U.S. Equal Employment Opportunity Commission (E.E.O.C.) Office of Federal Operations * * * DONITA B,1 COMPLAINANT, v. DR. DAVID J. SHULKIN, SECRETARY, DEPARTMENT OF VETERANS AFFAIRS, AGENCY. Appeal No. 0120160410 Agency No. 200306742010103068 October 18, 2017 DECISION On October 22, 2015, Complainant filed an appeal,2 pursuant to 29 C.F.R. § 1614.403(a), from the Agency's August 27, 2015 FAD concerning her equal employment opportunity (EEO) complaint alleging employment discrimination in violation of Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq. For the following reasons, the Agency's FAD awarding damages is MODIFIED. The complaint is REMANDED for compliance. ISSUES PRESENTED 1. Did the Agency correctly determine that Complainant was entitled to $100,000 in non-pecuniary compensatory damages, and $63.37 in pecuniary damages as a result of disability and reprisal discrimination? 2. Did the Agency correctly determine that Complainant was not entitled to back pay? BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Staff Physician at the Agency's Central Texas Veterans Healthcare System in Temple, Texas. On June 22, 2010, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the bases of disability (tendinosis) and reprisal for prior protected EEO activity under the Rehabilitation Act when Complainant was subjected to disparate treatment, a hostile work environment and denied reasonable accommodation from March 2010 through June 2010. Complainant's alleged the following: 1. From March 26, 2010, through the present, Complainant has experienced an increase in workload; 2. In early April 2010, Complainant was ordered and required to fill out a formal written request for accommodation to which there has been no response, and no accommodation; 3. On May 19, 2010, Complainant's request for Advance Cardiac Life Support (ACLS) training was cancelled by Person A, who cited Complainant's physical condition as his reason for cancellation of the training; 4. On June 9, 2010, Complainant had to submit for a fitness for duty examination; 5. On June 20, 2010, Complainant received in her mailbox a letter dated June 2, 2010, renewing her clinical privileges only until September 1, 2010, effectively reducing the renewal period from the usual two years to three months; 6. On June 22, 2010, Complainant learned that her locality percentage abruptly disappeared in the eighth pay period ending April 24, 2010. 7. Complainant was subjected to a hostile work environment when: a. On February 20, 2010, management assigned Complainant repetitive keyboarding duties. Complainant viewed this as removing her medical accommodation; b. From February 20, 2010, through the present, Complainant has experienced an increase in workload; c. In early April 2010, Complainant was ordered and required to fill out a formal written request for accommodation but management failed to respond to the accommodation request; d. On April 19, 2010, Complainant was threatened with discipline if she did not work beyond her medical restrictions; e. On May 19, 2010, Complainant's request for Advance Cardiac Life Support (ACLS) training was cancelled by Person A, who cited Complainant's physical condition as his reason for cancellation of the training; f. On June 9, 2010, Complainant had to submit for a fitness for duty examination; g. On June 20, 2010, Complainant received in her mailbox a letter dated June 2, 2010, renewing her clinical privileges only until September 1, 2010, effectively reducing the renewal period from the usual two years to three months; h. On June 22, 2010, Complainant learned that her locality percentage abruptly disappeared in the eighth pay period ending April 24, 2010. At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation (ROI) and notice of her right to request a hearing before an Equal Employment Opportunity Commission Administrative Judge (AJ). Complainant requested a hearing but subsequently withdrew her request, therefore, the Agency issued a FAD on the merits of her complaint. The decision concluded that Complainant proved that the Agency denied her reasonable accommodation and subjected her to disparate treatment disability discrimination on parts of her complaint. Complainant appealed portions of the Agency's FAD finding no discrimination, and the Commission concluded on appeal that Complainant was subjected to disparate treatment disability discrimination and a hostile work environment on other portions of her complaint. EEOC Appeal No. 0120121002 (Apr. 10, 2014). The only allegation that the Agency was found to not have discriminated against Complainant was allegation (6). Also, the Commission found that the Agency did not subject Complainant to a hostile work environment based on reprisal. The complaint was remanded for compliance with an order for remedies, which included for the Agency to determine appropriate compensatory damages and remunerate Complainant for any loss of pay associated with the denial of accommodation. The Agency subsequently issued a FAD finding that Complainant was entitled to $100,000 in non-pecuniary compensatory damages, which is the subject of the present appeal. CONTENTIONS ON APPEAL Complainant contends that she should be awarded damages in the amount of her salary with appropriate increases starting from the time she stopped working in June 2010. The Agency argues that Complainant is not entitled to back pay for this time period because she did not have a claim of constructive discharge. ANALYSIS AND FINDINGS The Agency concluded that Complainant was entitled to $100,000 in non-pecuniary compensatory damages, and $63.37 in pecuniary damages for expenses she incurred. Complainant maintains on appeal that she is entitled to $332,555 in back pay for lost wages between 2010 to present. I. Non-Pecuniary Compensatory Damages A Complainant who establishes her claim of unlawful discrimination may receive compensatory damages for 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 non-pecuniary damages is $300,000. While there are no definitive rules governing the amount of non-pecuniary damages to be awarded, non-pecuniary damages must be limited to the sums necessary to compensate the injured party for actual harm, even where the harm is intangible, and should take into account the severity of the harm and the length of time that the injured party has suffered the harm. Carter v. Duncan-Higgins, Ltd., 727 F.2d 1225 (D.C. Cir. 1984); Carpenter v. Department of Agriculture, EEOC Appeal No. 01945652 (July 17, 1995). The amount of the award of non-pecuniary compensatory 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 Cygnar v. City of Chicago, 865 F. 2d 827, 848 (7th Cir. 1989); EEOC v. AIC Security Investigations, Ltd., 823 F. Supp. 571, 574 (N.D. Ill. 1993). Evidence from a health care provider or other expert is not a prerequisite for recovery of compensatory damages for emotional harm. Lawrence v. U.S. Postal Service, EEOC Appeal No. 01952288 (Apr. 18, 1996) (citing Carle v. Dep't of the Navy, EEOC Appeal No. 01922369 (Jan. 5, 1993)). Complainant's own testimony, along with the circumstances of a particular case, can suffice to sustain her burden in this regard. The more inherently degrading or humiliating the agency's action is, the more reasonable it is to infer that a person would suffer humiliation or distress from that action. Id. The absence of supporting evidence, however, may affect the amount of damages appropriate in specific cases. See Banks v. U.S. Postal Service, EEOC Appeal No. 07A20037 (Sept. 29, 2003) (citing, Lawrence, EEOC Appeal No. 01952288). Complainant provided an affidavit, an affidavit from her daughter and a doctor's behavioral health report in support of her claim for non-pecuniary compensatory damages. The Agency concluded that Complainant experienced depression, anxiety, sleeplessness, suicidal thoughts, exhaustion, vocational distress, mood disturbances and muscular tension. The Agency's denial of accommodation, and disability and reprisal discrimination occurred for approximately five months, until Complainant stopped working in June 2010. The record also reveals that Complainant suffered from physical pain due to the Agency's denial of accommodation, which was not mentioned in the Agency's FAD on compensatory damages as part of analyzing the amount of harm Complainant suffered. See FAD on Compensatory Damages, p. 6. Therefore, a reasonable amount of additional damages to account for pain and symptoms Complainant experienced is $125,000. This amount is not excessive in comparison to other similar cases. See, e.g., Complainant v. Dep't of the Air Force, Appeal No. 0120151396 (Apr. 15, 2016) (awarding $125,000 in compensatory damages for six months of harassment leading to anxiety, difficulty concentrating, a loss of appetite, high blood pressure and severe headaches). Therefore, the Agency will be required to pay Complainant a total sum of $125,000 in non-pecuniary compensatory damages, which represents a $25,000 increase from the amount the Agency awarded in its damages FAD. II. Back pay The Agency did not award Complainant any money for loss of pay associated with the discrimination. Relief in the form of back pay is appropriate "unless clear and convincing evidence contained in the record demonstrates that the personnel action would have been taken even absent the discrimination." 29 C.F.R. § 1614.501(c)(1); see, also, Barszcz v. Dep't of Treasury, EEOC Appeal No. 01881708 (Sept. 19, 1988) (noting that "once appellant has established a basic case for back pay, the burden of proof and persuasion falls to the agency to establish by 'clear and convincing evidence' that the award should not be made"). Regarding Complainant's claim that she should be awarded damages for her loss in pay since she stopped working in 2010, Complainant did not provide evidence showing that she was completely unable to work for the entire period. Complainant submitted a behavioral medicine consultation report, but the report stated that determinations regarding Complainant's ability to return to work would be left to her physician. Complainant did not submit further documentation on this point. The Agency's decision on the merits of the complaint and the subsequent Commission decision found that Complainant's accommodations were removed and she was forced to work without those accommodations up to the point when she stopped working in June 2010. In these circumstances, the Agency needs to determine whether there was some period of time following June 2010 when Complainant was ready, willing and able to work, but she could not do so because the Agency was not providing her with reasonable accommodations. Schnaidt v. Dep't of Veterans Affairs, EEOC Petition Nos. 04960022 & 04960022 (finding that the "agency carries the burden of proof to show that petitioner was not ready, willing and able to work") (citing, Day v. Mathews, 530 F.2d 1083, 1085 (D.C. Cir. 1976)). The April 2014 Commission decision ordered the Agency to "revert Complainant's duties to what they were in February 2010," therefore, the Commission concluded in its decision that Complainant may be able to return to work with previous accommodations. EEOC Appeal No. 0120121002, at *10. The Agency stated that it was impossible to perform this portion of the Commission's order because Complainant "has been receiving compensation from the Department of Labor Office of Workers Compensation since 2011, and has not returned to work at the VA." See Agency Compliance Report, Tab 4, EEOC Compliance No. 0620140408. The Agency should determine if there was any time period before or after acceptance of Complainant's Office of Workers Compensation Programs claim where Complainant was able and willing to work with accommodation.3 Further, the Agency is advised that receipt of OWCP (OWCP) benefits do not preclude a back pay award in totality.4 Therefore, the Agency will need to determine the appropriate amount of back pay upon remand. CONCLUSION Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed, the Agency's FAD on compensatory damages which found that Complainant was entitled to $100,000 in non-pecuniary compensatory damages is MODIFIED for the Agency to award Complainant an additional $25,000 in non-pecuniary compensatory damages totaling $125,000. The Agency should also calculate an appropriate amount of back pay due to Complainant. The complaint is REMANDED for compliance with this decision and the Order below. ORDER5 Within one hundred and twenty (120) calendar days from the date this decision is issued, the Agency shall: 1. Pay Complainant an additional $25,000 in non-pecuniary compensatory damages for a total of $125,000 in non-pecuniary compensatory damages; 2. Determine and pay to Complainant the appropriate amount of back pay, with interest, and other benefits due Complainant, pursuant to 29 C.F.R. § 1614.501. The Complainant shall cooperate in the Agency's efforts to compute the amount of back pay and benefits due, and shall provide all relevant information requested by the Agency. The Agency shall provide Complainant with its specific reasoning and calculations on how it reached this amount of back pay. If there is a dispute regarding the exact amount of back pay and/or benefits, the Agency shall issue a check to the Complainant for the undisputed amount within sixty (60) calendar days of the date the Agency determines the amount it believes to be due. The Complainant may petition for enforcement or clarification of the amount in dispute. The petition for clarification or enforcement must be filed with the Compliance Officer, at the address referenced in the statement entitled "Implementation of the Commission's Decision;"6 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. ATTORNEY'S FEES (H1016) If Complainant has been represented by an attorney (as defined by 29 C.F.R. § 1614.501(e)(1)(iii)), 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 the date this decision was issued. 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 (K0617) 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 in the digital format required by the Commission, and submitted via the Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). 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 (M0617) 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. A party shall have twenty (20) calendar days of receipt of another party's timely request for reconsideration in which to submit a brief or statement in opposition. See 29 C.F.R. § 1614.405; Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at Chap. 9 § VII.B (Aug. 5, 2015). All requests and arguments must be submitted to the Director, Office of Federal Operations, Equal Employment Opportunity Commission. Complainant's request may be submitted via regular mail to P.O. Box 77960, Washington, DC 20013, or by certified mail to 131 M Street, NE, Washington, DC 20507. 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 agency's request must be submitted in digital format via the EEOC's Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). 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 (Q0610) This decision affirms the Agency's final decision/action in part, but it also requires the Agency to continue its administrative processing of a portion of your complaint. 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 on both that portion of your complaint which the Commission has affirmed and that portion of the complaint which has been remanded for continued administrative processing. 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, identitying 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 (Z0815) If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may request permission from the court to proceed with the civil action without paying these fees or costs. Similarly, if you cannot afford an attorney to represent you in the civil action, you may request the court to appoint an attorney for you. You must submit the requests for waiver of court costs or appointment of an attorney directly to the court, not the Commission. The court has the sole discretion to grant or deny these types of requests. Such requests do not alter the time limits for filing a civil action (please read the paragraph titled Complainant's Right to File a Civil Action for the specific time limits). FOR THE COMMISSION: Carlton M. Hadden Director Office of Federal Operations Footnotes 1 This case has been randomly assigned a pseudonym which will replace Complainant's name when the decision is published to non-parties and the Commission's website. 2 Complainant filed the appeal about two months after the Agency issued it's final agency (FAD) decision, however, the Agency does not challenge timeliness because it does not have documentation of sending the FAD to Complainant's legal counsel. The FAD may have only been sent to Complainant. 3 The Commission recognizes the fact that Complainant argues that she can no longer work, however, there is insufficient evidence in the record to determine if that was the case since June 2010 when she stopped working at the Agency. 4 "An OWCP award that is meant to compensate for lost wages should be deducted from the total amount of back pay to which the petitioner is entitled in order to avoid double wage recovery, but the portion of the OWCP award that is paid as reparation for physical injuries should not be deducted from back pay because it is unrelated to wages earned." Perez v. U.S. Postal Serv., EEOC Petition No. 04A40041 (Mar. 3, 2005) (citing, EEOC v. Blue & White Service Corp., 674 F. Supp. 1579, 1582 (D. Minn. 1987). 5 This decision incorporates the order for remedial action issued in EEOC Appeal No. 0120121002. 6 On the issue of back pay, the previous Commission decision ordered "lost pay attributable to the denial of her accommodation." See EEOC Appeal No. 0120121002. The Agency's FAD finding denial of accommodation and disability discrimination also awarded Complainant loss of pay related to the denial of accommodation. Agency FAD, EEOC Appeal No. 0120121002, p. 12-14.