07A30105
09-23-2004
Tova Glockner, Complainant, v. Anthony J. Principi, Secretary, Department of Veterans Affairs, Agency.
Tova Glockner v. Department of Veterans Affairs
07A30105
September 23, 2004
.
Tova Glockner,
Complainant,
v.
Anthony J. Principi,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 07A30105
Agency Nos. 99-2927; 200P-1130; 2624; 2670; 2728; 2930
Hearing Nos. 340-A0-3504X & A2-3221X
DECISION
Following its May 29, 2003 final order, the agency filed a timely appeal
which the Commission accepts pursuant to 29 C.F.R. � 1614.405. On appeal,
the agency requests that the Commission affirm its rejection of an EEOC
Administrative Judge's (AJ) order awarding the sum of $207,233.00 in
pecuniary and non-pecuniary damages. For the following reasons, the
Commission modifies the agency's final order.
Complainant, a Clinical Pharmacist employed at the agency's facility
in West Los Angeles, California, filed formal EEO complaints with the
agency on July 14, 1999, August 29, 2000, November 19, 2000, December 19,
2000, February 15, 2001, and June 27, 2001, claiming that the agency
discriminated against her on the bases of race (Caucasian), religion
(Jewish), age (D.O.B. 5/7/48), and reprisal for prior EEO activity when
she was subjected to a pattern of harassment.
The complaints were consolidated and following a hearing, the AJ issued a
decision finding that complainant was discriminated against based on her
race, religion, and reprisal concerning the issues relative to complainant
being demoted; receiving unwarranted negative performance comments; being
denied leave and overtime; being deprived of choice work assignments and
career opportunities; being scheduled to work on Saturdays and religious
holidays; having information about her EEO activity disseminated; and
the duration and manner in which complainant was issued a reprimand.<1>
The AJ awarded complainant $7,233.00 in pecuniary damages and $200,000.00
in non-pecuniary damages, and ordered the agency to undertake various
remedies. The AJ also awarded complainant $78,749.75 in attorney's fees
and costs in the amount of $4,369.96.
The agency's final order adopted the AJ's findings in their entirety.
However, the agency declined to adopt the AJ's award of pecuniary and
non-pecuniary damages. On appeal, the agency argues that complainant
failed to show that her pre-existing condition was exacerbated by the
discrimination she suffered, and that the award was not supported by
testimony at the hearing or evidence contained in the file. Further,
the agency argues that the amount awarded by the AJ was excessive and
inconsistent with amounts awarded by the Commission in similar cases,
and suggested that a more appropriate award was no pecuniary damages
and $5000.00 in non-pecuniary damages.<2> In response, complainant
argues that the agency's appeal is untimely and should be dismissed.
Complainant further argues that the evidence supports the amount awarded
by the AJ and requests that we affirm the AJ's decision.
FINDINGS AND ANALYSIS
Initially we note that complainant has not shown that the agency's appeal
failed to comply with 29 C.F.R. � 1614.110(a). Specifically, the record
reveals that the agency date-stamped the AJ's decision on April 24,
2003, the date that it was received by the agency. Accordingly, the
request to dismiss is denied.
Legal Standard for an Award of Compensatory Damages
Pursuant to section 102(a) of the Civil Rights Act of 1991, a
complainant who establishes his or her claim of unlawful discrimination
may receive, in addition to equitable remedies, 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). 42
U.S. C. � 1981a(b)(3). 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. Id.
Compensatory damages may be awarded for past pecuniary losses,
future pecuniary losses, and non-pecuniary losses that are directly or
proximately caused by the agency's discriminatory conduct. Compensatory
and Punitive Damages Available Under Section 102 of the Civil Rights Act
of 1991 (Compensatory Damages), EEOC Notice No. N 915.002 (July 14, 1992),
at 8. Pecuniary losses are out-of-pocket expenses incurred as a result of
the employer's unlawful action, including medical and other quantifiable
out-of-pocket expenses. Id. To receive an award of compensatory damages,
a complainant must demonstrate the following: that she 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) req. for recons. den. EEOC Request No. 05940927 (December 11,
1995); Compensatory Damages, at 11-12, 14.
In Carle v. Dept. of the Navy, the Commission explained that
"objective evidence" of non-pecuniary damages could include a
statement by the complainant explaining how he or she was affected
by the discrimination. EEOC Appeal No. 01922369 (January 5, 1993).
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.
Additionally, in determining damages, the Commission applies the principle
that "a tortfeasor takes its victims as it finds them." Wallis v. United
States Postal Service, EEOC Appeal No. 01950510 (November 13, 1995)
(quoting Williamson v. Handy Button Machine Co., 817 F.2d 1290, 1295 (7th
Cir. 1987)). However, the Commission also applies two exceptions to this
general rule. First, when a complainant has a pre-existing condition,
the agency is liable only for the additional harm or aggravation caused by
the discrimination. 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; the burden of proof is on the
agency to establish the extent of this entitlement. Wallis, EEOC Appeal
No. 01950510 (citing Maurer v. United States, 668 F.2d 98 (2d Cir. 1981));
Finlay v. United States Postal Service, EEOC Appeal No. 01942985 (April
29, 1997).
Non-Pecuniary Damages
The agency first contends that the evidence in the record did not
support a conclusion that complainant's migraine headaches were caused
by her workplace condition and that, by her own admission, her headaches
could have been triggered by alcohol, cheese, cold cuts, and monosodium
glutamate. The record reveals that complainant suffered from recurrent
migraine headaches since age sixteen, and, that they occurred particularly
when complainant was stressed or fatigued. Further, the record reveals
that around November 14, 1996, prior to the start of the discrimination
alleged herein, complainant experienced particularly severe headaches,
which lasted five days and then had a further recurrence over that same
weekend. Complainant Exhibit (CE) 81, p. 260. Complainant underwent
a Magnetic Resonance Image (MRI) test at that time to conclusively rule
out physiological causes for the migraines.
Complainant testified that the stress of adjusting to a new country when
she was younger caused her migraines, but that they went away and she
only had occasional migraines thereafter. However, with the onset of
the harassment and stress at work in 1998, she noted that the migraines
intensified and were more frequent and severe to the point where she
was having migraines once a week or every other week with each bout
lasting two or three days. Hearing Transcript One (HT-1), p. 259-260.
Due to her concern about their severity and frequency, complainant
testified that she went to a neurologist and had an MRI's performed
in October 2000 to rule out physiological causes. CE 81, pp. 266-267.
After ruling out such causes, complainant testified that her neurologist
attributed her migraines to stress. HT-1, pp. 260-263.
The record also reveals that as far back as 1999, complainant's
doctor attributed the exacerbation of complainant's headaches to work
related stress. CE 80. Further, the Chief of Administrative Medicine
(Staff Physician) at the complainant's facility, testified that after
several visits from complainant, he believed that complainant's headaches
originated from her working conditions. HT-1, pp. 33-34. We note that
there is no evidence that complainant suffered migraines as severe or
as frequent as the ones she suffered in 1996 until the time period
of the discriminatory events herein. Further, we find that there
was no medical or testimonial evidence in the record to show that the
frequency and severity of the migraines would have worsened over time,
absent the increased stress that was placed on complainant as a result
of the harassment and discrimination she suffered. We also note that
contrary to the agency's contention, the record reveals that complainant
does not drink, and that the other identified triggers, i.e., cheese
and monosodium glutamate, were noted from past not current use. CE 81,
p. 260. Therefore, we find that complainant has shown that her migraines
were in fact significantly exacerbated by her hostile working conditions.
The agency further contends that the AJ's award of $200,000 in
compensatory damages was not supported by testimony at the hearing
or the evidence contained in the file. We note that complainant
testified that, as a result of the ongoing harassment and stress at
work, she started to experience severe intestinal distress, which she
was told by her physicians was consistent with Irritable Bowel Syndrome
(IBS) triggered by stress, and serious sleep disturbances. She also
testified that she experienced the stomach disorders on a nearly daily
basis. Complainant testified that she started to bite her cheeks and
developed an irritational fibroma, which required surgery. Further,
she suffered from depression, anxiety and exhaustion. She further
testified that while she once loved her job, she now drives to work in
tears and often does not want to go to work at all. She testified that
she continues to feel isolated at work in that her supervisors treat her
like a pariah or like she is invisible and her co-workers often avoid her
because of the negative things said about her by her supervisors. She
testified to the deep humiliation she experienced and the psychological
loss caused by the damage to her reputation. Moreover, while she
once felt that she had the respect of her professional colleagues and
the doctors in the community and in the agency, she had been isolated
from them and her performance has been constantly criticized to them.
Additionally, professional relationships that she had with doctors in the
diabetic clinic and other sub-speciality clinics, developed over many
years, have been severed, causing her great pain and a sense of loss.
Complainant also avers that she has not recovered from any of the injuries
or conditions that she alleges were caused by the agency, and that her
life outside the agency had been dramatically impacted and that she
has significant fears and concerns about the future in that the Chief
of Pharmacy encouraged her to look for employment outside the agency.
Several witnesses also testified that on several occasions during the
period when the discrimination occurred, they observed complainant crying
at work, complaining of stress from how she was being treated by her
supervisors, or suffering from migraine headaches.
In response, the agency argues that complainant's doctor never diagnosed
her irritable bowel syndrome (IBS) in that he testified that a diagnosis
required additional studies beyond what he performed. The agency further
contended that, assuming, arguendo, that complainant was diagnosed
with IBS, the record did not show that it was caused by her workplace
conditions. We note however, that while the doctor did not make an
official diagnosis, he noted that if he had to offer a medical opinion,
he believed that her workplace distress was causing her irritable bowel
syndrome. Further, complainant testified that her IBS problems started
around the time that she was being scheduled to work on Saturdays, her
Sabbath day, and that she continues to suffer from bloating and other
symptoms of gastrointestinal distress, which at times results in her not
being able to fit in her clothes. HT-1, p. 263. Therefore, we find that
complainant has shown a nexus between her IBS and her working conditions.
In addition, the record shows that after the harassment began in 1998,
complainant began biting her cheeks from stress. This resulted in an
irritational fibroma, which she needed to have surgically removed in
July 1999. HT-1, p. 267. Complainant also averred that she developed
kidney stones because she was afraid to take breaks due to the harassment
she suffered at work. Report of Investigation II (ROI-II), Complainant
Affidavit, p. 73; see also HT-1, p. 267. Further, as the AJ found,
there was creditable evidence provided by complainant that employees
and management resented that complainant was not required to work
on Saturdays and that her religious practices made her the target
of hostility. Moreover, complainant was also the subject of hostility
because she filed an EEO complaint in that complainant was told to stop
being a �princess� and encouraged to drop her complaints. Additionally,
as the AJ noted, much of the harassing conduct complainant suffered,
occurred directly following complainant's protected activity. CE 93.
In view of the evidence in the record, we find that complainant has
persuasively shown a nexus between her physical ailments and the agency's
discriminatory actions. Further, we find that complainant provided
sufficient medical documentation of her conditions, including the MRI
scan from her doctor diagnosing her migraines, and the letters from her
doctors regarding the treatment of her kidney stones and removal of the
irritational fibroma. CE 79-82.
The agency contends that while complainant contends that she suffered
from depression because of the discriminatory actions of the agency,
she testified that she was not under a doctor's care for her alleged
symptoms nor did she take prescribed medication to alleviate her symptoms.
We note however that, medical evidence is not a mandatory prerequisite
for recovery of compensatory damages. Carpenter v. Department
of Agriculture, EEOC Appeal No, 01945652 (July 17, 1995). In the
absence of this evidence, a complainant's own testimony, along with
the circumstances of a particular case, can suffice his/her burden in
this regard. See U.S. v. Balistrieri, 981 F.2d 916, 932 (7th Cir. 1992),
cert. denied, 114 S. Ct. 58 (1993) (housing discrimination). As the court
noted in Balistrieri, �[t]he more inherently degrading or humiliating the
defendant's action is, the more reasonable it is to infer that a person
would suffer humiliation or distress from that action; consequently,
somewhat more conclusory evidence of emotional distress will be acceptable
to support an award for emotional damages.� Nonetheless, the absence of
supporting evidence may affect the amount of damages deemed appropriate
in specific cases. Lawrence v. USPS, EEOC Appeal No. 01952288 (April
18, 1996). We note however, that complainant submitted ample evidence of
how she was devastated by the discrimination she suffered. For example,
complainant noted that she was isolated and humiliated with respect to
the assignment of clinics, in that despite complainant's exemplary work
and expertise in the clinics, she was removed from her speciality clinic
in 1999 and never assigned to another one. Complainant also noted that
she was described by her supervisors as �slow� and a �troublemaker� to
new employees. Further, while complainant may not have taken medication
for her depression, complainant testified that she often cried over the
events at work, withdrew from her family and friends, and while she once
loved to cook and go out, she no longer performs those tasks and goes
out socially only infrequently. Complainant's coworkers also testified
to seeing complainant upset and crying at work and also suffering from
migraines as a result of the treatment from her supervisors. The evidence
in the record also revealed that complainant sought out treatment for
her migraines and took large doses of over-the-counter medications
(well above those she would permit her patients to take) as well as
the prescription drug Fiorinal to combat her migraines. HT-1, p. 262.
Further the record reveals that complainant avoided taking any stronger
drugs for her conditions, including depression, because she knew that as
a pharmacist, most drugs available to her had side effects which would
not allow her to stay clear headed for her job. Therefore, we cannot
find that complainant should be penalized for otherwise refraining from
taking medication which could negatively impact her ability to perform
her job, or that such failure lessens the degree of harm she suffered
from the discrimination.
Finally, the agency argues that complainant was not entitled to the
amount awarded by the AJ because the facts of complainant's case were
distinguishable from cases where larger amounts were awarded in that
complainant continued to work during the period of discrimination and
did not undergo treatment or take medication for the alleged symptoms
of depression and anxiety from which she suffered. The agency then
cited favorably to Benson v. Department of Agriculture, EEOC Appeal No,
01952854 (June 27, 1996), and Brown v. Department of Veterans Affairs,
EEOC Appeal No. 01950342 (June 13, 1997), as examples of cases and awards
that where comparable to the injury that complainant suffered.
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 the amounts awarded in similar cases. See Cygnar v. City
of Chicago, 865 F.2d 827, 848 (7th Cir. 1989) at 574. Further, several
Commission decisions have awarded significant compensatory damages in a
wide range of amounts depending on the facts of the particular case, and
the supporting evidence presented. See generally, Mack v. Department of
Veterans Affairs (June 23, 2000)(award of $185,000.00 where individual was
left homeless for two years as a result of discriminatory termination);
Franklin v. United States Postal Service, EEOC Appeal No. 07A00025;
01A03882 (January 19, 2001) (award of $150,000 where emotional distress
caused by denial of reasonable accommodation, with no medical evidence,
but extensive evidence by family, including testimony of wife on break-up
of marriage); Bernard v. Department of Veterans Affairs, EEOC Appeal
No. 01966861(July 17, 1998) (award of $80,000.00 where complainant
presented testimony that over a five year period he became depressed,
withdrawn, cynical, angry, and during part of this time had ringing in
the ears, headaches, teeth grinding and insomnia).
The AJ, who had the opportunity to observe the witnesses, considered
the severity of the harm caused by the agency's action; and the extent
to which other factors in complainant's life may have exacerbated
complainant's pre-existing condition and determined that $200,000.00 was
a reasonable amount to compensate complainant. We note that the instant
case, wherein complainant was continually harassed and degraded for a
period of close to five years, is immediately distinguishable from the
cases referenced by the agency in that, in Benson, the damages were
awarded based on four discriminatory incidents related, in relevant
part, to the agency failing to provide complainant with information
concerning a whistleblower charge, and interference with the supervisory
relationship. Similarly, complainant's case is distinguishable from
the Brown appeal in that the period of harassment complainant suffered
through was significantly longer than the fourteen months in the
Brown case. Moreover, complainant twice had her pay step reduced and
was deprived of various career opportunities. We note as did the AJ,
that many of the incidents that comprise complainant's harassment
claim will permanently impact complainant's career, and cannot be
remedied other than through compensatory damages. For example, the
agency's obstruction of complainant's professional growth and damage to
her professional reputation by not permitting her to teach classes or
attend team meetings when she was assigned to the diabetic clinic and its
denial of complainant's scope of practice credentials which repeatedly
caused complainant humiliation when she, unlike pharmacists with much
less experience, was unable to order lab tests. This made it necessary
for complainant to ask physicians to order her tests for her, which
resulted in them asking complainant why she could not order her own lab
tests. We also note that complainant introduced medical evidence of her
injuries, and statements from her co-workers about how she was impacted
by the discriminatory harassment. Further, we note that complainant
avers that she has not recovered from any of the injuries or conditions
that she alleges were caused by the agency, and that her life outside
the agency has been dramatically impacted and that she has significant
fears and concerns about the future. We also find that the record is
devoid of substantive evidence of problems outside of the discriminatory
work environment which contributed to the development or exacerbation
complainant's ailments. Therefore, we are unpersuaded by the agency's
argument that there was insufficient evidence or testimony in the record
to support the AJ's award or that it was inconsistent with awards issued
by the Commission. Accordingly, the Commission finds that complainant
is entitled to non-pecuniary damages in the amount of $200,000.
Pecuniary Damages
The Commission requires objective evidence in support of these expenses,
typically in the form of receipts, bills, physicians' statements, or
other proof of actual loss and expenses. 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 4 (July 14, 1992).
We next consider complainant's request for pecuniary damages. Here, the
agency contends that complainant failed to establish a nexus between her
medical expenses and the agency's discriminatory actions. Given our
review of the record, however, we find that the agency's argument
lacks merit. We find that complainant supplied medical evidence in
support of much of her claim for damages. Specifically, complainant
submitted medical evidence that she underwent an MRI in October 2000 in
relation to her migraine headaches at a cost of $3,472.00; an ultrasound
and a PET scan in October 1999 when she suffered from severe abdominal
pain, bloating and irritable bowel syndrome, at a cost of $676.00 and
$1212.00 respectively; and underwent an oral pathology and oral surgery
related to her cheek-biting problem at a cost of $124.00 and $475.00
respectively. The record also reveals that complainant incurred bills
totaling $317.00 for visits to her neurologist regarding her migraines,
and bills of $110.00 and $847.00 from her urologist for visits related to
her bloating and stomach pains. Further, as discussed earlier, all these
visits, exams and surgeries occurred during the period that complainant
alleged that the discrimination, harassment and reprisal were occurring,
and that, as discussed above, that complainant conclusively linked her
conditions to the discriminatory events.
The agency also argues that assuming, arguendo, that complainant
established a causal nexus between her reported medical complications and
her workplace conditions, complainant introduced no bills or receipts to
support the $7,233.00 pecuniary damage award. In response, complainant
contends that the itemized list in the record which summarized the
expenses and costs for her medical providers and procedures, along with
her physician's report attributing several of the physical symptoms for
which she had to seek medical treatment to stress from work was sufficient
to establish complainant's expenses for the purpose of proving pecuniary
damages. We note that while complainant's submissions may be sufficient
to establish a causal nexus, they do not in and of themselves constitute
objective evidence of complainant's medical expenses. Nevertheless,
the record clearly reflects that complainant underwent the procedures for
which she submitted the itemized list, that they were undertaken during
the time of the alleged discriminatory events, and that they were causally
linked to the discrimination. Therefore, to the extent that complainant is
able to submit objective evidence of her pecuniary expenses as explained
in the order below, we will permit complainant to recover those damages
in an amount not to exceed the $7,233.00 discussed herein.<3>
CONCLUSION
After a careful review of the record, including arguments and evidence
not specifically discussed in this decision, the Commission reverses the
portion of the agency's final order which denied complainant the full
amount of the non-pecuniary compensatory damages awarded by the AJ,
and modifies the award of pecuniary damages. Accordingly, the agency
is directed to take corrective action in accordance with this decision
and the Order below.
ORDER (D0403)
To the extent it has not already done so, the agency is ordered to take
the following remedial action:
1. The agency shall pay complainant compensatory damages in the amount of
$200,000.00, within sixty (60) calendar days of the date this decision
becomes final. In addition, the agency shall, within ten (10) days of
the date this decision becomes final, afford complainant thirty (30)
days to submit the documentation which fully supports the amounts
she requested for past medical expenses. Within thirty (30) days of
its receipt of the subject documentation, the agency shall recalculate
complainant's entitlement to past medical expenses, and pay complainant
the past medical expenses for which documentation has been submitted.
A copy of the documentation supporting the calculation and payment of
past medical expenses and compensatory damages, must be sent to the
Compliance Officer, as referenced below.
2. The agency shall implement the corrective equitable relief ordered
by the AJ and adopted in its final agency decision.
3. The agency shall provide a minimum of eight (8) hours of remedial
training for all managers and supervisors located at the facility, to
ensure that acts of harassment and reprisal do not recur, and that no
retaliatory acts are taken against any employee who opposes unlawful
discrimination, requests religious accommodation, or engages in the
EEO process.
4. The agency shall consider discipline for the managers and supervisors
who have been found to have created a hostile environment and permitted it
to exist. The agency shall report its decision. 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.
5. The agency shall pay attorney's fees in the amount of $78,749.75 and
costs in the amount of $4,369.96.
6. 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 backpay and other benefits due complainant,
including evidence that the corrective action has been implemented.
POSTING ORDER (G0900)
The agency is ordered to post at its facility in West Los Angeles,
California, 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:
______________________________
Stephen Llewellyn
Acting Executive Officer
Executive Secretariat
September 23, 2004
__________________
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 Title VII of the Civil Rights Act of 1964, as amended,
42 U.S.C. � 2000e et seq. has occurred at the VA's Medical Center in
West Los Angeles, California.
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 privileges of
employment.
The VA Medical Center in West Los Angeles, California supports and will
comply with such Federal law and will not take action against individuals
because they have exercised their rights under law.
The VA Medical Center in West Los Angeles, California, was found to
have unlawfully discriminated against the individual when she was
harassed and subjected to reprisal in that her pay step was lowered,
she was denied favorable work assignments, denied overtime, and had
inaccurate comments placed on her performance appraisal. The agency has
been ordered to reverse the step decrease and provide other equitable
relief and compensatory damages. The agency has also been ordered to
provide appropriate training to managers and supervisors and ensure
that appropriate steps are taken to prevent a recurrence of the unlawful
discrimination. The VA Medical Center in West Los Angeles, California
will ensure that officials responsible for personnel decisions and
terms and conditions of employment will abide by the requirements of
all Federal equal employment opportunity laws.
The VA Medical Center in West Los Angeles, California 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 participates in proceedings pursuant to, Federal equal employment
opportunity law.
______________________________
Date Posted: ___________
Posting Expires: ________
29 C.F.R. Part 1614
1The AJ found that complainant was not discriminated against based on
her age with regard to any of complainant's allegations. Further, the
AJ found that complainant did not show that she subjected to unlawful
discrimination on any basis with regard to the issues involving
compensatory time, changes in schedule, and a issued reprimand.
2The agency did not contest the AJ's award of attorney's fees or costs.
3We note that the Commission has previously held that, under the
collateral source rule, payments made by a health insurer for treatment on
a complainant's behalf cannot be used to reduce a compensatory damages
award. Wallis v. USPS, EEOC Appeal No. 01950510 (November 13, 1995);
Johnson v. Department of the Interior, EEOC Appeal No. 01961812 (June
18, 1998).