U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Bernardo C.,1 Complainant, v. David J. Shulkin, Secretary, Department of Veterans Affairs, Agency. Appeal No. 0120150213 Hearing No. 443-2013-00029X Agency No. 200J-0005-2012101163 DECISION On October 15, 2014, Complainant filed an appeal, pursuant to 29 C.F.R. § 1614.403(a), from the Agency's September 15, 2014, final order concerning his 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 Commission AFFIRMS the Agency's final order which fully implemented the Equal Employment Opportunity Commission's Administrative Judge's (AJ) finding of discrimination and hostile work environment based on disability and reprisal when Complainant was not provided a reasonable accommodation. ISSUES PRESENTED The issue presented is whether the AJ erred in not consolidating Complainant's claim of constructive discharge with the instant case and whether there was error with regard to the amount of compensatory damages awarded. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as an Information Technology Specialist at the Agency's Office of Technology in Sioux Falls, South Dakota. He alleged that he was subjected to discrimination and a hostile work environment on the bases of disability and reprisal when the Agency did not provide him with a reasonable accommodation for his disability. Following a hearing, the AJ issued a bench decision in favor of Complainant. Specifically, the AJ found that the Complainant first participated in protected activity as early as December 2008, when he first requested reasonable accommodation for his breathing difficulties. The AJ determined that Complainant was discriminated against, on the bases of disability and reprisal, when his request for sick leave was denied on November 14, 2011; when his request for assistance was denied on November 23, 2011; when he was required to report daily to his supervisor beginning in 2011; and when he was placed on a PIP in October 2011. The AJ awarded Complainant $15,000.00 in nonpecuniary compensatory damages. The Agency issued a final order that accepted and fully implemented the AJ's decision finding that Complainant proved that the Agency subjected him to discrimination as alleged. CONTENTIONS ON APPEAL On appeal, Complainant contends that the AJ erred in not consolidating his constructive discharge claim with the instant complaint. Complainant maintains that he talked about his removal during the investigation; therefore the investigator should have realized that he was raising a claim of constructive discharge. He also made this argument at the hearing. Complainant also maintains that he should be returned to his prior position as part of "make whole" relief. Additionally, Complainant contends that the AJ erred in awarding him only $15,000.00. He maintains that a nonpecuniary award in the $150,000.00 - $200,000.00 range would be more appropriate and in line with other cases. In response, the Agency maintains that the AJ properly analyzed the case and made the appropriate decision. Specifically, with regard to Complainant's constructive discharge claim, the Agency explains that on May 18, 2012, Complainant's immediate supervisor proposed his removal for an alleged breach of security. Complainant was given the opportunity to respond to the proposed removal but did not. Instead, on June 15, 2012, he resigned his position. The AJ found that Complainant's resignation was unrelated to his allegation that he was denied a reasonable accommodation but was in response to the alleged breach of security charge. As such, the Agency maintains that Complainant was not entitled to reinstatement to his position. The Agency also contends that the AJ awarded the appropriate amount of nonpecuniary compensatory damages and that the cases provided by Complainant were not analogous to the issues presented in his complaint. ANALYSIS AND FINDINGS Pursuant to 29 C.F.R. § 1614.405(a), all post-hearing factual findings by an AJ will be upheld if supported by substantial evidence in the record. Substantial evidence is defined as "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Universal Camera Corp. v. National Labor Relations Board, 340 U.S. 474, 477 (1951) (citation omitted). A finding regarding whether or not discriminatory intent existed is a factual finding. See Pullman-Standard Co. v. Swint, 456 U.S. 273, 293 (1982). An AJ's conclusions of law are subject to a de novo standard of review, whether or not a hearing was held. An AJ's credibility determination based on the demeanor of a witness or on the tone of voice of a witness will be accepted unless documents or other objective evidence so contradicts the testimony or the testimony so lacks in credibility that a reasonable fact finder would not credit it. See EEOC Management Directive 110, Chapter 9, at § VI.B. (Aug. 5, 2015). ANALYSIS AND FINDINGS At the outset, we note that the parties are not contesting the issues on which the AJ found discrimination and which were adopted by the Agency in its final order. We do find that the record contains substantial evidence in support of the AJ's determination that Complainant resigned his position due to fear of termination as a result of matters that were unrelated to the Agency's failure to provide a reasonable accommodation. As such, we agree that he is not entitled to reinstatement as part of make whole relief. The central question in a constructive discharge case is whether the employer, through its unlawful discriminatory behavior, made the employee's working conditions so difficult that any reasonable person in the employee's position would feel compelled to resign. Carmon-Coleman v. Dep't of Def., EEOC Appeal No. 07A00003 (Apr. 17. 2002). The Commission has established three elements which an employee must prove to substantiate a claim of constructive discharge: (1) a reasonable person in the employee's position would have found the working conditions intolerable; (2) conduct that constituted discrimination against the employee created the intolerable working conditions; and (3) the employee involuntary resignation resulted from the intolerable working conditions. See Walch v. Dep't of Justice, EEOC Request No. 05940688 (Apr. 13, 1995). Upon review, we find that Complainant did not establish these elements. Like the AJ, we find that Complainant resigned due to a matter that was unrelated to the discrimination to which he was subjected. Finally, we find that Complainant provided no persuasive evidence establishing that the AJ erred by only awarding him $15,000.00 in compensatory damages. We find that the cases he cited are not analogous to his complaint or his damages. Moreover, we note that non-pecuniary compensatory damages are designed to remedy the harm caused by the discriminatory event rather than to punish an agency for the discriminatory action. In this case, we find that the AJ's award in the instant case was not motivated by passion or prejudice nor do we find that is "monstrously excessive" standing alone or inconsistent with the amounts awarded in similar cases. See Ward-Jenkins v. Dep't of the Interior, EEOC Appeal No. 01961483 (Mar. 4, 1999). CONCLUSION Accordingly, we AFFIRM the Agency's final order which fully implemented the AJ's finding of discrimination. ORDER The Agency is ordered to take the following remedial actions within one hundred and twenty (120) calendar days of the date this decision is issued: 1. The Agency is ordered to pay to Complainant $15,000.00 in non-pecuniary damages. 2. The Agency shall provide at least eight hours of in-person EEO training to the responsible management officials identified in the complaint that were involved in denying Complainant a reasonable accommodation. 3. The Agency shall consider taking appropriate disciplinary action against the responsible management officials identified. The Agency shall report its decision to the Compliance Officer referenced herein. If the Agency decides to take disciplinary action, it shall identify the action taken. If the Agency decides not to take disciplinary action, it shall set forth the reason(s) for its decision not to impose discipline. If the responsible identified management officials have left the Agency's employment, the Agency shall furnish documentation of the departure date(s). 4. 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. POSTING ORDER (G0914) The Agency is ordered to post at its facilities in Sioux Falls, South Dakota, 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 becomes final, 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 at the address cited in the paragraph entitled "Implementation of the Commission's Decision," within 10 calendar days of the expiration of the posting period. ATTORNEY'S FEES (H0610) If Complainant has been represented by an attorney (as defined by 29 C.F.R. § 1614.501(e)(1)(iii)), he 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 (K0610) 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 77960, Washington, DC 20013. 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 (M0416) 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), 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. The requests 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 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 (S0610) 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 (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 _2/16/17_________________ 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 0120150213 2 0120150213