Alvin DeVaughn, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, (Eastern Area), Agency.

Alvin DeVaughn v. United States Postal Service

01A34719

January 7, 2004

.

Alvin DeVaughn,

Complainant,

v.

John E. Potter,

Postmaster General,

United States Postal Service,

(Eastern Area),

Agency.

Appeal No. 01A34719

Agency No. 4D-270-0048-98

DECISION

Complainant timely initiated an appeal from the agency's final decision

awarding complainant the sum of $5,000.00 in non-pecuniary compensatory

damages following a decision by the Equal Employment Opportunity

Commission (�the Commission�) finding that the agency had engaged in

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 Commission AFFIRMS the agency's final decision

on compensatory damages.

The record reveals that complainant was an applicant for employment

with the agency in Greensboro, North Carolina. In December 1997,

complainant received a letter stating that the agency considered

him medically unsuitable for the position of Distribution & Window

Clerk (DWC) and that his name was removed from the active register of

eligibles. The letter described complainant as having "pain in feet with

long term standing" and "transient swelling of hands and feet." The agency

deemed these conditions "not compatible with the strenuous activities

required for the Distribution & Window Clerk position, which includes

heavy lifting up to 70 pounds, extensive heavy carrying of 45 pounds

and over and excessive walking and standing for up to 8 hours per day

casing the mail, loading and unloading trucks and performing window

service duties. The agency concluded that postal employment would place

complainant's "personal health and safety in jeopardy." In its final

decision, the agency concluded that complainant was not an individual

with a disability within the meaning of the Rehabilitation Act because

he did not have an impairment which substantially limited his ability

to work and because there was no evidence that he was regarded as having

an impairment which substantially limited a major life activity.

Pursuant to complainant's appeal, the Commission reversed the agency's

final decision, finding that the agency regarded complainant as having

feet and hand impairments which substantially limit the major life

activity of working in a broad range of jobs in various classes, and

that the agency's denial of employment to complainant was in violation

of the Rehabilitation Act. Of the remedies ordered by the Commission

for the act of discrimination, the agency was ordered to issue a final

decision on compensatory damages pursuant to 29 C.F.R. � 1614.110(b).

See DeVaughn v. USPS, EEOC Appeal No. 01993070 (July 30, 2002), req. for

recon. denied, EEOC Request No. 05A21321 (March 17, 2003).

Subsequently, the agency issued a final decision on the issue of

compensatory damages. The agency considered the evidence submitted by

complainant in support of his claim for compensatory damages and initially

found that complainant was not entitled to any pecuniary damages.

In addition, the agency considered awards in similar cases and found

that complainant was entitled to $5,000.00 in non-pecuniary damages,

noting his testimony regarding severe emotional distress, lack of sleep,

loss of appetite, family problems and financial difficulties.

Complainant then appealed the agency's decision on compensatory damages,

alleging that he had established entitlement to almost $37,000.00 in

pecuniary and non-pecuniary damages. Complainant alleges that in finding

that he was entitled to $5,000.00 in non-pecuniary damages, the agency

held complainant to a higher evidence standard for compensatory damages

than the Commission requires. Complainant also alleged that the cases

cited by the agency in support of its decision can be distinguished from

complainant's case. The agency requests that we affirm its FAD.

We note that the Civil Rights Act of 1991 (CRA) authorizes awards

of compensatory damages as relief for intentional discrimination in

violation of the Rehabilitation Act. 42 U.S.C. � 1981a. Compensatory

damages are recoverable in the administrative process. West v. Gibson,

119 S.Ct. 1996 (1999); see Jackson v. United States Postal Service,

EEOC Appeal No. 01923399 (November 12, 1992), req. to recon. den.,

EEOC Request No. 05930306 (February 1, 1993). Compensatory damages may

be awarded for losses and suffering due to the discriminatory acts or

conduct of the agency and include past pecuniary losses, future pecuniary

losses, and non-pecuniary losses that are directly or proximately caused

by the agency's discriminatory conduct. See Compensatory and Punitive

Damages Available Under Section 102 of the Civil Rights Act of 1991,

EEOC Notice No. N 915.002 (July 14, 1992) (Notice) at p. 8.

Generally, a compensatory damages award should fully compensate a

complainant for the harm caused by the agency's discriminatory action

even if the harm is intangible. Id. at 13. Regarding non-pecuniary

damages, we note that such damages are designed to remedy a harm and

not to punish the agency for its discriminatory actions. See Memphis

Community School Dist. v. Stachura, 477 U.S. 299, 311-12 (1986)(stating

that compensatory damages determination must be based on the actual harm

sustained and not the facts of the underlying case). A proper award

of non-pecuniary damages 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)).

Section 1981a(b)(2) of the CRA 1991 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 $300,000.00. 42

U.S.C.1981a(b)(3)(D).

To receive an award of compensatory damages, a complainant must

demonstrate the following: that he 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.

Addressing the agency's determination that complainant was not

entitled to pecuniary damages, we initially concur with the agency's

finding that complainant failed to demonstrate that he was entitled to

pecuniary damages or reimbursement for the living expenses, expenses

associated with withdrawing money from his 401K account, and late fees

and penalties regarding his home loan during the period after the act

of discrimination. See Mature v. United States Postal Service, EEOC

Appeal No. 07A20065 (March 17, 2003)(stating that expenses such as

rent, tax payments, mortgage payments and living expenses would have

been incurred whether complainant was discriminated against or not);

see also Lee v. United States Postal Service, EEOC Appeal No. 01995204

(July 11, 2001); Rivera, supra. In addition, we agree with the agency's

contention that complainant was not entitled to be reimbursed for the

$6,000.00 he borrowed from his brother in 1999 for job retraining.

In support of his claim, complainant submitted a notarized letter from

his brother stating that he loaned complainant the $6,000.00 in 1999,

and he also submitted a certificate stating that he had been certified

in computer systems operations in 2002. As found by the agency, it is

unlikely that the loan complainant received in 1999 was used for the

training course he took in 2002. Further, there is no documentation

that the $6,000.00 complainant received from his brother was used for

the training course at issue. See Batieste v. Dept. of the Air Force,

EEOC Appeal No. 01974616 (May 24, 2000)(stating that complainant failed

to submit documentation that claimed expenses were related to employment

development). Further, we disagree with complainant's contention that

in making its determination regarding pecuniary damages, the agency held

him to a higher standard than that which is required by the Commission.

We further find that the agency's award of non-pecuniary damages is

consistent with the amounts awarded in similar cases, given the level

of harm experienced by complainant. See Loving v. Department of the

Treasury, EEOC Appeal No. 01955789 (March 19, 1998) (complainant awarded

$3,000.00 for harassment resulting in headaches, sleeplessness, loss of

self esteem and confidence); Spencer v. Department of the Treasury, EEOC

Appeal No. 07A10035 (May 6, 2003)($5,000.00 awarded for complainant's

complaints of dejection, stress and emotional pain). The Commission

further notes that the amount awarded by the agency meets the goals

of not being motivated by passion or prejudice, not being "monstrously

excessive" standing alone, and being consistent with the amounts awarded

in similar cases. See Cygnar, 865 F.2d at 848; US EEOC v. AIC Security

Investigations, Ltd., 823 F.Supp. 573, 574 (N.D. Ill 1993). We therefore

discern no basis to disturb the agency's decision.

Therefore, after a careful review of the record, including arguments

and evidence not specifically

discussed in this decision, the Commission affirms the agency's final

decision. The agency is directed to take remedial action in accordance

with this decision and the Order below.

ORDER

The agency is ordered to take the following remedial action:

1. Within sixty (60) days of the date on which this decision becomes

final, the agency, if it has not already done so, shall tender to

complainant non-pecuniary compensatory damages in the amount of $5,000.00.

2. 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 supporting documentation verifying

that the corrective action has been implemented.

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 (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

January 7, 2004

__________________

Date