01A23646
05-29-2003
Joseph Wimberly, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Joseph Wimberly v. United States Postal Service
01A23646
05-29-03
.
Joseph Wimberly,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A23646
Agency No. 1-H-311-0036-99
Hearing No. 110-A0-8395X
DECISION
Complainant filed a timely appeal with this Commission from a final
agency action (FAD) concerning his claim for compensatory damages as the
prevailing party in his complaint of 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. For the following reasons, the Commission
affirms the FAD.
The issue presented herein is whether the Administrative Judge (AJ)
properly found that complainant is entitled to compensatory damages in
the amount of $8,500.00.
Complainant filed a complaint, alleging that he was a victim of race
(African-American) and disability (right knee chondromalacia patellae)
discrimination. The agency complied with all procedural and regulatory
prerequisites, and on October 23, 2001, the AJ issued a bench decision
finding discrimination when the agency failed to accommodate complainant's
disability when it only provided him with two hours of light-duty work
a day from November 28, 1998 through January 22, 1999.
The AJ held a hearing on compensatory damages and issued a decision
on April 10, 2002. The AJ awarded, among other things, non-pecuniary
damages in the amount of $8,500.00.<1> The AJ found that complainant
is entitled to non-pecuniary damages directly related to the agency's
failure to accommodate. In coming to her decision as to the appropriate
amount for the award, the AJ considered complainant's testimony as to
his pain and suffering, as well as that of his wife.
At the hearing, complainant's wife testified that the marital relationship
and level of communication in the marriage began to change in 1993
and 1994, and that when complainant had difficulties with his knee and
complications on his job, they worsened. She further stated that she
had surgery in November 1998, which required her to be out of work for
six weeks, and she explained that she relied upon complainant to pay
all the bills for this period. She described complainant as highly
stressed and distant toward the family. Complainant testified that he
had both martial and financial problems, and that his family problems
intensified during the relevant period. He also testified that he has
been emotionally destroyed by the agency's actions, and that it was
embarrassing, humiliating, and insulting for him to have to borrow money
and discuss his financial problems with others.
In its FAD, the agency implemented the AJ's decision.
This appeal followed. Complainant contends that the AJ's award of
$8,500.00 in compensatory damages does not properly compensate him for
the nature, severity, or duration of the harm he incurred, and continues
to endure as a result of the discrimination. He asserts that the AJ
limited his ability to fully present evidence of his emotional harm at
the hearing, and that the award is not consistent with damage awards in
other cases with similar facts. He maintains that a review of the hearing
record, medical records, and his affidavit will show that the emotional
harm he has suffered for four years, and continues to suffer, entitles
him to an award of $125,000 in non-pecuniary damages and attorney's fees
for this appeal.
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,
527 U.S. 212 (1999), the Supreme Court held that the Commission has the
authority to award compensatory damages in the federal sector EEO process.
The particulars of what relief may be awarded, and what proof is
necessary to obtain that relief, are set forth in detail in EEOC's
Enforcement Guidance, Compensatory and Punitive Damages Available Under
Section 102 of the Civil Rights Act of 1991 (July 14, 1992) (Guidance).
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. Id. at 11-12, 14; Rivera v. Department of
the Navy, EEOC Appeal No. 01934157 (July 22, 1994). The amount awarded
should reflect the extent to which the agency's discriminatory action
directly or proximately caused harm to the complainant and the extent
to which other factors may have played a part. Guidance at 11-12.
The amount of non-pecuniary damages should also reflect the nature and
severity of the harm to the complainant, and the duration or expected
duration of the harm. Id. at 14.
The Commission applies the principle that �a tortfeasor takes its victims
as it finds them.� Wallis v. United States Postal Service, EEOC Appeal
No. 01950510 (November 13, 1995) (quoting Williamson v. Handy Button
Machine Co., 817 F.2d 1290, 1295 (7th Cir. 1987). The Commission also
applies two exceptions to this general rule. First, when a complainant
has a pre-existing condition, the agency is liable only for the
additional harm or aggravation caused by the discrimination. Second, if
the complainant's pre-existing condition inevitably would have worsened,
the agency is entitled to a reduction in damages reflecting the extent to
which the condition would have worsened even absent the discrimination,
the burden of proof being on the agency to establish the extent of this
entitlement. Wallis, EEOC Appeal No. 01950510 (citing Maurer v. United
States, 668 F.2d 98 (2d Cir. 1981); Finlay v. United States Postal
Service, EEOC Appeal No. 01942985 (April 29, 1997). The Commission
notes, however, that complainant is entitled to recover damages only
for injury, or additional injury, caused by the discriminatory action.
Terrell v. Department of Housing and Urban Development, EEOC Appeal
No. 01961030 (October 25, 1996); EEOC Notice No. N 915.002 at 12.
After a careful review of the record, the Commission finds that the AJ's
findings of fact with respect to compensatory damages are supported by
the record. As a preliminary matter, we note that the agency is liable
solely for the harm resulting from its discriminatory acts. Here,
the agency discriminated against complainant insofar as he was denied
an accommodation for a period of two months, from November 28, 1998
to January 22, 1999. Although complainant presented medical evidence
that he has an anxiety disorder with dysthymia<2> due to situational
problems, and that he has experienced emotional harm for four years and
continues to suffer such, he has not shown that the agency's failure to
accommodate him from November 28, 1998 to January 22, 1999 is the cause
of this ongoing harm. Instead, other factors appear to have contributed
to complainant's emotional distress, such as his belief that he has been
labeled a �nonproductive worker,� and his continued conflicts at work.
We further note that the record reveals that complainant's marital
relationship and communication with his family began to change prior to
the discrimination.
Where the Commission found the agency to be liable for harm similar to
the harm caused by the agency in this case, we have awarded amounts
approximating $8,500.00. See Jones v. Department of Defense, EEOC
Appeal No. 01973551 (April 14, 2000) ($9,000.00 in non-pecuniary
damages based on complainant's statements of the interference
with family and marital relations, digestive problems, headaches,
anxiety, sleeplessness, and exhaustion resulting from the agency's
discrimination); Magestro v. Department of Health & Human Services, EEOC
Appeal No. 01995560 (February 21, 2002) ($8,000.00 in non-pecuniary
damages where discrimination caused mental anguish, sleeplessness,
anxiety, stress, depression, and humiliation); Rountree v. Department of
Agriculture, EEOC Appeal No. 01941906 (July 7, 1995) ($8,000.00 awarded
for emotional distress partially caused by agency's discrimination);
Butler v. Department of Agriculture, EEOC Appeal No. 01971729 (April 15,
1999) ($7,500.00 awarded for anxiety, worry, and emotional distress).
Based upon the aforementioned precedent, we find that an award of
$8,500.00 is appropriate. We therefore discern no basis to disturb the
AJ's decision.
After a review of the record in its entirety, including consideration of
all statements submitted on appeal, it is the decision of the Commission
to affirm the agency's final action.<3>
ORDER
The agency is ordered to take the following remedial actions:
1. Within sixty (60) days from the date this decision becomes final,
the agency shall pay complainant $8,500.00 in non-pecuniary compensatory
damages.<4>
2. 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 and other benefits due complainant, including
evidence that the corrective action has been implemented.
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
__05-29-03________________
Date
1 The AJ awarded additional relief, however,
complainant stated in his appeal that he only wishes to appeal the
non-pecuniary damages award.
2 Dysthymia is a disorder with a chronic depressed mood; it is a mild
form of depression.
3 The Commission notes that, since complainant is not a prevailing
party in this appeal, he is not entitled to attorney's fees related to
this appeal.
4 To the extent that the agency has not already done so, it shall provide
complainant all relief it awarded in its notice of final action, including
$2,000 as reimbursement for a loan; $209.53 as reimbursement for the
money he spent to buy back leave; and $1,297.50 for attorney's fees.
In addition, all leave used on the days complainant was only permitted
to work two hours shall be restored, if not already remedied with the
leave buy back.