Hermila B.,1 Complainant,v.Robert Wilkie, Secretary, Department of Veterans Affairs, Agency.

Equal Employment Opportunity Commission

Feb 7, 2019

0120171916 (E.E.O.C. Feb. 7, 2019)

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

Hermila B.,1
Complainant,

v.

Robert Wilkie,
Secretary,
Department of Veterans Affairs,
Agency.

Appeal No. 0120171916

Hearing No. 460-2014-00010X

Agency No. 2003-0580-2013100507

DECISION

Complainant filed an appeal from an Agency’s final decision dated March 23, 2017, concerning
an award of compensatory damages which was awarded after a finding of employment
discrimination. For the following reasons, we AFFIRM the Agency’s final decision.

BACKGROUND

The record indicates that Complainant was a Physical Therapy Technician, GS-5, at the
Agency’s VA Medical Center (VAMC) in Houston, Texas. On January 29, 2013, Complainant
filed her complaint alleging discrimination based on race (African-American), color (black), and
age (over 40) when:

(1) From January 2012, through the present, a Physical Therapist (PT1) has followed her
around the facility;

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.
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(2) In July 2012, she reported to her supervisor (S1), a Supervisory Rehabilitation Therapist,
that PT1 had been following her around the facility, and S1 responded by stating, “Maybe
it’s your perception:”

(3) On October 10, 2012, S1 failed to recommend her for a monetary award even though S1
recommended an award for the rest of the department;

(4) On November 7, 2012, she learned that Human Resources determined that she did not
meet the minimum requirements to be referred for the position of Patient Relations
Assistant, GS-07, vacancy # JB-12-APA-762618;

(5) On November 9, 2012, PT1 listened to a conversation that she was having and then
reported the content of the conversation to S1;

(6) On January 11, 2013, PT1 stated to her in a sarcastic tone, “Isn’t it a little early for you to
be leaving?”

(7) On January 11, 2013, she learned that a Physical Therapist (PT2) and a Program Support
Assistant (PS1) accessed her medical file without her authorization; and

(8) On January 14, 2013, she learned that she was scheduled to work with PT1 on January
20, 2013, even though she had requested not to work with PT1.

At the conclusion of the investigation, Complainant requested a hearing before an EEOC
Administrative Judge (AJ). On March 11, 2014, the AJ, without a hearing, issued a decision
finding no discrimination. On March 20, 2014, the Agency issued is final order adopting the
AJ’s decision. Complainant appealed the Agency’s decision. The Commission, in EEOC
Appeal No. 0120142156 (June 23, 2016), request for reconsideration denied, EEOC Request No.
0520160456 (September 15, 2016), affirmed the Agency’s final order that Complainant was not
subjected to harassment or disparate treatment based on race, color, or age but found there was a
per se violation of the Rehabilitation Act when her coworkers (PT2 and PS1) accessed her
VAMC patient records without a valid business-related reason for doing so, described in claim
(7). The Commission ordered the Agency to provide Complainant with make-whole relief to
include compensatory damages for the subject violation.

On March 23, 2017, the Agency issued its final decision awarding Complainant $7,000.00 in
nonpecuniary, compensatory damages. Complainant argued to the Agency that she should be
awarded $87,000.00 which was derived from $1,500.00 per access of her medical records and
the records were accessed 58 occasions ($1,500.00 x 58 = $87,000.00). On appeal, Complainant
requests the reduced amount of $84,000.00.

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ANALYSIS AND FINDINGS

Initially, the Agency found and we agree that Complainant failed to provide any evidence to
show that she incurred medical expenses or pecuniary losses. On appeal, Complainant does not
dispute this. Thus, we find that Complainant is not entitled to any pecuniary damage award.

The Commission notes that damage awards for emotional harm are difficult to determine and
that there are no definitive rules governing the amount to be awarded in given cases. A proper
award must meet two goals: that it not be "monstrously excessive" standing alone, and that it be
consistent with awards made in similar cases. See Cygnar v. City of Chicago, 865 F.2d 827, 848
(7th Cir. 1989). Section 102(a) of the 1991 Civil Rights Act authorizes an award of
compensatory damages for all post-act pecuniary losses, and for non-pecuniary losses, such as,
but not limited to, emotional pain, suffering, inconvenience, mental anguish, loss of enjoyment
of life, injury to character and reputation, and loss of health. To receive an award of
compensatory damages, Complainant must demonstrate that he has been harmed as a result of
the Agency’s discriminatory action; the extent, nature and severity of the harm; and the duration
or expected duration of the harm. Rivera v. Department of the Navy, EEOC Appeal No.
01934157 (July 22, 1994), request for reconsideration denied, EEOC Request No. 05940927
(December 8, 1995); EEOC’s Enforcement Guidance: Compensatory and Punitive Damages
Available Under Section 102 of the Civil Rights Act of 1991, EEOC Notice No. 915.002 at 11-
12, 14 (July 14, 1992) (“Guidance”). Complainant is required to provide objective evidence that
will allow an agency to assess the merits of her request for damages. See Carle v. Department of
the Navy, EEOC Appeal No. 01922369 (January 5, 1993). The award should take into account
the severity and duration of the harm. Carpenter v. Department of Agriculture, EEOC Appeal
No. 01945652 (July 17, 1995).

To support her damages, Complainant submitted her own affidavit and statement. Therein,
Complainant stated that: she sustained Post-Traumatic Stress Disorder (PTSD) and injured her
back while in the military; she had bilateral hip pain, swollen legs, swollen ankles, and
numbness; and she was taking medication for her blood pressure and to alleviate the pain and
swelling. Complainant also indicated that the Agency’s discrimination caused her stress,
anxiety, and strain in her personal relationship with her two sons, feeling alone, loss of self-
esteem, fearful of her work environment, insecurity of her job, losing faith or trust in the VA
health system, purposely avoiding coworkers, remaining in isolation throughout the workday,
and feeling overlooked for job promotions. Complainant also submitted her coworker’s
statement indicating that she was extremely upset after finding out about the Agency’s
discrimination. Complainant, however, did not provide a doctor’s statement to support her
damages.

In determining nonpecuniary, compensatory damages, the Commission strives to make damage
awards for emotional harm consistent with awards in similar cases. After considering the awards
in similar cases and all of the relevant factors discussed above, we agree with the Agency that
$7,000.00 was a reasonable award of nonpecuniary, compensatory damages to Complainant for
her symptoms, stress and anxiety, as well as the impact the discrimination had upon her
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emotional wellbeing. See Complainant v. Department of Treasury, EEOC Appeal No.
0120133266 (February 11, 2015) ($7,000.00 in nonpecuniary, compensatory damages for harm
based on no medical evidence where complainant showed that she suffered anxiety, depression,
fearful of more seizures, unstable blood pressure, feeling desperation, humiliation, sleeplessness,
and crying spells when the agency failed to provide accommodation); Complainant v.
Department of Veterans Affairs, EEOC Appeal No. 01950342 (June 13, 1997) ($5,000.00
awarded based on sparse medical evidence of complainant’s near nervous breakdown).

On appeal, Complainant cited three cases wherein which the Commission awarded $100,000.00,
$75,000.00, or $50,000.00 in nonpecuniary, compensatory damages. However, we find that
these cases are not similar cases to the instant case since complainants in those cases submitted
supporting medical evidence in addition to their testimony. In the instant case, Complainant did
not submit medical support for her nonpecuniary damages. Complainant further maintains that
her damages should be calculated based on a number of occasions her medical records were
accessed by coworkers. After a review of the record, we find that other than her mere assertions,
Complainant provides no evidence that her suggested formula was utilized in other similar cases
in determining nonpecuniary, compensatory damages. Based on the foregoing, we find that the
Agency’s award of $7,000.00 in compensatory damages is proper.2

CONCLUSION

Accordingly, the Agency’s final order is AFFIRMED. The Agency is directed to implement the
following corrective action in accordance with the ORDER herein.

ORDER

The Agency, within 60 days of the date this decision is issued, to the extent that it has not
already done so, shall pay Complainant $7,000.00 for nonpecuniary, compensatory damages.

The Agency is further directed to submit a report of compliance in digital format as provided in
the statement entitled "Implementation of the Commission's Decision." The report shall be
submitted via the Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g).

IMPLEMENTATION OF THE COMMISSION’S DECISION (K0618)
Under 29 C.F.R. § 1614.405(c) and §1614.502, compliance with the Commission’s corrective
action is mandatory. Within seven (7) calendar days of the completion of each ordered
corrective action, the Agency shall submit via the Federal Sector EEO Portal (FedSEP)
supporting documents in the digital format required by the Commission, referencing the
compliance docket number under which compliance was being monitored. Once all compliance
is complete, the Agency shall submit via FedSEP a final compliance report in the digital format
required by the Commission. See 29 C.F.R. § 1614.403(g).

2 On appeal, Complainant raises new and/or subsequent incidents which are not at issue.
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The Agency’s final report must contain supporting documentation when previously not
uploaded, and the Agency must send a copy of all submissions to the Complainant and his/her
representative.
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.
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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

February 7, 2019
Date