01a01561
05-12-2003
Rose Levy, Complainant, v. Anthony J. Principi, Secretary, Department of Veterans Affairs, Agency.
Rose Levy v. Department of Veterans Affairs
01A01561
05-12-03
.
Rose Levy,
Complainant,
v.
Anthony J. Principi,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 01A01561
Agency No. 97-0448
Hearing No. 340-97-3646X
DECISION
Rose Levy (hereinafter referred to as complainant) filed a timely appeal
from the November 5, 1999, final decision of the Department of Veterans
Affairs (hereinafter referred to as the agency) concerning a complaint
of unlawful employment discrimination in violation of Title VII of the
Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e et seq., the Age
Discrimination in Employment Act of 1967, as amended, 29 U.S.C. � 621
et seq., and the Rehabilitation Act of 1973, as amended, 29 U.S.C. ��
791, 794(c). The appeal is timely filed (see 29 C.F.R. � 1614.402(a))
and is accepted in accordance with 29 C.F.R. � 1614.405.
Findings on the Merits
Complainant filed a formal complaint on October 14, 1996, alleging
discrimination based on age (63), reprisal,<1> and disability, when (a)
she was denied additional work in February 1993 (reprisal and age, only);
(b) when she was not afforded a reasonable accommodation in September
1995 following a work-related injury; and (c) when she was terminated in
July 1996. Beginning in July 1992, complainant worked as a Registered
Nurse one day per week in the substance abuse rehabilitation ward.
In November 1993, she was injured when a metal shelf fell on her head
and shoulder. She suffered head and back injuries and experienced
depression connected with the injury. Complainant was out of work,
receiving workers' compensation benefits, until January 1996. Her doctor
released her to return to work in July 1995, and, she was directed to
return to work in September 1995. She was unable to return to work,
however, but sought to do so in January 1996.
After a hearing on the merits, an EEOC Administrative Judge (AJ) issued
a decision finding that the agency discriminated against complainant
based on disability with regard to (b), the agency's failure to afford
complainant a reasonable accommodation in September 1995, and (c),
the termination in July 1996; based on reprisal with regard to (c);
and no discrimination on all other claims. The agency accepted the
AJ's decision on the merits of all claims, except that it rejected his
finding that the termination was based on reprisal (c).
With regard to the finding of reprisal, the AJ observed that the agency's
termination action in July 1996 charged complainant with failure to
properly request leave, noting that it came soon after she had asserted
her right to a reasonable accommodation in early June 1996. He concluded,
therefore, that the agency's justification for its termination action,
i.e., that complainant had failed to properly request leave, was a
pretext, because the agency had failed to respond to her inquiries
regarding procedures for taking leave and requesting a reasonable
accommodation. In its FAD, however, the agency contended that complainant
was on notice of its assertion that she had not requested leave since
May 23, 1996, when it issued its first proposal to terminate her for
being AWOL. We find that the agency's contention does not consider
that it did not show that it asked for further information or leave
requests after her initial submission in September 1995.<2> Therefore,
with regard to the merits of complainant's claims, after a review of
the record in its entirety, including consideration of all statements
submitted on appeal, the Commission finds that the AJ's decision finding
discrimination based on disability with regard to issues (b) and (c)
and based on reprisal with regard to issue (c) is supported by the record.
In her appeal statement, complainant noted that she does not contest
the entire agency decision, in that, she stated she was willing to
return to work and accept the agency's offer of back pay, i.e., back
pay for one day per week for the period from January through July 1996.
Her disagreement with the agency's decision was its (1) denial of back pay
after the termination in July 1996, and (2) the amount of non-pecuniary
compensatory damages awarded by the agency. We will address these two
issues in this decision and adopt the findings for the relief ordered by
the AJ and the agency, i.e., reinstatement to her former position with
reasonable accommodation effective July 1, 1996; reasonable attorney's
fees and costs; and back pay for one day per week from January 1996,
until a reinstatement offer is effected.<3>
Remedy<4>
Compensatory Damages. With regard to the claim for compensatory damages,
the AJ held a separate hearing and determined that complainant was
entitled to reimbursement in full for past medical costs, including
psychiatric treatment, attributable to the agency's discriminatory
actions for the period from September 5, 1995, through the date of his
decision (May 18, 1999); future psychiatric treatment as recommended by
her psychiatrist limited to 40 visits over the period of one year from
May 18, 1999; and non-pecuniary damages in the amount of $150,000.<5>
In response, the agency agreed to pay past pecuniary costs for medical
services attributable to the agency's discriminatory actions supported
by appropriate documentation and reduced the award for nonpecuniary
compensatory damages to $25,000.
With regard to her claim for pecuniary compensatory damages, we agree
with the AJ and the agency and will order full compensation for any
costs attributable to the agency's discriminatory acts upon submission
of proper supporting documentation, including payment for psychiatric
treatment for up to 40 visits for the period from May 18, 1999, through
May 18, 2000. As to an award for non-pecuniary compensatory damages,
we find that the proper amount of an award is $60,000.
In arriving at an award for non-pecuniary compensatory damages in this
matter, we find that the AJ's award is not supported by the record
evidence and that it is not consistent with principles enunciated by the
Commission for such awards. See Sinnott v. Department of Defense, EEOC
Appeal No. 01952872 (September 19, 1996); see Guidance, supra. An award
of non-pecuniary compensatory damages must be predicated on the harm
experienced as a result of the agency's actions; the extent, nature, and
severity of the harm suffered; and the duration or expected duration of
the harm, see Rivera v. Department of the Navy, EEOC Appeal No. 01934156
(July 22, 1994), req. to recon. den., EEOC Request No. 05940927 (December
11, 1995); an award must take into account the severity of the harm
over the length of time that the injured party suffered from the harm,
see Carpenter v. Department of Agriculture, EEOC Appeal No. 01945652
(July 17, 1995); and, an award should not be "monstrously excessive"
standing alone, the product of passion or prejudice, or inconsistent
with awards in similar cases, see Cygnar v. City of Chicago, 865 F.2d
827, 848 (7th Cir. 1989); EEOC v. AIC Security Investigations, Ltd.,
823 F. Supp. 571, 574 (N.D. Ill. 1993).
The AJ found that the mental and emotional impact on complainant because
of the agency's actions reduced her physical and mental health, e.g.,
she gained weight, became depressed, stopped socializing with family and
friends, experienced moods of humiliation and embarrassment, stopped
her daily walks, exercise regimen, and other business and personal
activities. In addition, he stated that she complained of difficulties
with sleep, crying episodes, concentration, loss of energy, and feelings
of helplessness. He noted that complainant's psychiatrist observed
that, following her termination, she exhibited feelings of humiliation
and shame, worry, nervousness, and anxiety, especially about the future
and other employment. Nevertheless, while acknowledging that complainant
experienced the above-described symptoms, an award in this matter must be
tempered to accord with awards in similar cases and consider the effect
of her 1993 injury.
The extent of an agency's liability must take into account other
factors that may have affected complainant, in particular herein, the
complainant's medical and emotional condition at the time of the agency's
discriminatory actions, i.e., from September 1995. When the harm caused
by discrimination may be an aggravation of pre-existing conditions,
the agency is generally liable for all additional harm ("the claim of
emotional harm will be seriously undermined if the onset of symptoms
of emotional harm preceded the discrimination"). Guidance at 11.
In considering such cases, the Commission relies on the principle that
"a tortfeasor takes its victims as it finds them." Wallis v. USPS, EEOC
Appeal No. 01950510 (November 13, 1995), citing, Williamson v. Handy
Button Machine Co., 817 F.2d 1290, 1295 (7th Cir. 1987). There are two
addendums to this general rule, however. First, when a complainant has a
pre-existing condition, the agency is liable only for the additional harm
or aggravation caused by the discrimination. Guidance at 12. Second, if
the complainant's pre-existing condition inevitably would have worsened,
the agency is entitled to a reduction in damages reflecting the extent to
which the condition would have worsened, even absent the discrimination.
Wallis v. USPS, supra, citing, Maurer v. United States, 668 F.2d 98,
99-100 (2d Cir. 1981) ($50,000 award for aggravation of pre-existing
emotional condition); see Ward-Jenkins v. Department of the Interior,
EEOC Appeal No. 01961483 (March 4, 1999) (reduction in award allowed
for pre-existing condition); Carpenter v. Department of Agriculture,
supra (agency was liable for exacerbation of pre-existing asthmatic
condition and for the additional physical and emotional harm caused by
the exacerbation of the asthma).
A close reading of complainant's testimony, the medical reports, and
statements from her psychiatrist demonstrates that complainant began to
experience severe depression and concomitant physical symptoms, e.g.,
severe headaches, neck pain, inactivity, and weight gain, following
her November 1993 injury and prior to September 1995.<6> The agency
is not responsible for appellant's condition prior to September 1995
but is responsible for the actions it took which may have exacerbated
that condition, and the Commission must weigh the extent to which other
factors caused harm to the complainant. Smith v. DOD, EEOC Appeal
No. 01943844 (May 9, 1996). The Commission has awarded non-pecuniary
compensatory damages in cases where the agency's actions have aggravated a
complainant's pre-existing condition. See Smith v. DOD, supra ($25,000);
Terrell v. Department of Housing and Urban Development, EEOC Appeal
No. 01961030 (October 25, 1996), aff'd, EEOC Request No. 05970336
(November 25, 1997) ($25,000); Carpenter v. Department of Agriculture,
supra ($75,000); Wallis v. USPS, supra ($50,000).
Based on the evidence in the record and for the reasons stated, above,
we find that an award of $60,000 for non-pecuniary compensatory damages
is appropriate in this matter. The Commission finds that this award is
reasonable and not inconsistent with amounts awarded in similar cases, is
not motivated by passion or prejudice, and is not monstrously excessive.
Equitable Relief. In its decision, the agency determined that
complainant was entitled to back pay, with interest, for one day per
week for the period from January (when OWCP benefits terminated) through
July 1996, and it rejected any further equitable relief. In denying
any further relief, the agency held that because complainant failed to
mitigate her damages and look for work, it had no further liability.
In making this determination, the agency ignored several factors,
including complainant's stated willingness to return to work in
January, the agency's failure to initiate the reasonable accommodation
process, and the finding of discrimination based on reprisal. Thus,
in awarding back pay for January to July 1996, the agency acknowledged
its responsibility for complainant's inability to resume work in January
1996, but failed to accept that its responsibility for its discriminatory
actions continued to affect complainant after the illegal termination.
In fact, the adverse consequences of its actions continued and impacted
on complainant's ability to seek work, until she decided to seeking
disability retirement. We find that complainant is entitled to back pay
from the date her OWCP benefits ended until the date of her retirement
on disability in December 1999.
CONCLUSION
According, the agency's decision is reversed, in part. The agency is
directed to comply with the Order, below.
ORDER (D0900)<7>
The agency is ordered to take the following remedial action, to the
extent that it has not already done so:
A. Within 30 calendar days of the date this decision becomes final,
the agency is directed to reinstate complainant to her former position
effective July 1, 1996, and to re-initiate the negotiation process to
fashion that position to enable complainant to return to work.<8>
B. Within 30 calendar days of the date this decision becomes final, the
agency shall determine the appropriate amount of back pay for one day per
week, interest, and other benefits due complainant, from the date of her
termination until her retirement, pursuant to 29 C.F.R. � 1614.501, no
later than sixty (60) calendar days after the date this decision becomes
final. The 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 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 clarification or enforcement must
be filed with the Compliance Officer, at the address referenced in the
statement entitled "Implementation of the Commission's Decision."
C. Within 90 calendar days of the date this decision becomes final,
the agency shall conduct training for all agency personnel involved
in the decisions at issue herein with respect to their obligations to
reasonably accommodate persons with disabilities.
D. Within 30 calendar days of the date this decision becomes final,
the agency shall consider appropriate disciplinary action against the
responsible agency officials and report its decision to the Commission.
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.
E. Within sixty (60) days of the date this decision becomes final, the
agency shall request objective evidence from complainant in support of
her claim for past pecuniary compensatory damages attributable to the
agency's discriminatory actions. Such damages are for past medical
treatment for the period from September 5, 1995, through May 18, 1999,
and psychiatric treatment limited to 40 visits for the period from May 18,
1999, through May 17, 2000. See fn. 5, supra. The agency shall provide
complainant sufficient information to allow her to reasonably respond
to the agency's request, including an explanation of proof required in
support of her claim.<9> Within thirty (30) days of her submission, the
agency shall issue a final decision with appropriate rights of appeal.
A copy of the final agency decision must be submitted to the Compliance
Officer, as described, below.
F. Within 30 calendar days of the date this decision becomes final, the
agency shall pay complainant $60,000 in nonpecuniary compensatory damages.
G. 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 calculation of back pay and other benefits due complainant,
including evidence that the corrective action has been implemented.
A copy of all reports and submission shall be sent to complainant and
her counsel.
POSTING ORDER (G0900)
The agency is ordered to post at its West Los Angeles Medical Center
facility 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.
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
_____05-12-03_____________
Date
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
AN AGENCY OF THE UNITED STATES GOVERNMENT
This Notice is posted pursuant to an Order by the United
States Equal Employment Opportunity Commission dated
which found that a violation of the Rehabilitation Act of 1973, as
amended, 29 U.S.C. �� 791, 794(c), has occurred at this facility.
Federal law requires that there be no discrimination against any employee
or applicant for employment because of the person's RACE, COLOR, RELIGION,
SEX, NATIONAL ORIGIN, AGE or DISABILITY with respect to hiring, firing,
promotion, compensation, or other terms, conditions or privilege of
employment.
The Department of Veterans Affairs, West Los Angeles Medical Center,
supports and will comply with such Federal law and will not take action
against individuals because they have exercised their rights under
the law. The Commission found discrimination based on disability and
reprisal when the agency failed to provide a reasonable accommodation
and terminated an employee. It has remedied the employee affected by
the Commission's finding of discrimination by reinstating the employee;
providing reasonable accommodation, back pay, interest, and benefits,
attorney's fees, and compensatory damages to the employee; affording
training to the employees and supervisors involved in the discriminatory
action; and posting this notice. The Department of Veterans Affairs,
West Los Angeles Medical Center, will ensure that officials responsible
for personnel decisions and terms and conditions of employment will
abide by the requirements of all federal equal employment laws and will
not subject employees to discrimination based on disability and reprisal.
The Department of Veterans Affairs, West Los Angeles Medical Center,
will not in any manner restrain, interfere, coerce, or retaliate against
any individual who exercises his or her right to oppose practices made
unlawful by, or who participated in proceedings pursuant to, Federal
equal employment opportunity law.
Date Posted:
Posting Expires:
1The basis of reprisal was added to complainant's claim by the AJ,
sua sponte.
2At that time, although complainant submitted a leave request and medical
information, stating that she was incapacitated temporarily, and continued
to send medical information to the agency, she never received a response
to her calls for further information.
3The record indicates that complainant was granted disability retirement
in 1999; however, there is also reference to a retirement in 1996.
Nevertheless, because complainant's appeal statement dated January 4,
2000, indicated that she was willing to return to work, we will direct
the agency to offer reinstatement.
4See, generally, Enforcement Guidance: Compensatory and Punitive Damages
Available under � 102 of the Civil Rights Act of 1991, No. N 915-002
(July 14, 1992) (Guidance). We note that monetary relief, such as
back pay and interest on back pay, is equitable relief and consists of
monetary damages for loss of earnings, including all fringe benefits.
See Section 706(g), 42 U.S.C. � 2000e-(5)(g); 42 U.S.C. � 1981A(b).
Such relief is not compensatory damages, and complaining parties may
recover equitable relief without limitation. Guidance, at 2.
5We recognize that, at the point in time of this decision, any
reimbursement for the future psychiatric treatment ordered by the AJ has
become past pecuniary expenses, and there is no need to repeat the AJ's
order to reimburse complainant for future psychiatric expenses.
6We note that, as of July 1995, her medical doctor found her able to
return to work and that it was not until after September 1995 that her
psychiatrist intervened to find her unable to work for a temporary period.
7The AJ acknowledged complainant's right to full recovery pursuant to
the collateral source rule, which allows a complainant to recover full
benefits received from a source collateral to the responding agency and
which may not be used to reduce the agency's liability for damages by
payments made to complainant from a collateral source. Wallis v. USPS,
EEOC Appeal No. 01950510 (November 13, 1995). This includes benefits
such as medical costs and unemployment benefits but does not apply to
amounts received under FECA. Double recovery is not an issue, because
complainant's health insurer may recover from her the monies it expended
on her behalf. See Ward-Jenkins v. Department of the Interior, supra.
8The agency is reminded of its ongoing obligation to provide reasonable
accommodation to the known limitations of a qualified individual with
a disability. 29 C.F.R. � 1630.9; 29 C.F.R. � 1630.2(o).
9Objective evidence in support of a claim for pecuniary damages usually
includes documentation showing all actual, out-of-pocket expenses with
an explanation of the expenditure. Carle v. Department of the Navy,
EEOC Appeal No. 01922369 (January 5, 1993).