01a01125
08-06-2002
Paul Gonzalez, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Paul Gonzalez v. United States Postal Service
01A01125
August 6, 2002
.
Paul Gonzalez,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A01125
Agency No. 4E-800-1200-94
Hearing No. 320-95-8162X
DECISION
Complainant timely initiated an appeal from the agency's final decision
concerning his 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.
The appeal is accepted pursuant to 29 C.F.R. � 1614.405.
ISSUE PRESENTED
The issue on appeal is whether complainant has established that he is
entitled to non-pecuniary compensatory damages greater than the amount
of $5,000 awarded by the agency in its final decision.
BACKGROUND
In Gonzalez v. United States Postal Service, EEOC No. 01962418 (May 15,
1998), the Commission ruled, in relevant part, that the complainant had
been subject to reprisal for Title VII EEO activity when he was not
selected for promotion to Postmaster EAS-15 at the Fowler, Colorado,
Post Office, in April 1994. Along with other relief, the Commission
ordered the agency to award compensatory damages based on the evidence
of record on this issue. The agency was also instructed to consider the
witness testimony in the case and awards of compensatory damages in other
similar cases, with the decision specifically identifying four such cases.
On October 19, 1999, the agency, having implemented all other relief
ordered, issued its decision addressing the amount of compensatory
damages. The agency failed to consider any other similar cases.
Its discussion, in full, reads:
Careful consideration has been given in the subject complaint.
The Administrative Judge concluded that the evidence in the record
is uncontroverted both as to the existence of the emotional harm for
complainant and in regard to the cause of the harm. The judge further
found that the complainant had established that he suffered harm, which
was proximately caused by the retaliatory actions of the agency.
The complainant alleges that the actions of the agency caused him to
feel embarrassed, humiliated, and angry which affected his ability to
concentrate and resulted in his becoming depressed. Complainant's wife
and his colleague testified that complainant was very angry, suffered
from a loss of self-confidence, loss of motivation, and low self-esteem.
Based on the evidence in the record, the Agency awards the complainant
$5,000 in non-pecuniary damages.
The complainant now appeals from the agency's award, claiming it to
be insufficient.
ANALYSIS AND FINDINGS
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. 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.
The agency's decision here appealed noted that the complainant or his
witnesses identified embarrassment; humiliation; anger; depression; and
losses of self-confidence, self-esteem and the ability to concentrate.
However, the agency erred in apparently failing to consider more closely
these indicators to determine the extent, nature and severity of the harm.
The agency also overlooked its consideration of the duration of the harm.
We also find that the record discloses additional indicators of emotional
harm caused by the discrimination.
The complainant testified to some transient effects of his non-selection,
including self-reported depression. He also testified that after
his non-selection, he went on bouts of drinking to ease his pain and
suffering, but had stopped. Before then, he had been a social drinker
on weekends only.
Other changes commencing after the non-selection appear from the
testimony to have continued up to the hearing. These included anxiety
and fearfulness, sometimes causing him to not go to work because of fear
that any mistakes would imperil his job. At some point, he convinced
himself to use annual leave instead of sick leave for fear that the
selecting official (who rated him) might fault him for sick leave abuse.
The complainant's wife testified that his great pride in his work and
in the Postal Service had greatly declined.
Complainant also testified that formerly, he had good rapport with his
employees, but after his non-selection, felt embarrassed and humiliated,
and shied away from contact with them. The complainant testified that
he felt embarrassed to introduce himself with 25 years of service at
postmaster meetings, feeling degraded that he only possessed the rank
of EAS 13. A fellow postmaster who knew the complainant for nine years
testified that the complainant turned down details to other offices,
and that he �clammed up and wanted to be in a shell.�
As to motivation, the fellow postmaster testified that the complainant
would not apply for the OIC program, because the �wind had been knocked
out of his sails, and he didn't want to go through it again.� The
complainant testified to his belief that he had lost any hope of advancing
beyond his present position while the selecting official was over him.
The complainant testified to his loss of enjoyment of life. He previously
attended meetings in the city hall, was a member of the local museum
committee and participated in community events as a member of the Veterans
of Foreign Wars. He stopped these activities after the non-selection.
He had been confident that he would get the postmaster position he
had sought, and had informed persons in the community that he might
be leaving; when he wasn't selected, he felt humiliated before them.
The complainant's wife corroborated his loss of interest in community
matters.
He testified that he had become a different person toward his wife.
He became very critical, and their sexual relationship all but ended
after having been healthy. The complainant's wife corroborated the lack
of intimacy. She testified that they no longer talked peaceably, but
fought and argued. She also testified that the twice-yearly vacations
they took together had ceased. She testified that she had become afraid
of talking about family issues with the complainant.
As to the complainant's school-age stepson, the fellow postmaster
testified that the complainant used to talk about his close relationship
with his stepson, and that recently it had became not good, and that
his stepson had lost interest in sports that he used to enjoy with the
complainant. The complainant's wife testified that the complainant�snaps
at� and acts hatefully toward his stepson.
The complainant's close relationship with his wife's extended family also
declined, because he was humiliated after not getting the job he had
expected. The complainant's wife testified that family gatherings and
barbecues at the complainant's home had ceased because the complainant
was very moody, not sociable and difficult to talk to. She gave the
example of a recent wedding when the complainant stayed only an hour
and a half, was rude to her, and left without telling her. Previously,
such an occasion would find him �happy-go-lucky.�
The complainant also testified that before the non-selection, he
had sleep apnea under control using a mask and attached machine;
however, afterwards, he would awake at night three or four times a week.
The complainant's wife testified that the complainant previously used to
fall asleep easily, but since the non-selection would regularly awake at
3:00 a.m., get out of bed and �do things,� so that he would be tired in
the morning. She added that the complainant also had headaches, which
continued even after he ruled out vision problems with an eye examination.
He also testified to diminished concentration, and thoughts straying
to his not getting the position he sought and the selecting official.
He also testified to anger at himself for having non-productive thought
patterns.
The record shows the emotional and related harms commenced from the
non-selection in April 1994 and continued at least to the hearing in
September 1995, a period of 19 months. We also note that the agency
rejected the Administrative Judge's finding of discrimination in January
1996, and the matter has continued.
The Commission has considered and awarded non-pecuniary compensatory
damages in cases similar to the above circumstances. In Colwell v. USPS,
EEOC Appeal No. 01985789 (June 13, 2001), in which a probationary employee
was separated on the discriminatory basis of her sex and disability,
the complainant was awarded $20,000 for harm over a 17-month period
consisting of depression and emotional distress manifesting as crying
spells, insomnia, headaches, anxiety attacks, low self-esteem and
mood swings. These required psychological treatment.
In Ward-Jenkins v. Department of the Interior, EEOC Appeal No. 01961483
(March 4, 1999), where reprisal discrimination was found in the agency's
detailing and then reassigning the complainant from her job in California
to a position in Colorado, the complainant testified to depression,
irritability, loss of energy, and abandonment of recreational and
social activities. She also became less involved in her daughter's
school activities, and suffered from diminished ability to concentrate,
insomnia, nightmares and weight gain of 100 pounds. This persisted over
two years and eight months, for which the Commission awarded her $50,000
in non-pecuniary damages. (It is unclear whether this was discounted
about 15 per cent for a pre-existing psychiatric condition.)
Given the severity and duration of the complainant's emotional damage,
the Commission finds that the complainant is entitled to non-pecuniary
damages in the amount of $25,000.
ORDER
The agency shall issue a check to the complainant in the amount of
$25,000 for compensatory damages.
Complainant, through counsel, shall submit a request for attorney's
fees and costs in accordance with the Attorney's Fees paragraph set
forth below.
No later than sixty (60) days after the agency's receipt of the attorney's
fees statement and supporting affidavit, the agency shall issue a final
agency decision addressing the issues of attorney's fees. The agency
shall submit a copy of the final decision to the Compliance Officer at
the address set forth below.
The agency is further directed to submit a report of compliance, as
provided in the statement entitled "Implementation of the Commission's
Decision." The report shall include evidence that the corrective
action has been implemented and supporting documentation of the agency's
calculation of attorney's fees.
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
August 6, 2002
__________________
Date