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