U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Danita P.,1 Complainant, v. Peter O'Rourke, Acting Secretary, Department of Veterans Affairs, Agency. Appeal No. 0120172149 Hearing No. 430-2014-00351X Agency No. 2004-0658-2013103579 DECISION The Equal Employment Opportunity Commission (EEOC or Commission) accepts Complainant's appeal, pursuant to 29 C.F.R. § 1614.403(a), from the Agency's May 2, 2017 final order concerning her equal employment opportunity (EEO) complaint claiming 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. BACKGROUND During the relevant time, Complainant worked as a Claims Assistant for the Agency's Centralized Fee Unit at the Salem VA Medical Center in Salem, Virginia. Believing that she was subjected to discriminatory harassment based on her color (black/lighter complexion), disability (systemic lupus), and reprisal for prior protected activity, Complainant filed a formal complaint on July 23, 2013. The Agency framed the alleged events of harassment as follows: 1. On April 16, 2013, she was restricted on how much Family Medical Leave Act (FMLA) leave she could use; 2. On June 17, 2013, Complainant's Supervisor refused to honor her approved FMLA leave which was approved through Human Resources (HR) as a reasonable accommodation; 3. On June 17, 2013, Manager of Fee Services refused to forward Complainant's medical certification to HR for processing; 4. On June 17, 2013, although she provided documentation to support her being granted more than 15 hours of FMLA leave per month, Supervisor continued to disapprove her leave requests and to charge Complainant with Absent Without Leave (AWOL); 5. On July 27, 2013, she received a letter of indebtedness for $251.43 due to overpayment for pay period ending March 9, 2013, through May 18, 2013, because of time and attendance change; 6. On August 6, 2013, she discovered that on July 12, 2013, Manager made a corrected time change to sick leave that Complainant had accrued and used was withdrawn; 7. On September 17, 2013, Complainant received a probationary warning letter; 8. On December 16, 2013, she received a letter of indebtedness for $114.08 due to a corrected time and attendance change; and, 9. On January 16, 2014, her request to telework as a reasonable accommodation was denied. After its investigation into the complaint, the Agency provided Complainant with a copy of the report of investigation and notice of right to request a hearing before an Equal Employment Opportunity Commission (EEOC or Commission) Administrative Judge (AJ). On July 3, 2014, Complainant timely requested a hearing. Following numerous Motions to Compel, seeking responses from the Agency to her discovery requests, Complainant filed a Motion for Sanctions. The AJ granted Complainant's motion, sanctioning the Agency by denying it the opportunity to present witnesses at the hearing. Complainant was also granted attorney's fees related to the filing of the motion. At the hearing, held on February 14, 2017, the AJ heard testimony from Complainant and her union steward. As a result, the AJ concluded there was sufficient evidence to sustain a finding of discrimination with regard to claims (1) and (9).2 In his decision, dated April 11, 2017, the AJ awarded Complainant $7,500 in compensatory damages. The AJ reasoned that the amount was appropriate in light of "the limited evidence provided by Complainant, the nature of discrimination and Commission precedent".3 Complainant was also granted $21,255.94 in attorney's fees and costs,4 a parking space within close proximity to her workplace, and quarterly meetings to assess her needs for reasonable accommodations. On May 2, 2017, the Agency issued a final order implementing the AJ's decision. The Agency agreed that the AJ's sanction was appropriate and properly applied when finding discrimination on claims (1) and (9). Moreover, the Agency stated that the amount of compensatory damages and attorney's fees was also proper. Complainant filed the instant appeal, challenging the AJ's award of compensatory damages. She contends that the AJ erred in failing to award at least $50,000. ANALYSIS AND FINDINGS As an initial matter, following a review of the record, we conclude that the AJ properly made a finding of discrimination with regard to claims (1) and (9) and, as a result, Complainant is entitled to an award of compensatory damages. Compensatory Damages When discrimination is found, the agency must provide the complainant with a remedy that constitutes full, make-whole relief to restore her as nearly as possible to the position she would have occupied absent the discrimination. See, e.g., Franks v. Bowman Transp. Co., 424 U.S. 747, 764 (1976); Albemarle Paper Co. v. Moody, 422 U.S. 405, 418-19 (1975); Adesanya v. U.S. Postal Serv., EEOC Appeal No. 01933395 (July 21, 1994). Pursuant to section 102(a) of the Civil Rights Act of 1991, a complainant who establishes unlawful intentional discrimination under either Title VII of the Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. § 2000e et seq. or Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq. may receive 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) as part of this "make whole" relief. 42 U.S.C. § 1981a(b)(3). To receive an award of compensatory damages, a complainant must demonstrate that he or she has been harmed as a result of an agency's discriminatory action; the extent, nature, and severity of the harm; and the duration or expected duration of the harm. Rivera v. Dep't of the Navy, EEOC Appeal No. 01934157 (July 22, 1994), req. for reconsideration denied, EEOC Request No. 05940927 (Dec. 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. Compensatory damages may be awarded for the past pecuniary losses, future pecuniary losses, and non-pecuniary losses which are directly or proximately caused by the agency's discriminatory conduct. EEOC Notice No. 915.002 at 8. Non-pecuniary Damages Non-pecuniary losses are losses that are not subject to precise quantification, i.e emotional pain, suffering, inconvenience, mental anguish, loss of enjoyment of life, injury to professional standing, injury to character and reputation, injury to credit standing, and loss of health. See EEOC Notice No. 915.002 at 10 (July 14, 1992). There is no precise formula for determining the amount of damages for non-pecuniary losses, except that the award should reflect the nature and severity of the harm and the duration or expected duration of the harm. See Loving v. Dep't of the Treas. EEOC Appeal No. 01955789 (Aug. 29, 1997). It should likewise be consistent with amounts awarded in similar cases. See Hogeland v. Dep't of Agriculture, EEOC Appeal No. 01976440 (June 14, 1999). Non-pecuniary compensatory damages are designed to remedy a harm and not to punish the Agency for its discriminatory actions. Compensatory damages should not be motivated by passion or prejudice or be "monstrously excessive" standing alone but should be consistent with the amounts awarded in similar cases. See Ward-Jenkins v. Dep't of the Interior, EEOC Appeal No. 01961483 (Mar. 4, 1999). As noted above, the AJ awarded Complainant $7,500 in non-pecuniary damages. The Agency was found to have denied Complainant the reasonable accommodation of telework for over one year. Complainant argues on appeal that she was "forced to endure considerable apprehension about her ability to remain employed . . . and work through considerable physical pain and discomfort as a result of the denied accommodation." Complainant argues that by denying her the accommodation of working from home, Complainant had to endure a commute in "painful and exhausting conditions," work in pain, and "tend to her physical issues" in public areas and restrooms. She believes that she has "demonstrated severe anguish" to support an award of at least $50,000. In response, the Agency counters that Complainant's request for six times the AJ's award is not justified and is simply arbitrary. The Agency argues that Complainant presented her case for damages at hearing and does not provide supporting evidence on appeal. The Agency asserts that while Complainant cites cases on appeal, she fails to explain how they are analogous to her situation. Instead, the Agency maintains that the facts of the instant case are similar to prior Commission cases which awarded $7,500. As set forth in the AJ's decision, Complainant has Systemic Lupus Erythematosus (SLE). She testified that as part of SLE she also suffers from lichen sclerosus, a skin condition that affects the private parts of her body. The AJ noted "the most disturbing testimony" concerned Complainant's necessary routine, while at work, to treat the lichen sclerosus. While the AJ did not describe the testimony in her decision, we find it to be informative and relevant to do so here. Relieving herself required Complainant to not only clean the affected area properly but also reapply necessary ointments and creams. This activity was easier to do in the privacy of her own home, rather than the workplace restroom. Similarly, her illnesses and medications caused stomach problems, which made it uncomfortable to share a restroom with colleagues. At home, she was able to "take care of [herself] more often and to relieve some of that pain". Also, being in the workplace and sitting for many hours exacerbated her rash. At home, she could periodically stand. Further, if she did not have to drive herself to the workplace she could reduce some of her medication and reduced the associated side-effects (i.e. sleepiness). Complainant has also been diagnosed with peripheral neuropathy, Grave's Disease, and pulmonary disorder. Walking from the parking lot to the facility caused Complainant joint pain and breathing problems, and she was able to more effectively administer her breathing treatments at home, than at the office. She testified that she experienced fear and anxiety that she would be terminated. Complainant experienced problems sleeping, headaches, disengagement from family, and higher blood pressure. Her union steward described Complainant's physical deterioration as evidenced by a noticeable loss of weight, dark circles around her eyes, and a glassed-over look. Therefore, based upon a review of the record, we find that an award of $50,000 in non-pecuniary damages is more appropriate. We find that this award is consistent with other Commission cases. See Ortiz v. United States Postal Service, EEOC Appeal No. 01A15376 (September 25, 2002) (Commission awarded $50,000 in non-pecuniary damages to a complainant, who was denied an accommodation for his disability and experienced emotional distress, sleeplessness, insomnia, depression, and ulcers); Williams. v. United States Postal Service, EEOC Appeal No. 01990520 (February 14, 2002) (Commission awarded $50,000 in compensatory damages to a complainant who was denied a reasonable accommodation for his disability and who experienced an exacerbation of a pre-existing condition, depression, and homicidal and suicidal thoughts); Smith v. United States Postal Service, EEOC Appeal No. 01981579 (September 7, 2001) (Commission awarded $40,000 in non-pecuniary damages to a complainant who was denied a reasonable accommodation for her disability and experienced, anxiety, depression, insomnia, problems concentrating, nightmares, and chest pain); Duncan v. Social Security Admin., EEOC Appeal No. 0120064557 (April 4, 2008) (Commission awarded $50,000 in non-pecuniary damages where Agency's failure to provide a reasonable accommodation for approximately a year exacerbated her carpal tunnel syndrome, and experienced difficult sleeping, and depression). CONCLUSION Accordingly, the Agency's final order is MODIFIED. Specifically, the AJ's award of damages is increased to $50,000.00. The Agency shall comply with the Order set forth below. ORDER To the extent it has not already done so, the Agency shall complete the following remedial actions within 45 days of the date this decision is issued: (1) Pay Complainant $50,000.00 in compensatory damages. (2) Pay Complainant $21,255.94 in attorney's fees and costs. (3) Pay Complainant $1,500 in attorney's fees and costs associated with filing the Second Motion for Sanctions. (4) Provide Complainant with a reserved (or daily access to) a handicapped parking space within close proximity to her assigned workplace. (5) Schedule quarterly meetings with Complainant to assess her needs for reasonable accommodations. (6) Provide four hours of EEO training on the rights and responsibilities under the Rehabilitation Act to the responsible management official (RMO).5 (7) Consider taking appropriate disciplinary action against RMO. The Commission does not consider training to be disciplinary action. The Agency shall report its decision to the Compliance Officer, including whether or not it decided to take disciplinary action, the reasons for its action, and what action was taken.6 The Agency is further directed to submit a report of compliance, as provided in the statement entitled "Implementation of the Commission's Decision." POSTING ORDER (G0617) The Agency is ordered to post at its Veterans Affairs Medical Center in Salem, Virginia, copies of the attached notice. Copies of the notice, after being signed by the Agency's duly authorized representative, shall be posted both in hard copy and electronic format by the Agency within 30 calendar days of the date this decision was issued, and shall remain posted for 60 consecutive days, in conspicuous places, including all places where notices to employees are customarily posted. The Agency shall take reasonable steps to ensure that said notices are not altered, defaced, or covered by any other material. The original signed notice is to be submitted to the Compliance Officer as directed in the paragraph entitled "Implementation of the Commission's Decision," within 10 calendar days of the expiration of the posting period. The report must be in digital format, and must be submitted via the Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). 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 (T0610) 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 your appeal with the Commission, until such time as the Agency issues its final decision on your complaint. 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 (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's signature Carlton M. Hadden, Director Office of Federal Operations July 18, 2018 __________________ Date 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 However, the AJ determined that Complainant failed to establish a prima facie case regarding claims (2) through (8). Specifically, the AJ found that Complainant did not show she was treated less favorably that comparative employees or any nexus between her protected bases and the Agency's actions. Further, the AJ noted that Complainant did not provide the Agency with requested information, and consequently her leave was denied. Complainant has not contested the AJ's determinations on appeal. 3 The AJ noted that Complainant did not submit any out-of-pocket expenses and therefore did not award pecuniary damages. 4 This award is in addition to the $1,500 previously awarded related to costs associated with the filing of the Motions for Sanctions. 5 The Agency included this remedy in its final order and therefore we shall incorporate it in our decision. The final order identified the RMO, previously employed at the VAMC in Salem, as the current Billing Supervisor at the Consolidation Patient Account Center for the Northeast VAMC in Lebanon, Pennsylvania. 6 While not part of the AJ's award, this remedy was part of the Agency's final order. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ 2 0120172149 9 0120172149