05a30980
09-22-2003
Joseph Wimberly, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Joseph Wimberly v. United States Postal Service
05A30980
09-22-03
.
Joseph Wimberly,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Request No. 05A30980
Appeal No. 01A23646
Agency No. 1H-311-0036-99
Hearing No. 110-A0-8395x
DECISION ON REQUEST TO RECONSIDER
On July 2, 2003, Joseph Wimberly (complainant) timely initiated a
request to the Equal Employment Opportunity Commission to reconsider
the decision in Joseph Wimberly v. John E. Potter, Postmaster General,
United States Postal Service, EEOC Appeal No. 01A23646 (May 29, 2003).
EEOC regulations provide that the Commission may, in its discretion,
reconsider any previous decision where the party demonstrates that:
(1) the previous decision involved a clearly erroneous interpretation of
material fact or law; or (2) the decision will have a substantial impact
on the policies, practices, or operation of the agency. 29 C.F.R. �
1614.405(b).
In EEOC Appeal No. 01A23646, the Commission affirmed the decision
of an EEOC Administrative Judge (AJ) awarding compensatory damages
(non-pecuniary) of $8,500, as a result of a finding of discrimination
based on disability (knee) when he was not provided a reasonable
accommodation, i.e., given only two hours of light duty work, between
November 28, 1998, and January 22, 1999. In his request, complainant
contests the amount of the award and, in addition, asserts that he is
entitled to interest on all monetary relief from the date of the agency's
final order.<1> The gravamen of complainant's request to reconsider the
amount of the compensatory damages award is that the previous order did
not address his argument that the AJ prohibited evidence of damages after
the period of the discrimination, claiming that such damages were the
continuation of the effects of the agency's wrong-doing. In addition,
complainant argued that the cases cited by the previous decision as
comparisons to support the award of damages were 'factually distinct'
to the instant matter.
In order to merit the reconsideration of a prior decision, the requesting
party must submit written argument that tends to establish that at least
one of the criteria of 29 C.F.R. � 1614.405(b) is met. The Commission's
scope of review on a request for reconsideration is narrow and is not
merely a form of a second appeal. Lopez v. Department of the Air Force,
EEOC Request No. 05890749 (September 28, 1989); Regensberg v. USPS,
EEOC Request No. 05900850 (September 7, 1990). The Commission finds that
the complainant's request does not meet the regulatory criteria of 29
C.F.R. � 1614.405(b), in that, the request does not identify a clearly
erroneous interpretation of material fact or law, nor does it show that
the underlying decision will have a substantial impact on the policies,
practices or operation of the agency.
Compensatory Damages (Non-pecuniary)
The Commission has issued legal guidance on compensatory damages.
Enforcement Guidance: Compensatory and Punitive Damages Available
under � 102 of the Civil Rights Act of 1991, No. N 915-002 (July 14,
1992) (Guidance). In this matter, we only address the AJ's award of
non-pecuniary compensatory damages. Such damages are available for the
intangible injuries of emotional harm, such as emotional pain, suffering,
inconvenience, mental anguish, and loss of enjoyment of life, caused
by the agency's action that was found to be discriminatory. In this
matter, it is important to note that the agency is only responsible
for those damages that complainant shows were caused by the agency's
discriminatory conduct, that is, conduct that occurred during the period
between November 28, 1998, and January 22, 1999, and that the agency's
discriminatory action was the cause of the harm or loss. Guidance at 8.
To the extent that complainant sought -- or attempted to seek -- damages
for harm resulting from any agency actions outside that time period,
he has no entitlement to such damages, because the AJ's finding of
discrimination encompassed only the period from November 28, 1998, to
January 22, 1999. Merely because the AJ heard evidence of other claims
during the merits phase does not entitle complainant to damages for
events outside of the time period in which the discrimination occurred.
We have carefully reviewed complainant's evidence in support of his
claim for compensatory damages and find that the award of the AJ is
appropriate and correct. Here, the Commission found that the agency
discriminated against complainant from November 28, 1998, to January 22,
1999. Complainant is therefore only entitled to damages for pain and
suffering arising from events that occurred within or as a result of the
November 28, 1998, to January 22, 1999 discrimination. To the extent that
complainant believed that residual harm arising from the discriminatory
period was not considered, we do not agree. Instead, after a careful
review of the hearing transcript, we find that the hearing transcript
reflects that the AJ allowed complainant to present evidence of the harm
suffered with respect to the agency's discriminatory conduct, but did
not allow evidence regarding other alleged discriminatory actions by the
agency. We note, in addition, that complainant was awarded equitable and
other monetary relief, including monetary recompense for reimbursement
for a loan, leave restoration, and attorney's fees, in addition to
restoration of leave.
Interest
Complainant has asserted that he is entitled to interest on all relief
from the date of the agency's final order. Because compliance with final
orders, whether from the Commission or agency, is usually suspended upon
the filing of an appeal or request to reconsider and the agency has not
delayed payment, we find that complainant is not entitled to the interest
he requests.<2> See 29 C.F.R. �� 1614.504 and 502. Should the agency
delay any relief ordered herein, appropriate interest should be paid.
CONCLUSION
After a review of the complainant's request for reconsideration, the
previous decision, and the entire record, the Commission finds that the
request fails to meet the criteria of 29 C.F.R. � 1614.405(b), and it
is the decision of the Commission to deny the request. The decision
in EEOC Appeal No. 01A23646 remains the Commission's final decision.
There is no further right of administrative appeal on the decision of
the Commission on a request for reconsideration. The agency is directed
to comply with the Order, below, as repeated from the previous decision.
ORDER
To the extent that it has not already done so, 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.
2. Within thirty (30) days of the date this decision becomes final,
the agency 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.
3. 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 relief ordered and benefits due complainant,
including evidence that the corrective action has been implemented.
Complainant and his attorney/representative shall be sent a copy of all
documentation sent to the Commission.
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 COMPLAINANT'S RIGHTS - ON REQUEST FOR RECONSIDERATION
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (P0900)
This decision of the Commission is final, and there is no further right
of administrative appeal from the Commission's decision. 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.
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
___09-22-03_______________
Date
1Complainant did not dispute the other relief awarded by the AJ, including
reimbursement for a loan, leave restoration, and attorney's fees.
2The Commission has held that the Civil Rights Act of 1991 authorized
payment of interest to federal employees on back pay which accrued
subsequent to November 21, 1991, the date of the Act. Ramsey
v. Department of the Navy, EEOC Request No. 05940658 (July 27, 1995).