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
November 22, 2004
__________________
Date
1 The complainant is not entitled to compensatory damages in
connection with his age claim. Taylor v. Army, EEOC Request
No. 05930633 (January 14, 1994). However, this does not reduce the
amount of compensatory damages to which he is entitled because the
action that was discriminatory also violated Title VII of the Civil
Rights Act of 1964, as amended, 42 U.S.C. � 2000e et seq.