01a00438
09-28-2000
Belinda J. Portley, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service (S.E./S.W Areas), Agency.
Belinda J. Portley v. United States Postal Service
01A00438
September 28, 2000
.
Belinda J. Portley,
Complainant,
v.
William J. Henderson,
Postmaster General,
United States Postal Service
(S.E./S.W Areas),
Agency.
Appeal No. 01A00438
Agency No. 1G-753-0070-97
Hearing No. 310-98-5483X
DECISION
INTRODUCTION
Complainant timely initiated an appeal from the agency's final decision
concerning her equal employment opportunity (EEO) 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
Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as
amended, 29 U.S.C. � 791 et seq.<1> The appeal is accepted pursuant
to 29 C.F.R. � 1614.405. Complainant alleges she was discriminated
against on the bases of disability (right foot and right hand/Carpel
Tunnel Syndrome), and reprisal (prior EEO activity), when: (1) on or
about April 21, 1997, she was placed in a non-duty, non-pay status;
and (2) on June 30, 1997, she was issued a Notice of Removal. For the
following reasons, the Commission AFFIRMS the agency's final decision.
ISSUE PRESENTED
Whether the agency's final decision that denied complainant certain
pecuniary compensatory damages was correct.
BACKGROUND
The record reveals that complainant, a Full Time Limited Duty Distribution
Clerk at the agency's Processing and Distribution Center, Dallas Texas
facility, filed a formal EEO complaint with the agency on August 26, 1997,
alleging that the agency had discriminated against her as referenced
above. At the conclusion of the investigation, complainant received
a copy of the investigative report and requested a hearing before an
EEOC Administrative Judge (AJ). Following a hearing, the AJ issued a
decision finding that complainant was discriminated against on the basis
of reprisal, and that she was not discriminated against on the basis of
disability.
As background, the AJ noted that complainant suffers from Carpel Tunnel
Syndrome, and as a result, she is limited to lifting no more than ten
pounds of weight. Furthermore, in January 1997, complainant fell off
a chair while she was attempting to cover an air conditioning vent.
The action that promoted the instant complaint occurred on June 30, 1997,
when complainant's supervisor issued complainant a Notice of Removal
for allegedly falsifying an Office of Worker's Compensation Program
(OWCP) form. At the request of the Labor Relations Specialist, the
postal service investigated the falsification charge against complainant.
The AJ noted that back in November of 1996, complainant had brought an
EEO complaint against the Labor Relations Specialist.
Pursuant to the grievance process, complainant was reinstated into her
position in June 1998, and awarded $20,000 in back pay, plus interest.
Since October 1998, complainant has worked in a position where she
answers phone calls for computer assistance.
In her decision, the AJ concluded that although complainant was an
individual with a disability, she failed to present a prima facie case of
disability discrimination. Specifically, the AJ found that complainant
failed to demonstrate that similarly situated employees not in her
protected class were treated differently under similar circumstances.
Furthermore, the AJ noted that complainant did not dispute that she was
accommodated in her present position.
The AJ concluded that complainant established a prima facie case of
reprisal discrimination because she established that she engaged in
prior EEO activity in November 1996, of which the responsible officials
were aware. Further, the requisite causal connection was established
since there was only an eight month period between the prior EEO activity
and the postal service investigation and subsequent Notice of Removal.
The AJ further concluded that the agency articulated legitimate,
nondiscriminatory reasons for its actions. The AJ found that the
supervisor placed complainant in a non-pay status and subsequently issued
the Notice of Removal because she falsified items on an OWCP form in
order to make it appear that complainant's injury was work related.
The AJ found that complainant established that more likely than not,
the agency's articulated reasons were a pretext to mask unlawful
retaliation. In reaching this conclusion, the AJ found that the Labor
Relations Specialist, who initiated the postal service investigation
that resulted in complainant's removal, had expressed anger over
complainant's November 1996 EEO complaint. Furthermore, the AJ found
that soon after the Labor Relations Specialist displayed contempt for
the settlement of complainant's prior EEO complaint, he initiated the
postal service inspection. As for the postal service investigation,
the AJ found insufficient evidence to support a definitive conclusion
that complainant falsified her OWCP form. The AJ also found that the
Labor Relations Specialist's actions precipitated complainant's removal
from the postal service.
Therefore, the AJ found that complainant established, by a preponderance
of the evidence, that complainant was retaliated against when she was
placed in a non-duty, non�pay status and was issued a Notice of Removal.
As relief, the AJ noted that complainant was already compensated for back
pay pursuant to the grievance procedures. As for complainant's claim of
compensatory damages, the AJ found that complainant suffered pecuniary and
non-pecuniary harm as a result of the agency's discriminatory actions.
Specifically, complainant testified that she suffered damage to her
credit standing when she was not working. She also testified that she
withdrew from her family members and broke off her engagement when she
was removed from agency employment.
The AJ recommended that complainant be reimbursed for doctor and counselor
fees and medication to the extent that she could verify that the claimed
expenses related to proven discrimination. The AJ also recommended
that complainant be reimbursed for the amount of money she lost when
her car was repossessed when she was removed from the postal service.
Specifically, the AJ determined that the agency should pay complainant the
amount of money she paid on the car note up until the car was repossessed.
Finally, the AJ recommended that the agency pay complainant's reasonable
attorney's fees and post a notice.
On May 6, 1999, the agency issued a final decision adopting the AJ's
recommended decision finding reprisal discrimination. As relief,
the agency awarded complainant $2,000 for non-pecuniary compensatory
damages, as well as her reasonable attorney's fees. Furthermore, the
agency requested that complainant submit appropriate documentation
establishing payments made for physicians, medication or counselors
due to the discrimination. The agency also requested that complainant
submit documentation establishing the amount paid on the car note until
the date the car was repossessed.
After complainant submitted her documentation, the agency issued a second
final decision on September 24, 1999. Therein, the agency noted that
it had paid complainant $2,000 for her emotional distress, and $1,248.60
for medical fees and medication related to the discrimination. However,
the agency refused to pay complainant any compensation related to the
repossession of her car since the documentation submitted by complainant
revealed that complainant was not the owner of the vehicle.
CONTENTIONS ON APPEAL
On appeal, complainant contends that the agency misunderstood the nature
of the car ownership. She states that the car is listed in another
individual's name because she did not have a job in 1995 when she
bought the car. Complainant states that she paid the down payment,
all monthly payments, and secured insurance coverage for the car.
She also submits an affidavit from the individual whose name the car
is listed. Therein he avers that complainant paid the down payment,
monthly payments, and had sole possession of the vehicle at all times.
He averred that at no time did he provide any monetary support or act
in a manner that was in opposition to complainant's sole ownership
of the vehicle. He states that complainant continued to make monthly
payments on the vehicle until it was repossessed due to her unemployment.
Complainant submits documentation already submitted to the agency
pursuant to the AJ's order to investigate complainant's entitlement to
pecuniary damages. Therein she provides an explanation for the nature of
her ownership of the vehicle. Furthermore, she states that she phoned
an individual at the collection agency and found out that there was an
outstanding balance of $13,045.73 on the car. Therefore, subtracting
that amount from the purchase price of the car ($43,938.65) leaves a
total of $30,921 that she paid on the car until it was repossessed.
Complainant also submits proof of insurance coverage, a contract for
sale of the vehicle, a monthly bill for approximately $633.00, as well
as her credit union statements for the years 1994-1997.
ANALYSIS AND FINDINGS
Compensatory damages are recoverable in the administrative process.
See West v. Gibson, 119 S. Ct. 1906(1999). Thus, if a complainant has
alleged that she is entitled to compensatory damages and the agency or
the Commission enters a finding of discrimination, the complainant must
be given an opportunity to submit evidence establishing her claim. To
receive an award of compensatory damages, a complainant must demonstrate
that 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. 01934156(July 22, 1994), request for reconsideration denied,
EEOC Request No. 05940927 (December 11, 1995); Enforcement Guidance:
Compensatory Damages 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).
A complainant may recover past out-of-pocket expenses incurred as a
result of the intentional discrimination. Id. at 8. In the present
case, the AJ found that complainant established a causal connection
between the agency's discrimination and the repossession of her car.
In its final decision, however, the agency determined that complainant
was not entitled to payments on the car because the car was not in
complainant's name. After a careful review of the record, we find
complainant failed to satisfy her burden of establishing, through proper
documentation, the amount she paid on the car note. The AJ in this case
specifically requested complainant to submit proper documentation for
the car payments made on the car that complainant claimed was valued
at $17,000. The record before us, however, only contains numerous
credit union statements, one monthly car bill in the amount of $633.00,
and proof of insurance coverage. Complainant failed to provide any
cancelled checks, or otherwise explain, with supporting documentation or
affidavits, how much she paid on the car note. As such, we are unable
to determine the amount complainant paid on her car note from the time
she purchased it until the time it was repossessed.
Therefore, 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 AFFIRM the agency's
final decision.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0800)
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).
COMPLAINANTS' RIGHT TO FILE A CIVIL ACTION (S0400)
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
September 28, 2000
__________________
Date
1 On November 9, 1999, revised regulations governing the EEOC's
federal sector complaint process went into effect. These regulations
apply to all federal sector EEO complaints pending at any stage in
the administrative process. Consequently, the Commission will apply
the revised regulations found at 29 C.F.R. Part 1614 in deciding the
present appeal. The regulations, as amended, may also be found at the
Commission's website at www.eeoc.gov.