01A03359
08-30-2002
Carolyn P. Collington, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Carolyn P. Collington v. United States Postal Service
01A03359
August 30, 2002
.
Carolyn P. Collington,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A03359
Agency Nos. 4D-270-1138-94 and 4D-270-1024-95
Hearing Nos. 140-95-8096X and 140-95-8014X
DECISION
Carolyn P. Collington (complainant) timely initiated an appeal from a
final agency decision (FAD) concerning her entitlement to compensatory
damages incurred as a result of the agency's unlawful employment
discrimination in violation of Section 501 of the Rehabilitation Act of
1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq. The appeal
is accepted pursuant to 29 C.F.R. 1614.405. For the following reasons,
the agency's final decision is MODIFIED.
Complainant, who has asthma, filed two formal EEO complaints alleging
that the agency discriminated against her by failing to provide her with
a reasonable accommodation. In her first complaint, complainant alleged
agency officials discriminated against her on the basis of her disability
when she was transferred to various work locations which she asserted
were detrimental to her health. In her second complaint, complainant
alleged the agency discriminated against her by not allowing her to
come to work because of her disability, but denying her continuation of
pay benefits. The complaints were consolidated and a hearing was held
before an EEOC Administrative Judge (AJ). The AJ issued a recommended
decision finding discrimination.
On March 7, 1997, the agency issued a final decision rejecting the AJ's
recommended decision and finding no discrimination. Complainant appealed
that decision to this Commission. On December 10, 1998 we issued a
decision reversing the agency's final decision and adopting the AJ's
finding of discrimination. In addition to other relief, we ordered that
the matter be remanded to the agency for a determination of whether
and in what amount complainant was entitled to compensatory damages.
Collington v. United States Postal Service, EEOC Appeal No. 01973564
(December 10, 1998).
On remand, following a supplemental investigation, on March 21, 2000, the
agency issued a final agency decision concerning compensatory damages in
which it awarded $603.27 to complainant. From that decision complainant
brings the instant appeal.
ANALYSIS AND FINDINGS
Pursuant to section 102(a) of the Civil Rights Act of 1991, a complainant
who establishes her claim of unlawful discrimination may receive, in
addition to equitable remedies, compensatory damages for past and future
pecuniary losses (i.e., out-of-pocket expenses) and non-pecuniary losses
(e.g., pain and suffering, mental anguish). 42 U.S.C. � 1981a(b)(3).
For an employer with more than 500 employees, such as the agency,
the limit of liability for future pecuniary and non-pecuniary damages
is $300,000. Id. The Supreme Court has confirmed that the Commission
possesses the legal authority to require federal agencies to pay
compensatory damages. See West v. Gibson, 527 U.S. 212 (1999).
The particulars of what relief may be awarded, and the proof necessary to
obtain that relief, are set forth in detail in Compensatory and Punitive
Damages Available Under Section 102 of the Civil Rights Act of 1991,
EEOC Notice No. N-915.002 (July 14, 1992) (Compensatory Damages Notice).
Briefly stated, the complainant must submit evidence to show that the
agency's discriminatory conduct directly or proximately caused the losses
for which damages are sought. See Damiano v. United States Postal
Service, EEOC Request No. 05980311 (February 26, 1999). The amount
awarded should reflect the extent to which the agency's discriminatory
action directly or proximately caused harm to complainant and the extent
to which other factors may have played a part. See Compensatory Damages
Notice, at 11-12. The amount of non-pecuniary damages should also
reflect the nature and severity of the harm to complainant, and the
duration or expected duration of the harm. Id. at 14. A complainant
is required to provide evidence that will allow an agency to assess the
merits of complainant's request for emotional distress damages. See Carle
v. Department of the Navy, EEOC Appeal No. 01922369 (January 5, 1993).
Evidence of Injury and Causation
At this juncture, the agency does not dispute that its discriminatory
behavior resulted in damages for which complainant is entitled to be
compensated. The nature and amount of those damages is the subject of
disagreement between the parties
Calculation of Damages Payable
Past Pecuniary Damages
Medical Expenses
The agency has refused complainant's claim for medical expenses, in the
amount of $853.45, solely on the ground that complainant did not show
that she, rather than a third-party, bore the expenses. This is not
a proper basis on which to deny the claimed damages. As complainant
points out, Commission precedent applies the collateral source rule
in such situations. The rule holds that �benefits received by the
plaintiff from a source collateral to the defendant may not be used to
reduce the defendant's liability for damages.� See Wallis v. United
States Postal Service, EEOC Appeal No. 01950510 (November 13, 1995).
Thus complainant is required only to prove that she incurred the expenses
in order to establish her entitlement to a corresponding damage award.
She need not make the additional showing that she paid the expenses as
the agency would require her to do. Accordingly, complainant will be
awarded an additional $853.45 for medical expenses. <1>
Mileage
The agency has been found to have discriminated against complainant by
failing to provide a reasonable accommodation on several occasions in
the first half of 1994. This resulted in complainant having to travel
to the hospital and to her physician and pharmacist more times than she
otherwise would have. The agency has agreed to compensate her for the
expenses associated with the use of complainant's automobile on those
trips which occurred prior to June 20, 1994, the date on which it was
determined that complainant could safely return to work. In addition
to that, complainant seeks expenses for automobile trips she made to
physicians and pharmacists in the year 1995 through 1998.
We conclude that complainant is not entitled to reimbursement of expenses
incurred after June 20, 1994. Complainant asserts that the agency's
discriminatory acts have permanently exacerbated her condition thereby
requiring her to incur expenses she otherwise would not have had. We are
unpersuaded by complainant's arguments on this point. Her contention
that her condition has been permanently worsened by the agency's
discriminatory acts confuses coincidence with causation. The fact that
her condition worsened after the discriminatory acts does not prove a
causal relationship between the acts and worsening of the condition.
Expert medical opinion might have shed some light on this question but
complainant has provided none.
Future Pecuniary Damages
For the reasons discussed in the previous section, we conclude that
complainant is not entitled to an award of future pecuniary damages.
Non-pecuniary Damages
There are no definitive rules governing the amount of non-pecuniary
damages to be awarded. Non-pecuniary damages must be limited, however,
to the sums necessary to compensate the injured party for actual harm,
even where the harm is intangible. The existence, nature, and severity
of emotional harm must be proved. See Compensatory Damages Notice,
at 11. Emotional harm may manifest itself, for example, as anxiety,
stress, depression, marital strain, humiliation, emotional distress,
loss of self esteem, excessive fatigue, or a nervous breakdown. Id.
A proper award should take into account the severity of the harm and the
length of time that the injured party suffered the harm. See Carpenter
v. Department of Agriculture, EEOC Appeal No. 01945652 (July 17, 1995).
Finally, 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 Jackson v. United States Postal Service, EEOC Appeal No. 01972555
(April 15, 1999), citing Cygnar v City of Chicago, 865 F.2d 827, 848
(7th Cir. 1989).
Here, in her statement on appeal, complainant points out that the asthma
attacks she has endured as a result of the agency's failure to prove a
reasonable accommodation have resulted in �hospitalization, aggravation of
her pre-existing asthma, difficulty breathing, tightness in her chest,
pain [experienced during the attacks], elevation of blood pressure
and pain resulting from needles used in allergy tests.� In addition
complainant states in her affidavit that she experienced �stress and
anxiety at the hands of [her] managers� as a result of their failure to
assign her to a work area that was safe for her to enter. The record
shows that she experienced these symptoms over a period of at least
six months.
The Commission has awarded compensatory damages for physical and
emotional pain caused by exacerbation of a pre-existing asthma condition.
In Carpenter v. Department of Agriculture, EEOC Appeal No. 01945652
(July 17, 1995) the Commission determined that complainant was entitled
to an award of $75,000 for the pain and emotional distress he endured for
approximately two years when he was required to work under conditions that
cause him to have repeated asthma attacks. Here, complainant's emotional
distress was somewhat less intense than that suffered by complainant in
Carpenter and the duration of harm in the instant case (six months) was
substantially less than that in Carpenter (two years). Accordingly, we
conclude that an award of $15,000 will adequately compensate complainant
for the physical and emotional distress she suffered as a result of the
agency's discriminatory acts.
CONCLUSION
In its final decision the agency awarded complainant $603.27. For the
foregoing reasons, we find that the complainant should be awarded an
additional $853.45 in past pecuniary damages and $15,000 in non-pecuniary
damages. This results in a total award of $16,456.72.
ORDER
The agency is ORDERED to take the following remedial action:
Within thirty (30) calendar days of the date that this decision becomes
final, the agency shall issue a check to complainant in the amount of
$16,456.72 for compensatory damages, less any amount already paid.
The agency is further directed to submit a report of compliance,
as provided in the statement below entitled "Implementation of the
Commission's Decision." The report shall include evidence that the
corrective action has been implemented.
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 tofile 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
August 30, 2002
__________________
Date
1We should note that the collateral source rule
does not apply where the agency can show that complaint's claimed medical
expenses were reimbursed by the Office of Workers Compensation Programs
(OWCP). This is because those payments do not come from a collateral
source in that federal agencies ultimately bear the cost of OWCP payments
made to their employees. See Finlay v. United States Postal Service,
EEOC Appeal No. 01940285 (April 29, 1997). For this reason, the agency's
refusal to award as damages the $720.10 complainant received as medical
expense reimbursement from OWCP was proper.