01a45271
01-21-2005
Thomas G. Fullman, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Thomas G. Fullman v. United States Postal Service
01A45271
January 21, 2005
.
Thomas G. Fullman,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A45271
Agency No. 1-H-351-0073-99
Hearing No. 130-A0-8141X
DECISION
Complainant timely initiated an appeal from an agency final decision
concerning his complaint of unlawful employment discrimination in
violation of Title VII of the Civil Rights Act of 1964 (Title VII),
as amended, 42 U.S.C. � 2000e et seq. and the Age Discrimination in
Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq.
The appeal is accepted pursuant to 29 C.F.R. � 1614.405.
The record reveals that during the relevant time, complainant was
employed as a Human Resources Specialist at the agency's Birmingham,
Alabama facility. Complainant sought EEO counseling and subsequently
filed a formal complaint on August 16, 1999. Therein, complainant claimed
that he was discriminated against on the bases of race (Caucasian), age
(51 years old), and in reprisal for prior EEO activity when he was not
selected for the position of Labor Relations Specialist on July 1, 1999.
Complainant requested a hearing before an EEOC Administrative Judge (AJ),
who issued a summary judgment determination, finding no discrimination.
Complainant filed an appeal from the e agency's order, which adopted
the AJ's determination. On appeal, the Commission reversed the
agency's final order, and remanded the case for a hearing. Fullman
v. U.S. Postal Service, EEOC Appeal No. 01A06044 (August 15, 2002),
The record reflects that complainant withdrew his request for a hearing,
and the agency issued a final action, on November 4, 2002, finding
no discrimination. On appeal, the Commission reversed the agency's
finding of no discrimination, and ordered the agency to undertake various
measures of remedial relief, including payment of compensatory damages.
Fullman v. U.S. Postal Service, EEOC Appeal No. 01A31036 (March 18,
2004).<1>
In compliance with the Commission's order, the agency obtained
affidavits and a physician statement from complainant describing the
nature and duration of the harm he suffered as a consequence of his
discriminatory non-selection in July 1999. In a final decision dated
June 25, 2004, the agency determined that complainant's evidence showed
that he experienced depression as a consequence of his non-selection,
requiring medication. However, the agency determined that complainant
did not provide a detailed description of his symptoms, and that the
on-going nature of the depression appeared to be more a consequence of
the stress from pursuing the non-selection in the EEO process, which
is not compensable. Based on the symptoms which could be associated
with the non-selection, i.e., embarrassment, humiliation, frustration,
irritability, sleep problems, feelings of stress, and martial problems,
the agency determined that complainant was entitled to an award of
$10,000.00 in compensatory damages.
On appeal, complainant argues that the agency improperly determined that
his on-going stress was not compensable. In particular, complainant
argues that he became �obsessed� with his discriminatory non-selection,
and that for more than four years, he suffered emotionally. Complainant
asserts that the agency failed to consider the martial strife that
his emotional disturbance created, or his despondent demeanor in the
workplace, as attested to by a close co-worker. Complainant asserts
that he still experiences bad feelings because of his non-selection.
Complainant argues that his award should be substantially increased,
citing to cases in which the Commission made compensatory damage awards
in the amounts of $80,000.00 to $150,000.00.
To receive an award of compensatory damages, a complainant must
demonstrate that he or she 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. Rivera v. Department of
the Navy, EEOC Appeal No. 01934157 (July 22, 1994), req. for recons. den.,
EEOC Request No. 05940927 (December 11, 1995); Enforcement Guidance:
Compensatory and Punitive Damages Available Under Section 102 of the Civil
Rights Act of 1991, EEOC Notice No. 915.002 (July 14, 1992), at 11-12, 14.
Compensatory damages may be awarded for the past pecuniary losses,
future pecuniary losses, and non-pecuniary losses which are directly or
proximately caused by the agency's discriminatory conduct. EEOC Notice
No. 915.002 at 8. Objective evidence of compensatory damages can include
statements from the complainant concerning his or her emotional pain or
suffering, inconvenience, mental anguish, loss of enjoyment of life,
injury to professional standing, injury to character or reputation,
injury to credit standing, loss of health, and any other nonpecuniary
losses that are incurred as a result of the discriminatory conduct.
Statements from others, including family members, friends, health
care providers, other counselors (including clergy) could address the
outward manifestations or physical consequences of emotional distress,
including sleeplessness, anxiety, stress, depression, marital strain,
humiliation, emotional distress, loss of self-esteem, excessive fatigue,
or a nervous breakdown. See Lawrence v. United States Postal Service,
EEOC Appeal No. 01952288 (April 18, 1996), citing Carle v. Department
of the Navy, EEOC Appeal No. 01922369 (January 5, 1993). A proper
award of compensatory damages must satisfy two goals: (1) It must
not be �monstrously excessive;� and (2) It should be consistent with
awards in similar cases. See Jackson & Beaner v. U.S. Postal Service,
EEOC Appeal Nos. 01972555 & 01972556 (April 15, 1999).
After careful review, we find that an award of compensatory damages is
appropriate in this case, as complainant presented sufficient evidence to
establish that the agency's actions caused emotional distress. We have
also carefully considered complainant's arguments that the $10,000.00
awarded by the agency should be substantially increased, because of the
severity of his depression, which caused him to break-down and cry in
the presence of his physician, as well as the long-term �obsession,� and
attendant emotional problems he suffered. However, we find that the
affidavit of complainant's wife, as well as his physician statement,
and complainant's own statements, each indicate that the duration
of his emotional distress was fueled by the multiple frustrations he
encountered in his pursuit of the non-selection in the EEO process,
which is not compensable. See Appleby v. Department of the Army, EEOC
Appeal No. 01933897 (March 4, 1994).
Moreover, the Commission has awarded the following amounts of
compensatory damages in non-selection cases involving emotional harm of
a nature and severity commensurate to that experienced by complainant:
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 and Human Services, EEOC Appeal No. 01995560 (February 21,
2002)($8,000.00 in non-pecuniary damages where complainant received
a fully successful performance rating and he and a friend asserted
that he experienced mental anguish, sleeplessness, anxiety, stress,
depression, and humiliation); Butler v. Department of Agriculture, EEOC
Appeal No. 01971729 (April 15, 1999)($7,500.00 in non-pecuniary damages
based on complainant's testimony regarding his emotional distress);
and Benson v. Department of Agriculture, EEOC Appeal No. 01952854
(June 27, 1996)($5,000.00 in non-pecuniary damages where appellant was
denied promotional opportunities and consequently experienced stress,
skin rashes, withdrawal, and isolation). Therefore, we find that the
agency's award of $10,000.00 in this case is comparable with compensatory
damage awards in similar non-selection cases.
Accordingly, for the reasons set forth above, we AFFIRM the agency's
award of $10,000.00 for compensatory damages in this case.
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
January 21, 2005
__________________
Date
1The Commission also ordered retroactive reinstatement to the position
at issue, with back pay, including interest and benefits, and attorney's
fees. Additionally, the Commission ordered EEO training, and discipline
of the responsible agency officials, if appropriate, and posting a notice
acknowledging the discrimination.