U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Lisa T.,1
Complainant,
v.
Robert Wilkie,
Secretary,
Department of Veterans Affairs
(Veterans Health Administration),
Agency.
Appeal No. 0120180962
Hearing No. 430-2015-00187X
Agency No. 200406372014102964
DECISION
On January 19, 2018, Complainant filed an appeal with the Equal Employment Opportunity
Commission (EEOC or Commission), pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s
December 20, 2017 final order concerning her 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 AFFIRMS the Agency’s final order.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Registered
Respiratory Therapist, GS-8, at the Charles George VA Medical Center in Asheville, North
Carolina. On June 19, 2014, Complainant filed an EEO complaint alleging that the Agency
discriminated against her on the basis of disability when:
1. A supervisor (S1) told two of Complainant’s coworkers that he could have her fired
in 60 days and would buy the department a steak dinner;
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. S1 told two of complainant's coworkers, “I can't believe you even like her. If you
don't like her, I can get her fired;”
3. Complainant received a proposed 14-day suspension that was later mitigated to a
seven-day suspension;
4. S1 made inappropriate comments about Complainant and another employee; and
5. Within Complainant’s hearing, S1 stated to another employee to file an EEO on
him and it would make him run away and quiver.
At the conclusion of the investigation, the Agency provided Complainant with a copy of the report
of investigation and notice of her right to request a hearing before an Equal Employment
Opportunity Commission Administrative Judge (AJ). Complainant timely requested a hearing.
The AJ assigned to the matter held a hearing on November 1, 2017 and issued a bench decision on
November 9, 2017. In the decision, the AJ found that Complainant had proven she had been
subjected to a hostile work environment based on her disability regarding claims (1), (2), and (4).
The AJ determined that Complainant had not established discrimination as to claim (5). The AJ
noted that the parties entered into a settlement agreement regarding claim (3).
To remedy the discrimination, the AJ ordered relief including $17,750 in nonpecuniary
compensatory damages and $15,500 in attorney’s fees and costs. The Agency subsequently issued
a final order fully adopting the AJ’s finding that Complainant proved that the Agency subjected
her to discrimination and the relief ordered.
Neither party has submitted any arguments either in support of or opposing the instant appeal.
ANALYSIS AND FINDINGS
Pursuant to 29 C.F.R. § 1614.405(a), all post-hearing factual findings by an AJ will be upheld if
supported by substantial evidence in the record. Substantial evidence is defined as “such relevant
evidence as a reasonable mind might accept as adequate to support a conclusion.” Universal
Camera Corp. v. Nat’l Labor Relations Bd., 340 U.S. 474, 477 (1951) (citation omitted). A finding
regarding whether or not discriminatory intent existed is a factual finding. See Pullman-Standard
Co. v. Swint, 456 U.S. 273, 293 (1982). An AJ's conclusions of law are subject to a de novo
standard of review, whether or not a hearing was held.
Hostile Work Environment
In this case, where neither party has specified any error in the proceedings below, our function is
simply to determine whether the AJ’s findings and the relief she ordered are legally correct and
supported by the record. With respect to claims (1), (2), and (4), on which Complainant prevailed,
the AJ found that the derogatory statements made by a supervisor and coworkers about
Complainant’s frequent asthma attacks and resulting absences from work created a hostile work
environment and were motivated by antipathy toward Complainant’s disability.
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We find that there was substantial testimonial evidence at the hearing to support the AJ’s
conclusion that the conduct at issue was sufficiently severe or pervasive to establish a hostile work
environment and based on Complainant’s disability. Accordingly, we find that the substantial
record evidence supports the AJ’s finding that Complainant was subjected to a hostile work
environment as to claims (1), (2), and (4).
On the claims where Complainant did not prevail, the AJ’s findings were also legally correct and
supported by substantial evidence. We find no basis to disturb the AJ’s findings regarding claims
(3) and (5). The AJ found that the facts underlying claim (3) had been the subject of a settlement
agreement and could not be the basis for a finding of discrimination in this action. With respect
to claim (5), the AJ made a credibility determination and found that the statement about the
supervisor being caused to “run away and quiver,” based on Complainant’s uncorroborated
testimony, had not, in fact, been made. Accordingly, we find that substantial record evidence
supports the AJ’s finding that Complainant was not subjected to discrimination or a hostile work
environment as to these claims.
REMEDIES
Non-Pecuniary Compensatory Damages
With respect to the relief ordered, the $17,750 in nonpecuniary compensatory damages awarded
is reasonable, not “monstrously excessive” and is consistent with awards made in similar cases.
See Cygnar v. City of Chicago, 865 F.2d 827, 848 (7th Cir. 1989). The AJ found that as a result
of being subjected to hostile work environment harassment for a period of four and a half months,
Complainant endured depression, humiliation and embarrassment. The Commission has awarded
similar amounts in comparable situations. See Queen L. v. Dep't of Agric., EEOC Appeal No.
0120160554 (Mar. 22, 2018) (complainant was awarded $15,000 for depression, anxiety, chronic
diarrhea, nausea, sleeplessness, and night sweats for five months.); and Dalton C. v. Dep't of Health
and Human Servs., EEOC Appeal No. 0120170077 (Mar. 27, 2018) (complainant awarded
$15,000 when the agency's denial of a reasonable accommodation for four months led to
depression, anxiety, loss of self-esteem and confidence, and a decline in general mood).
Attorney’s Fees
The award of attorney’s fees and costs was also appropriate. The $15,500 awarded represents a
40 percent reduction in the award requested by Complainant’s counsel on the theory that a
reduction in that amount was required because Complainant did not prevail on two of the five
claims set forth in the complaint. The AJ correctly held that attorney's fees may not be recovered
for work on unsuccessful claims. Hensley v. Eckerhart, 461 U.S. 424, 434-35 (1983)).
Courts have held that fee applicants should exclude time expended on “truly fractionable” claims
or issues on which they did not prevail. See Nat'l Ass'n of Concerned Veterans v. Sec'y of Defense,
675 F.2d 1319, 1327 n.13 (D.C. Cir. 1982). Claims are fractionable or unrelated when they involve
distinctly different claims for relief that are based on different facts and legal theories.
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Hensley, 461 U.S. at 434-35. Here, especially in light of the absence of argument from
Complainant or Complainant’s attorney on the subject, we find no basis to disturb the AJ’s
determination that a reduction in the fee award was warranted.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, including those not
specifically addressed herein, we AFFIRM the Agency’s final order. The Agency shall comply
with the relief in the following Order.
ORDER
To the extent that it has not already done so, the Agency is ordered to take the following actions:
1. Within 60 days of the date this decision is issued, pay Complainant $17,750 in
nonpecuniary compensatory damages.
2. Within 60 days of the date this decision is issued, pay Complainant $15,500 in attorney’s
fees.
3. Within 90 days of the date this decision is issued, provide no less than four hours in-person
or interactive EEO training to the Respiratory Therapy Supervisor and Respiratory
Therapist, identified in the AJ’s decision and the Agency’s final order, regarding their
responsibilities under the Rehabilitation Act, with special emphasis on the duty of
managers and employees with respect to hostile work environment harassment.
4. Consider taking appropriate disciplinary action against the Respiratory Therapy Supervisor
and Respiratory Therapist identified the AJ’s decision and the Agency’s final order. The
Commission does not consider training to be disciplinary action. The Agency shall report
its decision to the Compliance Officer. If the Agency decides to take disciplinary action,
it shall identify the action taken. If the Agency decides not to take disciplinary action, it
shall set forth the reason(s) for its decision not to impose discipline. If the responsible
officials have left the Agency's employ, the Agency shall furnish documentation of their
departure dates.
The Agency is further directed to submit a report of compliance, as provided in the statement
entitled “Implementation of the Commission's Decision.” The report shall include supporting
documentation verifying that the corrective action has been implemented.
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POSTING ORDER (G0617)
The Agency is ordered to post at its Charles George VA Medical Center in Asheville, North
Carolina copies of the attached notice. Copies of the notice, after being signed by the Agency's
duly authorized representative, shall be posted both in hard copy and electronic format by the
Agency within 30 calendar days of the date this decision was issued, and shall remain posted for
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 as directed in the paragraph entitled "Implementation of the
Commission's Decision," within 10 calendar days of the expiration of the posting period. The
report must be in digital format and must 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). 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.
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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.
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 (R0610)
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.
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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 (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
June 28, 2019
Date
