Complainant,v.Eric K. Shinseki, Secretary, Department of Veterans Affairs, Agency.

Equal Employment Opportunity Commission

Mar 7, 2013

0720120033 (E.E.O.C. Mar. 7, 2013)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013

,
Complainant,

v.

Eric K. Shinseki,
Secretary,
Department of Veterans Affairs,
Agency.

Appeal No. 0720120033

Hearing No. 430-2010-00079X

Agency No. 200I-0544-2009103064

DECISION

Following its April 6, 2011 Final Order, the Agency filed an appeal of an EEOC
Administrative Judge's (AJ) order awarding remedies, following a finding by the AJ that the
Agency engaged in reprisal discrimination, in violation of Title VII of the Civil Rights Act of
1964, as amended, 42 U.S.C. § 2000e et seq. The Agency filed its appeal with the
Commission on April 27, 2011. Complainant also responded to the Agency’s appeal on May
6, 2011, requesting that the AJ’s award of compensatory damages be upheld. The Agency
rejected the AJ’s award of $75,000 in non-pecuniary, compensatory damages as relief for the
discrimination shown to have occurred. For the following reasons, the Commission AFFIRMS
the Agency’s Final Order finding discrimination and order for relief.

BACKGROUND

At the time of events giving rise to this complaint, Complainant was a Social Worker and
applicant for the position of Chief of Social Work at the Agency's facility in Columbia, South
Carolina. Complainant filed an EEO complaint alleging that the Agency discriminated against
her on the bases of race (African American), sex (female), age (55), and in reprisal for prior
protected activity when:

1. On April 29, 2009, Complainant was not selected for the position of Chief of
Social Work, in the William Jennings Bryan Dorn Veterans Affairs Medical
Center.

2. Complainant was subjected to harassment, which included the following
incidents:
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a) Since July 2008, Complainant was accused of causing problems
and being rude to others; and

b) In July 2008, Complainant was accused of forcing the previous
Chief of Social Work to retire.

At the conclusion of the investigation, the Agency provided Complainant with a copy of the
report of investigation and notice of her right to request a hearing before an EEOC
Administrative Judge (AJ). Complainant requested a hearing, and the AJ held a hearing on
January 25, 2010 ,and January 26, 2010.

On March 7, 2011, the AJ issued a decision in which she found that Complainant was
subjected to reprisal discrimination. The AJ found that Complainant did not show that she was
subjected to discrimination on any other basis and that she did not prove that she was subjected
to harassment. The AJ ordered that: Complainant be placed in the subject position or a
similar one; back pay and other benefits; training of responsible management officials, posting
a notice stating that a violation of Title VII occurred; and $75,000 in non-pecuniary,
compensatory damages.

The Agency issued a Final Order dated April 4, 2011, in which the Agency adopted the AJ’s
finding regarding reprisal discrimination (claim (1)) and also her finding of no discrimination
on any other basis (claims 1 and 2) and no harassment (claim (2)). The Agency rejected the
AJ’s award of compensatory damages, but agreed to implement the other relief ordered.

On appeal, the Agency states that the AJ’s award of compensatory damages is excessive and
that an award of $25,000 is more commensurate with the injuries suffered by Complainant in
this case. On appeal, Complainant argues that the AJ’s award of compensatory damages was
appropriate. Complainant has not appealed the findings of no discrimination and we shall not
address such findings.

ANALYSIS AND FINDINGS

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). In West v. Gibson, 527 U.S. 212 (1999), the Supreme Court held that Congress
afforded the Commission the authority to award compensatory damages in the administrative
process. For an employer with more than 500 employees, such as the Agency, the limit of
liability for future pecuniary and non-pecuniary damages is $300,000. 42 U.S.C. §1981a(b)(3).

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In a claim for compensatory damages, a complainant must demonstrate, through appropriate
evidence and documentation, the harm suffered as a result of the Agency's discriminatory
action; the extent, nature, and severity of the harm suffered; and the duration or expected
duration of the harm. Rivera v. Dep't of the Navy, EEOC Appeal No. 01934156 (July 22,
1994); Notice at 11-12, 14; Carpenter v. Dep't of Agric., EEOC Appeal No. 01945652 (July
17, 1995). Objective evidence in support of a claim for non-pecuniary damages claims includes
statements from complainant and others, including family members, co-workers, and medical
professionals. See Compensatory and Punitive Damages Available Under Section 102 of the
Civil Rights Act of 1991, EEOC Notice No. N915.002 (July 14, 1992) (hereafter referred to
as “Notice”); Carle v. Dep't of the Navy, EEOC Appeal No. 01922369 (Jan. 5, 1993).

The Commission has reviewed the entire record, including the statements made by
Complainant at the time of the hearing in this matter regarding her humiliation, emotional
distress, anger, helplessness, and apprehension of continued retaliatory action as long as she
remains employed by the Agency. The Commission finds the AJ's award of $75,000 is
excessive and that the Agency’s request that the award be modified to $25,000 is reasonable
and appropriate. This amount takes into account the severity of the harm suffered, and is
consistent with prior Commission precedent. Washington v. Dep’t of Veterans Affairs, EEOC
Appeal No. 07A50033 (March 25, 2005) ($25,000 awarded for discriminatory non-selection
where complainant, in his statement, detailed that he suffered from anxiety, irritability, mood
swings, had problems sleeping, and had difficulty concentrating; finding that complainant had
to endure embarrassment and humiliation for over two years); Baker v. Dep’t of Veterans
Affairs, EEOC Appeal No. 07A30075 (August 7, 2003) ($25,000 awarded for discriminatory
non-selection where complainant produced evidence that the discriminatory non-selection
caused her to be withdrawn and depressed and was among the factors that contributed to her
emotional distress); Dixon v. Dep’t of Justice, EEOC Appeal No. 07A50001 (April 22, 2005)
($25,000 awarded for discriminatory non-selection where complainant experienced emotional
harm and mental distress which impacted her personal and professional life; complainant’s
injuries were corroborated by a statement from her partner).

We shall order the Agency to comply with the AJ’s ordered remedial relief except that the
amount of compensatory damages to be awarded shall be $25,000. Furthermore, we add the
relief of the consideration of discipline for responsible management officials and make other
slight modifications to the relief.

CONCLUSION

Based on a thorough review of the record and the contentions on appeal, the Commission
AFFIRMS the Agency’s Final Order and REMANDS this matter to the Agency to implement
the remedial relief as set forth in the ORDER herein.

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ORDER

The Agency shall take the following remedial actions to the extent that it has not already done
so:

1. Within 60 days of the date this decision becomes final, the Agency shall pay
Complainant non-pecuniary, compensatory damages in the amount of $25,000.

2. Within 60 days of the date this decision becomes final, the Agency shall place
Complainant in the position of Chief of Social Work, or a position substantially
equivalent to the one for which she was not selected, unless Complainant indicates that
he would prefer to remain in his present position.

3. Within 60 days of the date this Decision becomes final, the Agency shall pay
Complainant back pay beginning on the date of the appointment of the selectee in
accordance with the Back Pay Act. The Agency shall determine the appropriate
amount of back pay, with interest, and other benefits due Complainant, pursuant to 29
C.F.R. § 1614.501. 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. 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 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."

4. Within 180 days of the date this decision becomes final, the Agency shall provide 16
hours of EEO training to the responsible management officials regarding their
responsibilities under EEO laws and the prohibition against retaliation for protected
EEO activity.

5. Within 180 days of the date this decision becomes final, the Agency shall consider
taking appropriate disciplinary action against the responsible management officials. 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 any of the responsible management officials have
left the Agency's employment, then the Agency shall furnish documentation of their
departure date(s).

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.
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POSTING ORDER (G0610)

The Agency is ordered to post at its Dorn Veterans Affairs Medical Center facility in
Columbia, South Carolina copies of the attached notice. Copies of the notice, after being
signed by the Agency's duly authorized representative, shall be posted by the Agency within
thirty (30) calendar days of the date this decision becomes final, and shall remain posted for
sixty (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 ten (10) calendar days of the
expiration of the posting period.

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 (M0610)

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:

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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 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 77960, Washington, DC 20013. 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 (Z0610)

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 from the Court that the Court appoint an attorney to represent you
and that the Court also 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
with the Court does not extend your time in which to file a civil action. Both the request and
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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 7, 2013
Date