0120112305
09-19-2012
John R. Sartini, Complainant, v. Eric K. Shinseki, Secretary, Department of Veterans Affairs (Veterans Health Administration), Agency.
John R. Sartini,
Complainant,
v.
Eric K. Shinseki,
Secretary,
Department of Veterans Affairs
(Veterans Health Administration),
Agency.
Appeal No. 0120112305
Agency No. 200H06932009104151
DECISION
On March 24, 2011, Complainant filed an appeal from the Agency's February 25, 2011 final decision concerning an award of compensatory damages pursuant to 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 modifies the Agency's final decision.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Housekeeping Aide at the Wilkes-Barre, Pennsylvania Veterans Affairs Medical Center (VAMC). On November 4, 2009, Complainant filed an EEO complaint alleging that the Agency discriminated against him on the bases of disability (lower lumbar injury) and in reprisal for prior protected EEO activity when: (1) his March, 2009 request for a reasonable accommodation was denied; (2) on February 8, 2010, he was required to take a Fitness for Duty Exam (FFDE); and (3) on April 8, 2010, he was terminated1.
On October 7, 2010, the Agency issued a final decision (FAD) which found that it violated the Rehabilitation Act when Agency officials failed to engage in an interactive process with Complainant to determine his qualifications for possible reassignment as a reasonable accommodation and failed to conduct an appropriate search for a possible position. The Agency also concluded that if an adequate search had been conducted, an appropriate position more likely than not would have been found. The Agency's award included equitable relief in the form of an offer of reinstatement and back pay. The Agency also ordered a supplemental investigation on the issue of compensatory damages.
In response to the Agency's supplemental investigation of compensatory damages, Complainant submitted an affidavit describing the suffering he has endured, letters from family members corroborating the description of the suffering he has endured, letters from his doctors connecting physical and psychological injury to the failure to accommodate, bills related to medical costs, and a bill from his (non-attorney) representative. Complainant claims $12,525.00 for pecuniary losses and $85,000.00 for non-pecuniary losses, for a total claim of $97,525.00.
On February 25, 2010, the Agency issued a final decision on compensatory damages. The Agency denied Complainant's entire claim for pecuniary losses reasoning that Complainant did not provide evidence directly linking his health insurance, medical, pharmacy or transportation costs to the Agency's failure to accommodate his disability.2 The Agency also denied reimbursement for the costs associated with Complainant's non-attorney representation. The Agency concluded that Complainant suffered mental anguish, extreme emotional distress, depression, sleeplessness, embarrassment, paranoia, and anxiety as a result of the discriminatory conduct warranting a $15,000 non-pecuniary award.
In his appeal brief, Complainant argues that his termination is directly intertwined with the Agency's failure to accommodate his disability, noting that even the Agency concluded in its original FAD that an appropriate reassignment would have likely resulted had the Agency met its obligations under the Rehabilitation Act. Accordingly, had the Agency met its obligations under the Rehabilitation Act, Complainant's termination would not have occurred. Complainant also notes that he submitted ample documentary and testimonial evidence which supports a nexus between his increased medical costs and the failure of the Agency to accommodate his disability. Specifically, Complainant notes that he submitted: (1) documentary evidence establishing a marked increase in medical visits and pharmacy costs during the relevant period; (2) letters from his doctors attesting to the worsening of his physical and psychological conditions as a result of the Agency's failure to accommodate his disability; and (3) statements from numerous witnesses which corroborate his own statement attesting to the worsening of his physical and mental condition as a result of the Agency's failure to accommodate him. Complainant also argues that the case law cited by the Agency in support of its non-pecuniary award has little relevance to the instant case.3
ANALYSIS AND FINDINGS
Section 102 (a) of the Civil Rights Act of 1991 (the CRA 1991), Stat 1071, Pub. L. No. 102166, codified as 42 U.S.C. �1981a, authorizes an award of compensatory damages as part of the "make whole" relief for intentional discrimination. Compensatory damages do not include back pay, interest on back pay, or any other type of equitable relief. 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 number of persons employed by the respondent employer. The limit for an employer with more than 500 employees, such as the agency in the instant matter, is $300,000. 42 U.S.C. � 1981a(b)(3)(D). Compensatory damages, however, 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 Serv., EEOC Request No. 05980311 (Feb. 26, 1999). An award of compensatory damages should reflect the extent, nature, and severity of the harm and the length of time the injured party endured the harm. Id.
Pecuniary Compensatory Damages
Complainant may be awarded damages for pecuniary losses which are directly or proximately caused by the Agency's discriminatory conduct. EEOC Guidance: Compensatory and Punitive Damages Available Under Section 102 of the Civil Rights Act of 1991, EEOC Notice N-915.002 (July 14, 1992), at 8. Pecuniary losses are out-of-pocket expenses that are incurred as a result of the employer's unlawful action, including job-hunting expenses, moving expenses, medical expenses, psychiatric expenses, physical therapy expenses and other quantifiable out of pocket expenses. Id. Past pecuniary losses are the losses that are incurred prior to the resolution of a complaint via a finding of discrimination, an offer of full relief, or a voluntary settlement, while future pecuniary losses are those likely to occur after the resolution of the complaint. Id. at 8-9.
The amount to be awarded for pecuniary losses can be determined by receipts, records, bills, canceled checks, confirmation by other individuals, or other proof of actual losses and expenses. To recover damages, the complaining party must prove that the employer's discriminatory act or conduct was the cause of her loss. EEOC Guidance: Compensatory and Punitive Damages Available Under Section 102 of the Civil Rights Act of 1991, EEOC Notice No. N 915.002 (July 14, 1992). The critical question is whether the complaining party incurred the pecuniary losses as a result of the employer's discriminatory action or conduct. Id.
Initially, we note that Complainant does not challenge the Agency's determination that he is not entitled to reimbursement for his costs associated with his non-attorney representation. Thus, we AFFIRM the Agency's decision with respect to such claim.
Complainant produced the following documentary evidence in support of his claim for pecuniary damages: (1) Blue Cross Blue Shield (BCBS) "Explanation of Benefits" reflecting out-of-pocket payments totaling $171.75 for medical treatment related to Complainant's back injury between July 23, 2009 and March 10, 2010; (2) BCBS "Explanation of Benefits" dated August 12, 2009, reflecting an out-of-pocket payment of $8.00 related to Complainant's mental health treatment; (3) Complainant's wife's "Employee Statement of Earnings/Deductions" for pay-period ending October 23, 2010; (4) Federal Employee Health Benefits Program "Notice of Change in Health Benefits Enrollment" reflecting a termination of Complainant's Federal health insurance benefits effective April 10, 2010; (5) a medical office print-out reflecting Complainant's incurred costs associated with visits to his psychiatrist (P1) between April 8, 2009 and October 28, 2010, totaling $1,702.40; and (6) a pharmacy print-out showing prescribed medications purchased by Complainant between March 1, 2009 and October 27, 2010 cost totaling $1,082.70.
Except in the limited manner set forth below, we find that Complaint's documentary evidence fails to present sufficient proof of pecuniary losses as a result of the Agency's failure to accommodate his disability. Specifically, we find insufficient evidence to show: (1) to what extent the medical costs for his back injury increased after the Agency engaged in discrimination; (2) to what extent changing his health insurance coverage to his wife's insurance coverage, after his termination, increased the overall cost of health insurance coverage; (3) to what extent his pharmaceutical costs increased as a result of the Agency's discriminatory conduct. We also the record devoid of documentary evidence to support Complainant's claim for reimbursement of mileage costs.
However, we find sufficient evidence in the record to support a claim for pecuniary damages associated with Complainant's psychiatric visits. Specifically, the documentary evidence in the record shows that Complainant incurred costs associated with visits to P1 totaling $1,710.40 ($1,702.40 plus $8.00). In addition to this evidence, Complainant testified that his visits to P1 (at least) doubled after the Agency failed to accommodate him.4 Accordingly, we find that Complainant has established entitlement to half the cost associated with his visits to P1 during the relevant time-frame (i.e., after early March 2009). Accordingly, we find Complainant is entitled to $855.20 ($1,702.40 plus $8.00 divided by 2) in pecuniary damages.
Non-Pecuniary Compensatory Damages
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. Loving v. Dep't of the Treasury, EEOC Appeal No. 01955789 (Aug. 29, 1997); Rountree v. Dep't of Agriculture, EEOC Appeal No. 01941906 (July 7, 1995). We note that for a proper award of non-pecuniary damages, the amount of the award should not be "monstrously" excessive standing alone, should not be the product of passion or prejudice, and should be consistent with the amount awarded in similar cases. A complainant's testimony may be solely sufficient to establish emotional harm. EEOC Guidance: Compensatory and Punitive Damages Available Under Section 102 of the Civil Rights Act of 1991, EEOC Notice N-915.002 (July 14, 1992) at 6. Statements from others, including family members, friends, and health care providers could address the outward manifestations of the impact of the discrimination on the complainant. Id. The complainant could also submit documentation of medical or psychiatric treatment related to the effects of the discrimination. Id. Non-pecuniary damages must be limited to the sums necessary to compensate the injured party for the actual harm and should take into account the severity of the harm and the length of the time the injured party has suffered from the harm. Carpenter v. Dep't of Agriculture, EEOC Appeal No. 01945652 (July 17, 1995).
Based on the record and the medical evidence, the Commission finds the Agency's non-pecuniary award insufficient to remedy the harm that its actions caused Complainant. The record shows that the failure to provide Complainant with a reasonable accommodation resulted in the aggravation of a pre-existing back injury and the severe aggravation of a pre-existing mental disorder that by all accounts was considered to be "stable" prior to the relevant time-frame. While the Agency attempts to distinguish Complainant's termination as an intervening factor which caused additional harm to Complainant, we disagree. While the record indicates that the termination of Complainant in April, 2010 resulted in additional amounts of emotional harm, such termination is not an intervening factor but is the direct result of the Agency's failure to accommodate Complainant's disability. Had the Agency met its obligations under the Rehabilitation Act, Complainant would never have been terminated.
Accordingly, we find $50,000.00 an appropriate amount as Complainant presented sufficient evidence to establish that he suffered severe aggravation and exacerbation of his relatively "stable" mental condition in the form of extreme emotional distress, depression, substantial weight gain5, anxiety, paranoia, marital trouble, humiliation, embarrassment, and other manifestations of emotional harm. Moreover, the undisputed record establishes that such emotional harm continues to the present day. The record also establishes that the Agency's failure to accommodate Complainant's disability resulted in the exacerbation of his pre-existing back injury which resulted in substantially increased pain, treatment by a pain management specialist, and extensive absence from work over a period of approximately nine months.6
Several Commission decisions have addressed compensatory damages in cases similar to complainant. See Ward-Jerkins v. Dep't of the Interior, EEOC Appeal No. 01961483 (Mar. 4, 1999) ($50,000 in non-pecuniary damages where the complainant who after being detailed and reassigned suffered a diagnosed acute distress disorder, and aggravation of her depressive condition); Levy v. Dep't of Veterans Affairs, EEOC Appeal No. 01A01561 (May 12, 2003) ($60,000 in non-pecuniary damages where complainant who was denied an accommodation and subsequently terminated suffered severe depression with concomitant physical symptoms and aggravation of pre-existing mental and physical conditions); Williams v. U.S. Postal Serv., EEOC Appeal No. 01990520 (Feb. 14, 2002) (Commission awarded $50,000 in non-pecuniary 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). The record indicates that the exacerbation of Complainant's pre-existing condition was severe and of indefinite duration. We, therefore, find that the evidence supports an award of $50,000. This amount takes into account the severity and the extended duration of the harm. The Commission further notes that this amount meets the goals of not being motivated by passion or prejudice, not being "monstrously excessive" standing alone, and being consistent with the amounts awarded in similar cases. See Ward-Jenkins v. Dep't of the Interior, EEOC Appeal No. 01961483 (March 4, 1999).
After careful review of the record, we MODIFY the agency's final decision and direct the agency to take the remedial action in accordance with this decision and the Order below.
ORDER
The agency is ordered to take the following remedial action:
To the extent it has not already done so and within sixty (60) days of the date on which this decision becomes final, the agency shall tender to Complainant pecuniary compensatory damages in the amount of $855.20 and non-pecuniary compensatory damages in the amount of $50,000.00, for a total amount of $50,855.20.
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.
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:
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 (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 (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 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
September 19, 2012
__________________
Date
1 The record indicates that Complainant was terminated because he was medically unable to perform his current job duties.
2 The Agency noted that such losses were more likely related to his termination which the Agency concluded was not a violation of the Rehabilitation Act.
3 Complainant does not address the Agency's assertion that he is not entitled to reimbursement of costs associated with his non-attorney representation.
4 Complainant also testified that at times his needed to see his psychiatrist more often, but did not give specifics.
5 The record indicates that Complainant gained 20 pounds during the relevant time-frame.
6 The evidence is supported by Complainant's testimony, testimony of various family members, medical records, and statements by his mental and physical health physicians linking the increase in symptoms to the Agency's discriminatory conduct.
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01-2011-2305
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013