Charles Allen v. U.S. Postal Service
01990101
May 22, 2002
Charles Allen,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01990101
Agency No. 1B-065-1006-94
Hearing No. 160-94-8650X
DECISION
Pursuant to 29 C.F.R. § 1614.405, the Commission accepts the complainant’s
appeal from the agency’s final decision (FAD) in the above-entitled
matter. For the reasons stated herein, the agency’s FAD is reversed.
In September 1993, the agency issued complainant a Notice of Removal
effective October 8, 1993, for failure to be regular in attendance.<1>
Complainant, believing he was a victim of discrimination, sought EEO
counseling and, subsequently, filed a complaint. He alleged that the
agency discriminated against him based on disability (cervical and lumbar
disc syndrome and anxiety) and reprisal (prior Rehabilitation Act-related
activity) when his employment was terminated. Specifically, complainant
claimed that the agency treated him disparately, and failed to provide a
reasonable accommodation for his disability, which caused his absences,
when it removed him.
At the conclusion of the investigation, complainant received a copy of the
investigative report and requested a hearing before an EEOC Administrative
Judge (AJ). The AJ issued a decision after a hearing, finding that the
agency did fail to provide a reasonable accommodation for complainant’s
disabilities, but that the agency did not retaliate against complainant.
The agency issued a FAD finding no discrimination on both bases.
An appeal by complainant followed. The Commission rendered a decision
reversing the agency’s finding of no discrimination based on disability,
affirming its finding of no retaliation, and ordering appropriate
remedies. Allen v. U.S. Postal Service, EEOC Appeal No. 01954091
(March 27, 1997). The agency initiated a request for reconsideration,
which was denied; however, the Commission reconsidered the previous
decision on its own motion. Allen v. U.S. Postal Service, EEOC Request
No. 05970672 (June 11, 1998). The previous decision was modified, in
that, the agency was ordered to conduct a supplemental investigation
regarding complainant’s entitlement to compensatory damages. Id.
In conducting a supplemental investigation, the agency was directed to
allow complainant sixty (60) days to submit evidence in support of his
claim for compensatory damages. Id.
In a FAD dated September 9, 1998, the agency concluded that complainant
was not entitled to compensatory damages because he failed to provide
evidence to support such an entitlement by the specified date.
This appeal followed. Complainant asserted that he, through his
representative, requested a 30-day extension to submit the appropriate
evidence but the agency failed to respond. The agency stated that it
did not receive the extension request and, even if it had, complainant
should have assumed that the original deadline stood when he did not
receive an agency response. We note that, on appeal, complainant failed
to submit evidence to support his entitlement to compensatory damages,
but we will render a decision based on the record as it currently exists.
Complainant began his employment with the agency in 1969 as a
Mail-handler. He performed the full duties of a Mail-handler until
1982, when he requested several medical leaves of absence. The leaves
of absence were for behavior consisting of obsessive rituals, temper
outbursts, and severe anxiety, which complainant’s physician (P1)
diagnosed as “Organic Personality Syndrome.” P1 recommended that the
agency place complainant on permanent light duty, in a position “that
is routine, simple, with little interpersonal involvement, and minimum
stress.” In addition, P1 noted that complainant suffered an injury
to his skull and brain tissue in a 1956 car accident, and as a result,
complainant suffered with a seizure disorder and emotional problems.
Based on the record, the agency allowed complainant to work within the
medical restrictions recommended by P1.
There was no further mention of complainant’s mental impairment
until 1988, when the agency attempted to change his work schedule.
Complainant’s physician at the time, reiterated that “[complainant’s]
medical condition demands a minimum of stress be put upon him.”
Consequently, the agency returned complainant to his former work schedule.
In February 1989, complainant suffered an on-the-job injury, which another
of complainant’s physicians diagnosed as chronic cervical and lumbar
syndrome and which prompted various medical restrictions. The agency
allowed complainant to work within his restrictions until early 1993,
when it assigned complainant duties that he asserted aggravated his
physical impairment. In 1993, complainant missed work on a number of
occasions. Complainant stated that his absences were primarily due to
his chronic cervical and lumbar syndrome.
When discrimination is found, the agency must provide the complainant
with a remedy that constitutes full, make-whole relief to restore the
complainant as nearly as possible to the position he would have occupied
absent the discrimination. See, e.g., Franks v. Bowman Transportation
Co., 424 U.S. 747, 764 (1976); Albemarle Paper Co. v. Moody, 422 U.S. 405,
418-19 (1975).
Section 102(a) of the Civil Rights Act of 1991 (the CRA 1991), Stat. 1071,
Pub. L. No. 102-166, codified as 42 U.S.C. § 1981a, authorizes an award of
compensatory damages as part of the “make whole” relief for intentional
discrimination. Section 1981a(b)(2) indicates that compensatory
damages do not include back pay, interest on back pay, or any other
type of equitable relief. Section 1981a(b)(3) limits the total amount
of compensatory damages that may be awarded to each complaining party
for future pecuniary losses, emotional pain, suffering, inconvenience,
mental anguish, loss of enjoyment of life, and other nonpecuniary losses,
according to the number of persons employed by the respondent employer.
The limit for an employer with more than 500 employees, such as the
agency, is $300,000. 42 U.S.C. § 1981a(b)(3)(D).
Compensatory damages, however, are further limited to the amount
necessary to compensate an injured party for actual harm caused by the
agency’s discriminatory action, even if the harm is intangible. Damiano
v. U.S. Postal Service, EEOC Request No. 05980311 (February 26, 1999).
Compensatory damages should consider the extent, nature, and severity
of the harm and the length of time the injured party endured the harm.
Id.; 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.
Complainant submitted evidence, through physicians’ statements and
his own affidavits and testimony, that he suffered anxiety, stress,
and obsessive compulsive behavior for at least a year as a result of
the agency’s failure to accommodate his disabilities. He, however,
noted that the aforementioned symptoms were due to an exacerbation
of a condition that dates back to the late 1950s. His physicians’
certificates corroborated his psychological history.
The Commission finds that $2,000 is an appropriate amount as complainant
presented sufficient evidence to establish that the agency’s actions were
a contributing factor to his anxiety, stress, and obsessive compulsive
behavior.<2> See, e.g., Lawrence v. U.S. Postal Service, EEOC Appeal
No. 01952288 (April 18, 1996) ($3,000 in non-pecuniary damages where
complainant presented primarily nonmedical evidence that she was
irritable, experienced anxiety attacks, and was shunned by coworkers);
Benson v. U.S. Dep’t of Agriculture, EEOC Appeal No. 01952854 (June
27, 1996) ($5,000 in non-pecuniary damages where the complainant,
his relatives, and coworkers asserted that complainant experienced
embarrassment and humiliation due to various incidents of discrimination);
Samuel v. U.S. Postal Service, EEOC Appeal No. 01A00900 (March 6, 2002)
($7,500 in non-pecuniary damages where the Commission found that the
agency failed to provide complainant a reasonable accommodation when it
removed him from employment, which resulted in complainant experiencing
anxiety and stress.)
We note that there is insufficient evidence in the record to render
a determination on pecuniary damages. Consequently, we find that
complainant is not entitled to pecuniary damages.
CONCLUSION
After a careful review of the record, including complainant’s contentions
on appeal, the agency’s response, and arguments and evidence not
specifically addressed in this decision, we REVERSE the agency’s finding
that complainant is not entitled to nonpecuniary compensatory damages.
The agency is instructed to comply with the order as set forth below.
ORDER
The agency shall pay complainant non-pecuniary compensatory damages
in the amount of $2,000 within sixty (60) calendar days of the date of
this decision.
The agency is further directed to submit a report of compliance, as
provided in the paragraph entitled “Implementation of the Commission’s
Decision.” The report shall include supporting documentation of the
agency’s actions in compliance with this order.
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 (M0900)
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
May 22, 2002
__________________
Date
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days after it was mailed. I certify
that this decision was mailed to complainant, complainant’s representative
(if applicable), and the agency on:
__________________
Date
_____________________________
Equal Opportunity Assistant
1The removal was later reduced to a fourteen-day suspension through the
negotiated grievance process established by the agency and representative
union.
2See Butler v. U.S. Dep’t of Agriculture, EEOC Appeal No. 01971729
(April 15, 1999).
