07A20130
03-15-2004
Aileen Baltimore, Complainant, v. Anthony J. Principi, Secretary, Department of Veterans Affairs, Agency.
Aileen Baltimore v. Department of Veterans Affairs
07A20130
March 15, 2004
.
Aileen Baltimore,
Complainant,
v.
Anthony J. Principi,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 07A20130
Agency No. 2001-65
Hearing No. 140-A0-8216X
DECISION
Introduction
Concurrent with its April 20, 2002 final order, the agency filed a timely
appeal which the Commission accepts pursuant to 29 C.F.R. � 1614.405.
The agency accepted an EEOC Administrative Judge's (AJ) finding of
discrimination based on race. However, on appeal, the agency requests
that the Commission affirm its rejection of the AJ's remedial award.
For the following reasons, the Commission reverses the agency's final
order (FAD).
Background
Complainant was employed as a GS-5 Program Support Assistant at a
South Carolina medical center of the agency. A Primary Care Manager
(S1) was complainant's first level supervisor from October 1998 to
September 1999. In September, a Primary Care Team Leader (S2) assumed
the responsibility of complainant's immediate supervision. At that
time, S1 became complainant's second level supervisor and served in said
position until she left the South Carolina facility on December 31, 1999.
In November 1999, complainant filed a formal EEO complaint with the
agency alleging S1 harassed her on the bases of race (African-American)
and sex (female) when between May 1999 and September 1999, S1 (1) allowed
a Caucasian, male coworker to work overtime and compensatory time without
prior management approval, (2) denied complainant the opportunity for
assignment to a Means Test Clerk position, (3) assigned complainant to
numerous work areas, and (4) denied complainant's request for a change
in duty. Complainant alleged that the aforementioned actions created a
hostile work environment. Further, complainant alleged that S1 ignored
and humiliated her on a consistent basis. Complainant noted that when
S2 became her supervisor, S2 frequently consulted S1 for approval on
work matters.
At the conclusion of the investigation, complainant was informed
of her right to request a hearing before an AJ or an immediate FAD.
Complainant elected the former.
At the hearing, complainant testified that she began seeing her physician
weekly in 1998 for stress. Complainant stated that, in September 1999,
her gynecologist referred her to stress management classes at a family
life center for six months. Complainant also stated that she sought
assistance from the agency's Employee Assistance Program. Further,
complainant stated that she was referred to a psychiatrist in 1999 and
diagnosed with depression due to her job. Complainant stopped seeing
the psychiatrist due to personal differences and continued to see her
physician. Complainant's physician referred to complainant's marital
problems in his June 2000 documentation and to job-related stress in his
documentation from September 2000 through 2001. Complainant testified that
her physician referred her to another psychiatrist in May 2001 because
he could no longer attend to her. At that time, complainant stated that
she began seeing the psychiatrist once a month and was later referred to
a psychologist for more frequent counseling. Complainant testified that
she has suffered for several years, which includes experiencing loss of
consortium, lack of interest in any activity, unexplained crying spells,
isolation from family and friends, lack of appetite, and abdominal pains.
The medical evidence of record showed that complainant was prescribed
several medications, including Zoloft for depression. Further, the record
showed that complainant was hospitalized in June 2001 for several days for
severe depression and hypertension. The hospitalization documentation
cited job-related stress and referred to complainant as living with her
estranged husband. At the hearing, complainant rejected the assertion
that she and her husband were estranged and stated that previously she
accepted the documentation's error to prevent an administrative delay.
After her hospitalization, complainant was diagnosed with Adjustment
Disorder with Depressed Mood. A psychiatrist's report of August 7, 2001
cited job pressure and suicidal and homicidal ideation. Specifically,
the report stated that complainant visualized her supervisor hanging
on a wall with a nail through her neck and bleeding. At the hearing,
complainant testified that her vision referred to S1 and subsequent
supervisors. The psychiatrist's report indicated that complainant was
paranoid with her supervisor and coworkers and stated that she could not
return to her agency job due to paranoid delusions and the potential to
become dangerous to others. The psychiatrist deemed complainant disabled.
Complainant testified that she applied and was approved for disability
retirement in late 2001. Also at the hearing, complainant presented an
invoice for $230.00 for medical appointments in 2000 and 2001. Also,
complainant testified that the nature of her job can be stressful and
that her mother had been ill.
Following the hearing, the AJ found that complainant showed that S1
harassed her based on race. In reaching this conclusion, the AJ found
that S1 was not a credible witness during the hearing as she had selective
memory and the record showed that she was untruthful. In addition, the
AJ relied heavily on the testimony of a former supervisor who stated that
S1 treated African-Americans different from Caucasians. The AJ awarded
complainant restoration of sick leave used between January 1999 and
June 19, 2001; reimbursement for leave without pay used between June 20,
2001 and November 23, 2001; medical expenses in the amount of $230.00 for
her 2000 physician's visits; loss of future earnings up to $240,000.00,
to be calculated by the agency, because complainant found the need to
accept disability retirement; and $60,000.00 for pain and suffering.
The agency's FAD accepted the AJ's finding of discrimination based on
race, but rejected the AJ's remedial award. On appeal, the agency argues
that the evidence of record shows that complainant failed to show a causal
connection to her use of leave, medical expenses, and pain and suffering.
Specifically, the agency stated that complainant's stress was attributed
to other external factors. The agency noted that S1 was no longer in
complainant's supervisory chain or at the facility as of December 31,
1999.
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.
In the case at hand, the issue before the Commission is limited to
the AJ's remedial award. When discrimination is found, the agency
must provide the complainant with a remedy that constitutes full,
make-whole relief to restore the complainant as nearly as possible to
the position she would have occupied absent the discrimination. See,
e.g., Franks v. Bowman Transportation Co., 424 U.S. 747, 764 (1976);
Albemarle Paper Co. v. Moody, 422 U.S. 405, 418-19 (1975).
We note that the AJ's remedy seems to address a hostile work environment
beyond incidents (1) - (4). However, at the hearing, the AJ specifically
stated that the issue before her was harassment only as it related to
the four aforementioned incidents. Also, the AJ's remedies suggest
that she failed to consider that factors other than S1's discriminatory
harassment stressed complainant. In addition, we find the medical
documentation of record and the testimony of complainant disjointed.
Thus, our decision will modify the AJ's award as appropriate.
The AJ awarded restoration of sick leave used between January 1999 and
June 19, 2001 and reimbursement for leave without pay used between
June 20, 2001 and November 23, 2001 as equitable relief. However,
in her decision, the AJ failed to explain why she awarded complainant
the restoration of leave used four months before the incidents found
to be discriminatory or used in response to problems with other agency
officials or external stressors. In addition, complainant failed to
show a causal connection between S1's discriminatory harassment and
complainant's use of leave before such time and a significant amount
of time after S1's departure. The Commission finds restoration of sick
leave between May 1999 and December 2000, less a reduction of one third
(1/3), appropriate. This time period considers that S1 remained in
complainant's supervisory chain through December 1999 and complainant may
have suffered some residual effects after S1's departure. This period
and the one third reduction also consider that the record contains
medical documentation citing external stressors as early as June 2000.
S1's departure and the medical documentation citing external factors
weaken the causal connection between S1's discriminatory actions and
complainant's use of leave as it shows S1's discriminatory actions were
not the sole cause of complainant's losses.
Section 102(a) of the Civil Rights Act of 1991 (the CRA 1991), Stat. 1071,
Pub. L. No. 102-166, codified as 42 U.S.C. � 1981a, authorizes an award of
compensatory damages as part of the "make whole" relief for intentional
discrimination in violation of Title VII of the Civil Rights Act of
1964, as amended. Section 1981a(b)(2) 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, is $300,000. 42 U.S.C. � 1981a(b)(3)(D).
Compensatory damages are further limited to the amount necessary to
compensate an injured party for actual harm caused by the agency's
discriminatory action, even if the harm is intangible. Damiano
v. U.S. Postal Service, EEOC Request No. 05980311 (February 26, 1999).
Compensatory damages should consider the extent, nature, and severity
of the harm and the length of time the injured party endured the harm.
Id.; Enforcement Guidance: Compensatory and Punitive Damages Available
under Section 102 of the Civil Rights Act (Guidance), EEOC Notice 915.002
(July 14, 1992) at 11-12, 14.
The agency is only responsible for those damages that are shown to
be caused by the agency's discriminatory conduct. Carle v. Dep't of
the Navy, EEOC Appeal No. 01922369 (January 5, 1993). To recover
damages, the complainant must show that the agency's actions found
to be discriminatory were the cause of the harm or loss. Guidance.
Past pecuniary losses are out-of-pocket expenses that occurred as a result
of the discriminatory conduct prior to the date of the resolution of the
damage claim. See Guidance at 10. Whereas, future pecuniary losses are
out-of-pocket expenses that are likely to occur after resolution. Id.
Non-pecuniary losses are intangible injuries caused by an agency's
discriminatory conduct. See Guidance at 13-14.
The AJ awarded complainant medical expenses in the amount of $230.00 for
medical visits in 2000; loss of future earnings up to $240,000.00, to be
calculated by the agency; and $60,000.00 for pain and suffering. We have
carefully reviewed the record and have determined that the substantial
evidence of record supports the AJ's award for future earning losses,
but for a lesser amount than the AJ awarded. We affirm the AJ's award
of $230.00 for medical expenses and $60,000.00 for pain and suffering.
S1 was complainant's first level supervisor from October 1998 through
September 1999 and was complainant's second level supervisor from
September 1999 to December 31, 1999, when she left the South Carolina
facility. The evidence of record indicates that complainant continued to
cite difficulties with her supervisor and a stressful job through the year
2001 as well as marital problems and an ill mother. The AJ found that
S1's actions between May 1999 and September 1999 were discriminatory.
Medical documentation suggests that complainant had difficulties with
her present supervisor and coworkers which were not part of the finding
of discrimination. Complainant was approved for disability retirement for
mental illness in 2001. Based on the foregoing, we find that complainant
is entitled to loss of future earnings. However, we find further that
the record shows that S1's discriminatory actions were a contributing
factor, but not the sole cause, of complainant's retirement. Thus,
we find that complainant is entitled to future earnings losses up to
$120,000.00, rather than $240,000.00 as the AJ awarded. Also, we find
that complainant is entitled to the $230.00 in medical expenses as the
documentation supports her claim.
Notwithstanding the above reduction of future pecuniary losses, the
Commission finds that the substantial evidence of record supports the
AJ's award of $60,000.00 in non-pecuniary losses. After considering
medical documentation and complainant's testimony that she suffered
stress, isolation, relationship strain, depression, and physical
manifestations of emotional distress due to the agency's actions, we
find $60,000.00 appropriate. See, e.g., Arreola v. Dep't of Justice,
EEOC Appeal No. 01A03342 (January 17, 2002)($52,000.00 in non-pecuniary
damages where the complainant and relatives stated that complainant
suffered anxiety, isolation, depression, stress, humiliation, and injury
to reputation when the agency terminated him); Campos v. Dep't of Justice,
EEOC Appeal No. 01A03368 (January 25, 2002) ($52,000.00 in non-pecuniary
damages where the complainant and relatives stated that complainant
experienced relationship strain, isolation, stress, humiliation,
depression and injury to reputation as a result of his termination);
Morra-Morrison v. U.S. Postal Service, EEOC Appeal No. 01976222 (May 12,
2000) ($60,000 award for non-pecuniary damages where the agency failed
to reasonably accommodate complainant and terminated her more than once,
which resulted in depression, anxiety, sleeplessness, low self-esteem,
marital problems, and alienation).
Therefore, after a careful review of the record, including arguments
and evidence not specifically discussed in this decision, the Commission
reverses the agency's final order and remands the matter to the agency
to take corrective action in accordance with this decision and the
Order below.
ORDER
The agency is ordered to take the following remedial action within ninety
(90) calendar days after the date this decision becomes final, unless
otherwise noted below:
1. The agency shall restore two thirds (2/3) of the sick leave used by
complainant between May 1999 and December 2000, less appropriate offsets.
2. The agency shall calculate complainant's loss of future earnings,
up to $120,000.00. Within ninety (90) calendar days after the date
this decision becomes final, the agency shall conduct a supplemental
investigation of the loss of future earnings issue. The complainant
shall cooperate in the agency's efforts to calculate loss of future
earnings, and shall provide all relevant information requested by
the agency. No later than sixty (60) calendar days after the agency's
receipt of complainant's submissions for the supplemental investigation,
the agency shall issue a final agency decision addressing the issue
of loss of future earnings. If there is a dispute regarding the exact
amount of future earnings losses, 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 enforcement or clarification must
be filed with the Compliance Officer, at the address referenced in the
statement entitled �Implementation of the Commission's Decision.�
3. The agency shall pay complainant $230.00 in medical expenses.
4. The agency shall pay complainant $60,000.00 in non-pecuniary,
compensatory damages.
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 of the
agency's actions in accordance with this order.
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
March 15, 2004
__________________
Date