01A12136
03-25-2002
Lazaro R. Rodriguez, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, (Southeast Area) Agency.
Lazaro R. Rodriguez v. United States Postal Service
01A12136
March 25, 2002
.
Lazaro R. Rodriguez,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
(Southeast Area)
Agency.
Appeal No. 01A12136
Agency No. 4H-330-1094-96
DECISION
Complainant timely initiated an appeal from a final agency decision (FAD)
concerning his claim for compensatory damages. Complainant's claim for
compensatory damages arose out of 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., filed on December 12, 1995.
Initially, the agency found that complainant was not discriminated
against on any of his claimed bases.<1> The Commission, however, issued
a decision reversing that agency decision and finding that the agency
discriminated against complainant on the basis of reprisal when he did
not receive an Exceptional Individual Performance Award. See Rodriguez
v. United States Postal Service, EEOC Appeal No. 01971638 (November 30,
1999). Subsequently, complainant was afforded the opportunity to submit a
claim for compensatory damages. After his submission, the agency issued
a FAD on January 19, 2001, finding that complainant failed to prove any
economic or emotional harm. Complainant herein appeals that decision.
The appeal is accepted pursuant to 29 C.F.R. � 1614.405. For the
following reasons, the Commission affirms the agency's final decision.
The facts and background are sufficiently presented in EEOC Appeal
No. 01971638, and will not be repeated herein. The sole issue before
the Commission is whether the denial of compensatory damages by the
agency was appropriate.
ANALYSIS
When discrimination is found, the agency must provide complainant with
an equitable remedy that constitutes full, make-whole relief to restore
her as nearly as possible to the position she 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); and Wan v. United States Postal Service, EEOC Appeal No. 01995204
(July 11, 2001). The Commission recognizes that not all harms done are
amenable to precise quantification; the burden of limiting the remedy,
however, rests with the defendant employer. Smallwood v. United Airlines,
Inc., 728 F.2d 614, 616 n. 5 (4th Cir.), cert. denied, 469 U.S. 832
(1984).
In West v. Gibson, 119 S.Ct. 1906 (1999), the Supreme Court held that
Congress afforded the Commission the authority to award compensatory
damages in the administrative process. Section 102(a) of the Civil
Rights Act of 1991 (the 1991 CRA), codified as 42 U.S.C. � 1981a,
authorizes an award of compensatory damages as part of the "make whole"
relief for intentional discrimination in violation of Title VII of the
Civil Rights Act of 1964, as amended. Section 1981a(b)(2) indicates
that compensatory damages do not include back pay, interest on back
pay, or any other type of equitable relief authorized by Title VII.
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 non-pecuniary 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 herein,
is $300,000. 42 U.S.C. � 1981a(b)(3)(D).
If a complainant alleges that he is entitled to compensatory damages
and the agency or Commission enters a finding of discrimination, the
complainant is given an opportunity to submit evidence establishing his
claim. 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); 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 (Guidance).
Further, to receive an award of compensatory damages, the complainant
must establish a nexus between the harm and the discrimination found.
See Jacobs v. Department of the Army, EEOC Appeal No. 01982989 (August
30, 2001).
Complainant herein did not demonstrate with specificity that he was
harmed as a result of the agency's discriminatory action. With regard
to emotional harm, complainant offers no evidence of the extent, nature,
and severity of the harm caused by the October 4, 1995 discrimination.
We note, however, that complainant contends that he should be compensated
for an asthma attack and heart trouble that arose on November 3, 1998,
some three years after the event in question. Complainant fails to
demonstrate that the events of November 3, 1998, were proximately or
directly caused by the agency's discriminatory behavior. Thus, there
can be no recovery for non-pecuniary damages herein.
With respect to pecuniary losses, complainant seeks reimbursement for pay
he lost because he retired five years earlier than planned to avoid being
in the discriminatory atmosphere of the agency. We construe this as a
contention of constructive discharge, which is not properly before us,
given that complainant is raising the issue for the first time on appeal.
Complainant is advised that if he wishes to pursue, through the EEO
process, this additional claim raised for the first time on appeal,
he shall initiate contact with an EEO Counselor within 15 days after
he receives this decision. The Commission advises the agency that if
complainant seeks EEO counseling regarding the new claims within the
above 15-day period, the date complainant on which complainant raised
these claims with the agency shall be deemed to be the date of the initial
EEO contact, unless he previously contacted a counselor regarding these
matters, in which case the earlier date would serve as the EEO Counselor
contact date. Cf. Alexander J. Qatsha v. Department of the Navy, EEOC
Request No. 05970201 (January 16, 1998).
Complainant further seeks to be reimbursed for expenses associated
with his medical trauma on November 3, 1998. Again, as noted above,
complainant's failure to establish a nexus between the asthma attack
and heart trauma and the prohibited reprisal render this claim
non-compensable.
Lastly, the record indicates that complainant's attorney submitted
records to the agency for payment, in association with his success in
the Commission's previous decision noted above. Complainant's attorney
is still entitled to amounts agreed to by he and the agency for success
under the previous decision, despite the outcome of the compensatory
damages award. Based on the foregoing, complainant's claim for
compensatory damages is denied.
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
March 25, 2002
__________________
Date
1 Complainant's original complaint alleged discrimination on the bases
of national origin (Cuban), sex (male), reprisal (protected EEO activity),
and age (over 40).