0120083407
12-23-2008
Percy J. Brown, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Percy J. Brown,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 0120083407
Agency No. 1H-361-0011-04
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts complainant's
appeal from the agency's July 3, 2008 final agency decision1
(FAD) concerning his equal employment opportunity (EEO) complaint
alleging 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 record reveals that complainant was hired by the agency in
December 2003 to serve as a temporary appointment as a casual employee.
Complainant was reappointed as a casual employee in January 2004 and
again in March 2004. His third appointment was to end in June 2004,
when he was scheduled to take a six-day break, then return to work as
a Casual Mailhandler on June 11, 2004.
In May 2004, complainant applied and tested for the following career
positions: Mark-Up Clerk, Automated Mail Handler, Clerk Carrier, Rural
Carrier, and Flat Sorter Machine Operator. Complainant was called
to interview for a Rural Carrier Associate position. Additionally, he
underwent a finger print check, drug testing, and a driver's record check.
On May 28, 2004, complainant was informed that he needed to undergo a
physical examination with an orthopedic surgeon on June 8, 2004. On June
11, 2004, complainant reported to work as a Casual Mailhandler as ordered.
The Manager, Distribution Operations, met complainant at the time clock
and informed him that the Orthopedic Surgeon stated that complainant
could not stand or walk for more than four hours, and accordingly, could
not perform either the Rural Carrier Associate position or the Casual
Mailhandler position. On June 11, 2004, complainant was terminated
from agency employment for "Failure to meet Medical Restrictions for
the position in which selected, i.e, Medical Restrictions indicate you
cannot stand/walk for over four (4) hours per day."
Complainant filed a complaint in which he alleged that the agency
discriminated against him on the basis of disability in violation of
Section 501 of the Rehabilitation Act of 1973, as amended, 29 U.S.C. �
791 et seq. The agency's final decision found that complainant was
not subjected to discrimination. Complainant appealed the agency's
final decision to the Commission, which reversed the agency's finding
of no discrimination, and found that complainant had established, by a
preponderance of the evidence, that he had been subjected to disability
discrimination. Percy J. Brown v. United States Postal Service, EEOC
Appeal No. 0120054928 (June 27, 2007).
As relief, the order specified, in pertinent part, that:
1. Within thirty (30) days of receipt of this decision, the agency shall
offer complainant reinstatement to his position of Automation Clerk
or the Mailhandler position, or a substantially equivalent position,
retroactive to June 11, 2004.
2. The agency shall determine the appropriate amount of back pay, with
interest, and other benefits due complainant, pursuant to 29 C.F.R. �
1614.501, no later than sixty (60) calendar days after the date this
decision becomes final. For the purposes of calculating back pay, the
agency shall assume that complainant worked at least the next appointment
period; and
3. Within thirty (30) days of receipt of this decision, the agency
shall conduct a supplemental investigation on the issue of complainant's
entitlement to compensatory damages and shall afford him an opportunity
to establish a causal relationship between the prohibited termination
and any pecuniary or non-pecuniary losses.
On August 4, 2007 and September 17, 2007, complainant submitted a Petition
for Clarification/Enforcement. Complainant stated that the agency failed
to place him back into a substantially equivalent position. He alleged
that he should have been placed into the career status Rural Carrier
position for which he applied, and not the Casual Clerk position he was
offered by the agency following receipt of the Commission's decision.
Furthermore, complainant stated that the agency has not yet investigated
his entitlement to compensatory damages in violation of the order,
and did not properly calculate his back pay award.
As part of its obligation to provide make whole relief, on or about
August 2, 2007, the agency offered complainant the position of Clerk
Casual, which it claims is the position he occupied at the time of his
termination. The agency attached a position description which described
the functional purpose of the position as follows:
Performs mail handling, mail processing, mail delivers, mail collection,
mail transportation and custodial functions, or a combination of such
duties on a supplemental basis.
On August 8, 2007, complainant declined the position, stating that it
was further evidence of retaliation and violated the Vietnam Era Veterans
Readjustment Assistance Act.
The Commission noted that according to the record, on June 11, 2004,
complainant occupied a Casual Mailhandler position. The Casual
Mailhandler position description describes the functional purpose
of the position as one which loads, unloads, and moves bulk mail, and
performs other duties incidental in the movement and processing of mail.
Because complainant was no longer working in the Clerk position at the
time of the termination, we found the need to clarify our prior order,
and ordered the agency to place complainant into the Casual Mailhandler
position.
With respect to complainant's argument that he was entitled to the
Rural Carrier Associate position for which he applied, we disagreed.
The matter which was adjudicated as the subject of the instant complaint
was complainant's termination from his Casual Mailhandler position.
Complainant did not establish that he was in fact selected for the
position of Rural Carrier Associate, only that his name was reached on a
hiring register for consideration of employment. The letter he received
from the agency asking him to appear for an interview specifically notes,
"This is not an offer of employment."
We further noted that in October 2007, complainant submitted documentation
indicating that he was in receipt of the agency back pay award including
interest. Complainant stated that the award falls short of what he is
owed. After a review of the record, we found that the agency complied
with our order with respect to back pay. We found, however, no evidence
that the agency conducted a supplementary investigation into complainant's
entitlement to compensatory damages. On remand, the agency was ordered
to offer complainant reinstatement to his position of Casual Mailhandler,
or a substantially equivalent position, retroactive to June 11, 2004;
and conduct a supplemental investigation on the issue of complainant's
entitlement to compensatory damages and afford him an opportunity to
establish a causal relationship between the prohibited termination and
any pecuniary or non-pecuniary losses. Percy J. Brown v. United States
Postal Service, EEOC Petition No. 0420070021 (March 5, 2008).
On March 17, 2008, the agency sent complainant a letter requesting
him to provide information describing his requested resolution of his
compensatory damages claim and to provide evidence of such damages.
Attached to this letter, the agency included a blank form entitled "EEO
Investigative Affidavit for Compensatory Damages" for complainant to
provide testimony and evidence regarding his request for compensatory
damages.
Complainant mailed his completed affidavit and supporting documentation
regarding his compensatory damages to the agency. In his affidavit,
complainant requests $1,455,000.00 in compensatory damages. Specifically,
complainant states he suffered bouts of depression, withdrawal and severe
headaches following his termination. Complainant further states that
during the relevant time, he lost his wife, his home, and his martial
arts business.
On July 3, 2008, the agency issued the FAD which is the subject of
the instant appeal. Therein, the agency stated that following a
supplemental investigation, it was determined that complainant had
failed to establish his entitlement to compensatory damages. Initially,
the agency determined that complainant did not provide any evidence of
pecuniary damages. The agency noted that in reply to Question 19 of the
affidavit, which stated, "Please explain why you feel you are entitled
to compensatory damages in this matter, and, provide any documentation
that would support your claim for compensatory damages," complainant
stated that he was dependent on the job to pay bills and to continue
his martial arts program for disadvantaged children. The agency further
noted that complainant stated that he lost his home, property, business,
and the ability to advance as a martial arts instructor as a result of the
discriminatory conduct. The agency stated that when queried on whether
he had received psychological or psychiatric counseling, complainant
responded that he sought counseling for depression, but his physician
suspended treatment for lack of payment. Specifically, complainant
stated, "Extreme depression led me to seek psychiatric help. My doctor
suspended my treatment after I was unable to make payments for my visits.
I was referred to the County's Mental Health facilities where the waiting
period for an appointment was several months."
The agency further noted that complainant alleged that he had headaches,
depression, and lack of energy following his termination, and that
he obtained psychological counseling through his church affiliation.
Complainant stated that he relies on the over-the-counter drugs to help
him with his medical issues.
With respect to non-pecuniary damages, the agency noted that according
to complainant, he was harmed by the break-up of his marriage and "while
looking for work, my water, lights and gas were turned off and my car
needed work." Complainant further stated, "Extreme depression developed
with my being forced to live in in-humane conditions." The agency
noted that complainant's ex-wife stated in her affidavit that following
his termination, complainant "became withdrawn with me." The ex-wife
further stated, "It didn't matter how much I worked and tried to help,
it just wasn't enough. Our bills stacked high on the table, business
gone, home gone we soon grew too far apart to pull it back together.
I understand the distraught he was going through that he couldn't provide
and keep his home and family together, but there was nothing further I
could do to help."
The agency determined that the record did not contain any evidence
showing the severity of complainant's emotional suffering or how it
could be contributed to management's actions. Thus, the agency found
complainant was not entitled to an award of compensatory damages.
Moreover, the agency determined that based on the evidence in the
record, complainant had been provided a position and a back pay award,
and therefore was not entitled to any further compensation.
On appeal, complainant argues he "was not permitted to submit additional
medical documentation from his own physicians." In that regard, he
submits a statement from a podiatrist which contradicts the findings of
the agency's orthopedist." Complainant further argues that the agency
violated the Vietnam Era Veterans Readjustment Assistance Act when he
was denied the position of Rural Carrier Associate "after he had passed
the exam and was selected for that position and being terminated because
he was disabled." In support of his assertions, complainant submits a
copy of his podiatrist's letter dated January 13, 2005. Therein, the
podiatrist stated that while complainant has symptomatic biomechanical
foot deformities, he was capable of performing physical activities
without limitations.
To receive an award of compensatory damages, complainant must demonstrate
that he has been harmed as a result of the agency's discriminatory action;
the extent, nature and severity of the harm; and the duration or expected
duration of the harm. See Rivera v. Department of the Navy, EEOC Appeal
No. 01934157 (July 22, 1994), request for reconsideration denied, EEOC
Request No. 05940927 (December 11, 1995); Compensatory and Punitive
Damages Available Under Section 102 of the Civil Rights Act of 1991,
EEOC Notice No. 915.002 at 11-12, 14 (July 14, 1992).
An award of compensatory damages for non-pecuniary losses, including
emotional harm, should reflect the extent to which the respondent
directly or proximately caused the harm, and the extent to which other
factors also caused the harm. The Commission has held that evidence
from a health care provider is not a mandatory perquisite for recovery of
compensatory damages. See Carpenter v. Department of Agriculture, EEOC
Appeal No. 01945652 (July 17, 1995). The absence of supporting evidence
may affect the amount of damages deemed appropriate in specific cases.
See Lawrence v. USPS, EEOC Appeal No. 01952288 (April 18, 1996).
The Commission finds, with regard to his claim for pecuniary damages,
that complainant's submission does not include sufficient documentation
or other objective evidence in support of his claim. Thus, we find
that the agency properly determined that complainant was not entitled
to pecuniary damages. However, we find that the agency incorrectly
determined that complainant failed to provide sufficient evidence to
support an award of non-pecuniary compensatory damages. Specifically,
we note that the record reflects that complainant averred he suffered
bouts of depression, withdrawal and severe headaches following his
termination. After considering the nature of the agency's discriminatory
action, in conjunction with complainant's affidavit and the affidavit
of his ex-wife, we find that complainant is entitled to $10,000 in
compensatory damages. We note that this award is consistent with
the amounts awarded in similar cases. See, e.g., Lee v. United States
Postal Service, EEOC Appeal No. 0120054893 (February 15, 2007); Hamilton
v. Unites States Postal Service, EEOC Appeal No. 01A30899 (March 14,
2004).
Based on a thorough review of the record and the parties' contentions on
appeal, including those not specifically addressed herein, the Commission
MODIFIES the agency's final decision awarding compensatory damages.
ORDER
The agency is ordered to take the following remedial action:
Within sixty (60) calendar days of the date this decision becomes final,
the agency shall pay complainant in the amount of $10,000 in non-pecuniary
damages.
Proof of payment of the compensatory damages must be sent to the
Compliance Officer as referenced below.
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 (K0408)
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 (M0408)
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 (S0408)
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 (Z1008)
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 from the Court that
the Court appoint an attorney to represent you and that the Court also
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 with
the Court 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
December 23, 2008
Date
1 The agency first issued the FAD on June 19, 2008, mailing a copy to
complainant's address of record. This mailing was returned unclaimed.
The agency then re-issued the FAD on July 3, 2008, mailing a copy to a
second address of record for complainant. This second mailing was duly
received by complainant.
??
??
??
??
2
0120083407
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
8
0120083407