01A30313
12-12-2003
Mike Amaro, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Mike Amaro v. United States Postal Service
01A30313
December 12, 2003
.
Mike Amaro,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A30313
Agency No. 4G-780-0196-98
DECISION
INTRODUCTION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts the complainant's
appeal in the above-entitled matter. The issue on appeal is whether
complainant has established that he is entitled to remedies beyond those
awarded by the agency.
BACKGROUND
Believing that he was a victim of discrimination, in May 1998, complainant
filed an EEO complaint alleging that the agency discriminated against
him based on age (over 40) and reprisal for prior EEO activity when
it, on January 16, 1998 (1) rated complainant as �unacceptable� on his
1997 merit evaluation and (2) issued complainant a proposed letter of
warning in lieu of a 14-day suspension. The complaint was investigated
and complainant was informed of his right to elect a hearing before an
EEOC administrative judge or an immediate final agency decision (FAD).
Complainant failed to make an election. The agency issued a FAD finding
no discrimination based on age or reprisal. Complainant filed an appeal
with the Commission, which was docketed as EEOC Appeal No. 01994367.
In Amaro v. U.S. Postal Service, EEOC Appeal No. 01994367 (February
5, 2002), the Commission found no discrimination based on age but
found retaliation. The Commission ordered the agency to conduct a
supplemental investigation on compensatory damages, and awarded other
appropriate remedies.
During the supplemental investigation, complainant requested $175,000.00
in non-pecuniary, compensatory damages. He attributed $50,000.00 to
physical and mental harm, $75,000.00 to marital strain and strain to
personal relationships, and $50,000.00 for injury to his reputation.
In addition, complainant requested $12,345.00 for lost income, $39,800.00
for lost promotional opportunities due to the unfavorable evaluation,
$2,107.80 for prescription medication, and attorney's fees. Complainant
further stated that he used eight weeks of sick leave in May 1997 and
an additional week of annual leave to prepare the instant complaint.
Complainant noted that the actions at issue did not happen in a vacuum
but were part of harassment and that, when the actions at issue occurred,
he was attempting to wean himself off of anti-depressant and anti-anxiety
medication.
Following the supplemental investigation, the agency issued a FAD awarding
complainant $2,000.00 in non-pecuniary, compensatory damages. In its
FAD, also the agency found that complainant is entitled to compensatory
damages related to claims (1) and (2) only and not every action by the
responsible management official, complainant's receipts for medication are
not dated in 1998 so it appears that they are not related to the instant
complaint, only what complainant paid for the medication is recoverable,
complainant failed to show that his leave usage was related to claims (1)
and (2), it is illogical that claims (1) and (2) would require the use
of eight weeks of leave, complainant should have requested official time
rather than leave to work on his EEO complaint, and the postage receipts
submitted by complainant predate the filing of the complaint at issue.
This appeal followed.
On appeal, complainant stated that the agency began subjecting him to
a hostile work environment in 1997 and that he is entitled to damages
for incidents that occurred prior to and culminated into the tangible
employment actions at issue. Complainant stated that he was diagnosed
with Acute Situational Anxiety in 1997 and with Depression in 1998.
Complainant alleged that the agency caused his condition to progress
in such a manner. Complainant stated that he experienced nausea,
weight gain and loss, diarrhea, tachycardia chest pain, insomnia, lack
of concentration, irritability, loss of enjoyment in life, and that
he was prescribed anti-depressants. Further, complainant stated that
he will require an anti-depressant, Serzone, for the rest of his life.
Complainant acknowledged that he was on Serzone prior to the actions in
claims (1) and (2).
Complainant provided a declaration from a physician assistant (PA)
who stated that he treats complainant for Depression and its physical
manifestations. PA opined, due to the fact that complainant has been
on anti-depressants for so long, he will require life-long treatment.
PA attributed the Depression to work-related stressors explaining that
complainant previously sought very little medical treatment prior to 1997.
Complainant also provided a declaration from his wife who corroborated
complainant's statements and added that complainant withdrew from social
contact and lost interest in daily activities. His wife further stated
that they suffered marital strain.
In addition, complainant provided medical documentation dated June 6, 1997
citing Acute Situational Anxiety and prescribing Serzone. In addition,
complainant provided documentation dated July 30, 1997, October 17, 1997,
February 11, 1999, and March 16, 1999 related to Situational Anxiety
or Depression. The medical documentation of October 17 stated that
complainant could stop the Serzone in two weeks and the documentation of
February 11 stated that complainant should re-start the Serzone treatment.
The record also contained documentation for medical appointments for
allergies, back strain and other matters, as well as bills for all of
his visits with PA.
Complainant also included charts indicating the salaries for different
grade levels and calculated the loss he believed he suffered. Complainant
submitted postal receipts dated in June, July and September 1997 as well
as pharmacy receipts showing that he purchased Serzone in June through
October 1997 and again in 1999 and 2000.
The agency responded stating that complainant's appeal is untimely.
The agency stated that assuming the appeal is timely, complainant
failed to provide all available, relevant evidence at the time of the
supplemental investigation, complainant previously did not raise the
issue of a hostile work environment, and the declarations of PA and
complainant's wife are questionable. In addition, the agency stated
that complainant failed to support his request for lost promotional
opportunities. The agency stated that complainant did not show that
anyone associated with the promotion process relied on the merit
evaluation in claim (1) or that he was better qualified than those who
applied. Also, the agency stated that complainant failed to show that
its actions would have any long term effect on him. Finally, the agency
reiterated previous concerns regarding the evidence complainant submitted.
ANALYSIS AND FINDINGS
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). In the Federal sector, the agency's efforts
in this regard should include compensatory damages and equitable relief,
where appropriate.
Compensatory Damages
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 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, is $300,000.
42 U.S.C. � 1981a(b)(3)(D).
Non-pecuniary damages
Compensatory damages are 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.; Enforcement
Guidance: Compensatory and Punitive Damages Available Under Section
102 of the Civil Rights Act of 1991 (Enforcement Guidance), EEOC Notice
No. 915.002 (July 14, 1992), at 11-12, 14. The Commission notes that for
a proper award of non-pecuniary compensatory damages, the amount of the
award should not be "monstrously excessive" standing alone, should not
be the product of passion or prejudice, and should be consistent with
the amount awarded in similar cases. See Ward-Jenkins v. Department of
the Interior, EEOC Appeal No. 01961483 (March 4, 1999) (citing Cygnar
v. City of Chicago, 865 F. 2d 827, 848 (7th Cir. 1989)).
Complainant submitted evidence, through his own statement and that
of his wife and of a physician assistant, of the emotional distress
caused by the agency's action. Complainant stated that he experienced
anxiety, depression, nausea, weight gain and loss, diarrhea, tachycardia
chest pain, insomnia, lack of concentration, irritability, loss of
enjoyment in life, an injured reputation and that he was prescribed
anti-depressants that he will require for the rest of his life.
Complainant's wife corroborated his statements. She added that
complainant withdrew socially and that they experienced marital strain.
Complainant's physician assistant agreed that complainant would remain
on an anti-depressant for his lifetime.
Based on the record, the Commission finds the agency's decision to award
$2,000.00 in non-pecuniary damages insufficient to remedy the harm that
complainant alleged. We find that complainant did suffer harm, however,
the evidence complainant submitted is not all related to claims (1) and
(2). The decision in EEOC Appeal No. 01994367 found disparate treatment
specifically as to claims (1) and (2) solely. Complainant submitted
evidence that predated the actions alleged in claims (1) and (2) as
well as other evidence that he failed to show was causally connected.
Taking into account the extent, nature, severity and duration of the
harm suffered, we find that $3,500.00 is an appropriate amount and that
the record is insufficient to justify a higher award. Similar cases
with somewhat similar evidence support this award. See, e.g., Harris
v. U.S. Dep't of Agriculture, EEOC Appeal No. 01966746 (December 11, 1998)
($2,000 award for non-pecuniary damages where the agency failed to promote
complainant, which complainant testified resulted in low self-esteem,
stress and depression for more than a year); Lawrence v. U.S. Postal
Service, EEOC Appeal No. 01952288 (April 18, 1996) ($3,000 award for
non-pecuniary damages where complainant was sexually harassed , which
complainant and her coworkers stated resulted in emotional distress,
illness, humiliation, and anxiety); Padgett v. U.S. Postal Service,
EEOC Appeal No. 01A24518 (July 28, 2003) ($5,000 award for non-pecuniary
damages where the agency terminated complainant's employment, which
complainant stated resulted in depression, personality changes,
sleeplessness and anxiety that will continue indefinitely).
Pecuniary damages
Pecuniary losses include, for example, moving expenses, job search
expenses, medical expenses, psychiatric expenses, physical therapy
expenses, and other quantifiable out-of-pocket expenses that are
incurred as a result of the discriminatory conduct. Enforcement
Guidance. To recover damages, the complaining party must prove that the
employer's discriminatory act or conduct was the cause of his loss. Id.
The critical question is whether the complaining party incurred the
pecuniary losses as a result of the employer's discriminatory action
or conduct. Id.
The Commission concludes that past pecuniary losses are out-of-pocket
losses that occurred prior to the date of the resolution of the
damage claim, i.e., conciliation, settlement, or the conclusion of
litigation. Id. The amount to be awarded for past pecuniary losses can
be determined by receipts, records, bills, cancelled checks, confirmation
by other individuals, or other proof of actual losses and expenses. Id.
Damages for past pecuniary losses will not normally be sought without
documentation. Id.
Complainant provided evidence detailing his out-of-pocket expenses
for prescriptions, physician assistant appointments, and mail postage.
However, the dates for the expenses do not show a causal connection to
claims (1) and (2). The receipts for Serzone either predate January
16, 1998, which is the date the actions alleged in claims (1) and (2)
occurred, or follow the date by more than a year. The records show that
complainant was not prescribed Serzone between October 1997 and February
1999. In addition, the visits to the physician assistant regarding Acute
Situational Anxiety or Depression also either predate January 16 or follow
the date by more than a year. The dates closest to the discriminatory
action date are in October 1997 and February 1999. Finally, the postage
receipts are dated in 1997, prior to the discriminatory action date.
We agree with the agency that complainant's evidence for past pecuniary
damages is insufficient to show a causal connection.
Equitable Relief
Complainant further stated that he used eight weeks of sick leave in
May 1997 and an additional week of annual leave to prepare the instant
complaint. Complainant failed to show that the sick leave he used in May
1997 was causally connected to the disparate treatment the Commission
found occurred in January 1998. In addition, pursuant to 29 C.F.R. �
1614.605, complainant was entitled to a reasonable amount of official
time to prepare his EEO complaint. He should have requested official
time rather than use annual leave for such purposes. Complainant did not
show that he requested and was denied such official time. We find that
complainant is not entitled to restoration of the above-claimed leave.
CONCLUSION
The agency's final decision is modified and remanded. The agency is
instructed to comply with the order as set forth below.
ORDER
The agency is ORDERED to take the following remedial action within 45
calendar days of the date this decision becomes final, unless otherwise
noted:
(1) The agency shall pay complainant compensatory damages in the amount
of $3,500.00 for non-pecuniary damages, less any appropriate offsets.
(2) The agency shall pay complainant's reasonable attorney's fees and
costs related to pursuing this appeal, if applicable, in accordance with
the paragraph below entitled, �Attorney Fees.�
(3) 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.
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 (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 (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 (R0900)
This is a decision requiring the agency to continue its administrative
processing of your complaint. However, if you wish to file a civil
action, you have the right to file such action in an appropriate United
States District Court within ninety (90) calendar days from the date
that you receive this decision. In the alternative, you may file a
civil action after one hundred and eighty (180) calendar days of the date
you filed your complaint with the agency, or filed your appeal with the
Commission. 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. 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
December 12, 2003
__________________
Date