Joseph A. Ortiz, Complainant,v.John E. Potter, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionSep 25, 2002
01a15376 (E.E.O.C. Sep. 25, 2002)

01a15376

09-25-2002

Joseph A. Ortiz, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.


Joseph A. Ortiz v. United States Postal Service

01A15376

9/25/02

.

Joseph A. Ortiz,

Complainant,

v.

John E. Potter,

Postmaster General,

United States Postal Service,

Agency.

Appeal No. 01A15376

Agency No. 1B-1395�93, 1B-1540-93

Hearing No. 160-94-8110X

DECISION

Joseph Ortiz (Complainant) timely initiated an appeal from a final

agency decision (FAD) concerning his entitlement to compensatory

damages incurred as a result of the agency's unlawful employment

discrimination in violation of 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.

BACKGROUND

Complainant filed formal complaint alleging he had been discriminated

against on the basis of disability (deafness) by failing to provide him

with an interpreter as an accommodation to his impairment at numerous

meetings held at the agency's Rochester, New York facility, most

recently, on March 23, 1993, when a safety talk was conducted without

an interpreter for the hearing impaired. Complainant also alleged that

the agency discriminated against him on the basis of disability when it

failed to provide an interpreter as an accommodation of his disability

at a Memorial Day Service Talk on May 28, 1993.

Following an investigation, complainant requested a hearing before

an EEOC Administrative Judge. Following the hearing, the AJ issued a

recommended decision finding that complainant had not been subjected

to discrimination. Complainant appealed, and we affirmed the agency's

finding of no discrimination. Thereafter, complainant filed a Request for

Reconsideration of our prior decision. Therein, we reversed our initial

decision and found that complainant had been denied an interpreter on

numerous occasions, and had established that those additional denials

constituted a continuing violation. See Ortiz v. United States Postal

Service, EEOC Request No. 05960270 (October 16, 1998). Specifically,

we found the agency repeatedly failed to provide interpreters, and

had also occasionally required hearing impaired workers to attend

separate meetings at which inadequate written summaries were provided.

The Commission's decision afforded both parties reconsideration rights

since we had made the first determination on the merits as to some of

complainant's additional allegations.

Thereafter, the agency filed a request for reconsideration, and argued the

Commission erroneously expanded the scope of the complaints. See Ortiz

v. United States Postal Service, EEOC Request No. 05990136 (November

29, 2000). In its request, the agency also argued that the Commission

erred when it ordered the agency to permit complainant to transfer back

to the Rochester facility from which he transferred following his failure

to be accommodated.

In our second decision on reconsideration, we found there had been

no error to count the numerous other instances where complainant had

been denied an interpreter. Furthermore, we found that complainant

had credibly stated that his transfer from Rochester to a facility in

Maryland, was in part, due to the discriminatory actions of the agency,

and caused him great mental anguish. The prior decision noted that we

could not permit ongoing noncompliance with the Rehabilitation Act to

pass unremedied and unacknowledged, and therefore, we denied the agency's

request and ordered appropriate relief.

Included in our order was our directive to the agency to consider

complainant's claim of compensatory damages. On January 23, 2001, the

agency issued a final decision finding that complainant was entitled

to $84.00 in pecuniary damages, and $4,000 in non pecuniary damages for

emotional distress.

Specifically, the agency found that although complainant had requested

$28, 204.36 in pecuniary damages for attorneys fees and costs, debt

management, moving expenses, apartment rental, loss of wages and

annual leave, as well as out of pocket medical expenses, he had not

established that the majority of the expenses were causally related to

the discrimination in the instant complaints. Rather, the agency found

complainant's moving and rental expenses were related to his decision to

move closer to his fianc�, who worked in Washington, D.C. Furthermore,

the agency found complainant was not entitled to any reimbursement

for debt management or lost wages since he was never out of work.

Finally, the agency found complainant was only entitled to out of pocket

medical expenses related to his ulcer, because he had not proven that

his claimed �estimate� of psychiatric expenses was causally related to

the discrimination.

Complainant also claimed $40,000 for non-pecuniary damages. After

reviewing Commission precedent, however, the agency found complainant

should only be awarded $4,000 for his stress and related symptoms.

This appeal followed.

ANALYSIS AND FINDINGS

Pursuant to section 102(a) of the Civil Rights Act of 1991, a complainant

who establishes his 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

(i.e., 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. The Supreme Court has confirmed that the Commission

possesses the legal authority to require federal agencies to pay

compensatory damages. See West v. Gibson, 527 U.S. 212 (1999).

The particulars of what relief may be awarded, and the proof necessary to

obtain that relief, are set forth in detail in Compensatory and Punitive

Damages Available Under Section 102 of the Civil Rights Act of 1991,

EEOC Notice No. 915.002 (July 14, 1992) (Compensatory Damages Notice).

Briefly stated, the complainant must submit evidence to show that the

agency's discriminatory conduct directly or proximately caused the losses

for which damages are sought. See Damiano v. United States Postal

Service, EEOC Request No. 05980311 (February 26, 1999). The amount

awarded should reflect the extent to which the agency's discriminatory

action directly or proximately caused harm to complainant and the extent

to which other factors may have played a part. See Compensatory Damages

Notice, at 11-12. The amount of non-pecuniary damages should also reflect

the nature and severity of the harm to complainant, and the duration or

expected duration of the harm. Id. at 14. A complainant is required

to provide evidence that will allow an agency to assess the merits

of complainant's request for emotional distress damages. See Carle

v. Department of the Navy, EEOC Appeal No. 01922369 (January 5, 1993).

Pecuniary Damages

Complainant claimed pecuniary damages for expenses related to his

attorney fees, interpreter costs, moving expenses, rent, loans, debt

management and medical bills. As an initial matter, we note that in

order for complainant to recover attorney fees, he must comply with the

directions listed in the paragraph below. As for his claimed expenses

related to rent and loans when he moved from Rochester, New York to

Frederick, Maryland, we find complainant failed to establish that these

expenses were causally related to the discrimination. In that regard,

we note that complainant would have had to pay ordinary living expenses

whether or not he had been subjected to discrimination or not. See Wan

v. United States Postal Service, EEOC Appeal No. 01995204 (July 11, 2001).

As for his claim for debt management expenses, we do not find that these

expenses are causally related to the discrimination, and are denied.

Complainant's claims of moving expenses, however, are causally related

to the discrimination since the prior decision determined complainant

was forced to transfer to Frederick, Maryland from Rochester, New

York because of the discrimination. Complainant presented sufficient

evidence of these expenses by supplying receipts for a truck rental,

equipment rental and storage fees for a total amount of $1,317.16.

The evidence also supports complainant's contention that he suffered

physically and emotionally from the agency's actions. However, for

the most part, complainant failed to supply us with sufficient proof

of his psychiatric expenses such that we can determine the amount of

expenses to award. Commission precedent establishes that in order

to establish entitlement to out-of-pocket expenses, a complainant must

provide documentation of those expenses. See Hogeland v. Department of

Agriculture, EEOC Appeal No. 01976440 (June 14, 1999). However, we do

find sufficient evidence of medical treatment relating to complainant's

ulcer, which does appear to be causally related to the discrimination.

As such, we affirm the agency's award of $84.00 for medical expenses

related to his ulcer.

Future Pecuniary Damages

Although complainant contends that he will continue to see a therapist

in the future, he failed to provide any statement or evidence as to how

often he will require treatment, and how much the treatment will cost.

As such, we are unable to make an award of future pecuniary damages.

Non-Pecuniary Damages

There are no definitive rules governing the amount of non-pecuniary

damages to be awarded. Non-pecuniary damages must be limited, however,

to the sums necessary to compensate the injured party for actual harm,

even where the harm is intangible. The existence, nature, and severity

of emotional harm must be proved. 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. Emotional harm may manifest itself,

for example, as anxiety, stress, depression, marital strain, humiliation,

emotional distress, loss of self esteem, excessive fatigue, or a nervous

breakdown. Id. A proper award should take into account the severity of

the harm and the length of time that the injured party suffered the harm.

See Carpenter v. Department of Agriculture, EEOC Appeal No. 01945652

(July 17, 1995). Finally, 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 Jackson v. United States Postal Service, EEOC

Appeal No. 01972555 (April 15, 1999), citing Cygnar v City of Chicago,

865 F.2d 827, 848 (7th Cir. 1989).

After a review of the record, we find the agency's award of $4,000 is

inadequate to compensate complainant for emotional distress he suffered

as a result of the agency's failure to provide interpreter services from

1991 through 1995. As an initial matter, we note that the evidence

of the record supports complainant's position that he suffered both

physically and emotionally from the discrimination. In his statement,

complainant recounts how excited he was to work for the agency, but

grew increasingly sad when the agency failed to treat him the same as

hearing employees. In that regard, complainant described the insomnia,

paranoia, vomiting, depression, and stomach ulcers he suffered as a result

of the agency's failure to provide an interpreter. Complainant recounts

that the agency's actions have caused him a loss of enjoyment of life,

as well as a loss of reputation. Complainant also supplied statements

from two friends wherein they describe the mental anguish complainant

endured as a result of the discrimination. On appeal, complainant states

that he still sees a counselor to help with depression and sleep apnea.

After a careful review of the record, as well as Commission precedent,

we find $50,000 an appropriate amount to compensate complainant for

the emotional distress he suffered as a result of the agency's actions.

Complainant presented sufficient objective evidence to establish that

the agency's actions caused him emotional distress which has lasted for

several years. Similar cases with somewhat similar evidence support

this award. See, e.g., Bowden v. Dep't of Veterans Affairs, EEOC Appeal

No. 01A00360 (June 22, 2000) ($45,000 award for non-pecuniary damages

where the agency subjected complainant to harassment, which resulted in

exacerbation of depression, injury to professional standing, character,

reputation, and credit rating, humiliation, physical manifestations,

loss of self-esteem, and marital and family problems); Turner v. Dep't

of Interior, EEOC Appeal No. 01956390 (April 27, 1998) ($40,000 award

for non- pecuniary damages where the agency subjected complainant

to sexual harassment and retaliation, which resulted in depression,

anger, anxiety, frustration, sleeplessness, crying spells, loss of self

esteem and strained relationships); Wallis v. U.S. Postal Service, EEOC

Appeal No. 01950510 (November 13, 1995) ($50,000 award for non-pecuniary

damages where the agency retaliated against complainant, which resulted

in exacerbation of a preexisting mental condition, loss of reputation,

injury to credit standing, emotional distress, loss of enjoyment of life,

and loss of health.)

Accordingly, the agency's final decision is MODIFIED. The agency is

directed to comply with the ORDER below.

ORDER (D0900)

The agency is ordered to take the following remedial action:

Within thirty (30) calendar days from the date this decision becomes

final, the agency shall pay complainant $50,000 in non-pecuniary damages,

less any damages already received. The agency shall also pay complainant

$1,401.16 in past pecuniary damages.

The agency shall pay complainant's reasonable attorney's fees in

accordance with the paragraph below.

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.

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 (R0900)

This is a decision requiring the agency to continue its administrative

processing of your complaint. However, if you wish to file a civil

action, you have the right to file such action in an appropriate United

States District Court within ninety (90) calendar days from the date

that you receive this decision. In the alternative, you may file a

civil action after one hundred and eighty (180) calendar days of the date

you filed your complaint with the agency, or filed your appeal with the

Commission. 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. 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

9/25/02

Date