07A20129
10-27-2003
Betty A. Gamez, Complainant, v. Jo Anne B. Barnhart, Commissioner, Social Security Administration, Agency.
Betty A. Gamez v. Social Security Administration
07A20129
October 27, 2003
.
Betty A. Gamez,
Complainant,
v.
Jo Anne B. Barnhart,
Commissioner,
Social Security Administration,
Agency.
Appeal No. 07A20129
Agency No. 99-0066-SSA
Hearing No. 110-AO-9043X
DECISION
Following the agency's September 10, 2002 final order, complainant and
the agency each filed timely appeals, which the Commission consolidated
under EEOC Appeal No. 07A20129 and which the Commission accepts pursuant
to 29 C.F.R. � 1614.405. In its final order, the agency did not adopt
either the EEOC Administrative Judge's finding of discrimination,
or her order of compensatory non-pecuniary damages. Subsequently,
however, by letter dated November 19, 2002, the agency amended its final
order, adopting the AJ's finding of discrimination, but rejecting the
compensatory damage award. For the following reasons, the Commission
REVERSES the agency's decision to reject the compensatory damage award.
Complainant, a former GS-12 EEO Specialist, at the agency's Atlanta,
Georgia facility, filed a formal EEO complaint with the agency on November
1, 1998, alleging that the agency had discriminated against her on the
basis of disability when:
(1) her request for reasonable accommodation (request to tele-commute
from home) was denied on July 8, 1998; and
her supervisor (S1) denied her alternative request to be assigned to
a work area where all the terms delineated by her physicians were met.
At the conclusion of the investigation, complainant was provided a
copy of the investigative report and requested a hearing before an EEOC
Administrative Judge (AJ). Following a hearing, the AJ concluded that
the agency discriminated against complainant when, as of approximately
June 12, 1998, it failed to provide her reasonable accommodation.<1> The
AJ found that the evidence established that the denial of accommodation
caused complainant stress and emotional discomfort, and related symptoms,
as well as the aggravation of complainant's physical condition and of
the long-term effects of her condition.<2> The AJ additionally found
that as of June 12, 1998,<3> the agency failed to make a good faith
effort to accommodate complainant. The AJ ordered the agency to:
(1) pay complainant $90,000.00 in non-pecuniary damages; (2) post a
notice on all employee bulletin boards indicating that it discriminated
against an employee in violation of the Commission's regulations and
the Rehabilitation Act; and (3) pay complainant's attorney's fees in
the amount of $35,588.00, and costs in the amount of $1,621.54.
On appeal, the agency challenges only the AJ's award of non-pecuniary
compensatory damages. The agency argues that complainant has failed
to establish a causal relationship between the discrimination and her
condition after June 12, 1998. The agency contends that a pre-existing
condition analysis applies here. The agency contends that the evidence
in the record indicates that complainant's condition began to worsen when
complainant first arrived at the facility in August of 1997, and that her
condition after June 12, 1998 (which marks the beginning of the agency's
failure to accommodate), was not worse than it was between August 1997
and June 1998. The agency also contends that the award of $90,000.00 is
not consistent with awards made in similar cases. Complainant makes no
new contentions on appeal but requests $300,000.00 �based on the great
physical pain and discomfort, mental stress and anxiety, and financial
burden she has endured due to her disease and the agency's treatment of
her because of her disease.� See Complainant's Response to Agency's
Second Set of Interrogatories and Request for Production of Documents
at Exhibit B.
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. National Labor Relations Board, 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.
Initially, we note that in order to escape liability for compensatory
damages in a reasonable accommodation case, the agency must demonstrate
that it acted in good faith. We concur with the AJ's finding that
beginning on approximately June 12, 1998, the agency failed to act in
good faith to accommodate complainant. Accordingly, the agency is not
relieved of its obligation to award appropriate compensatory damages.
See Teshima v. United States Postal Service, EEOC Appeal No. 01961997
(May 5, 1998).
The particulars of what relief may be awarded, and what proof is
necessary to obtain that relief, are set forth in detail in EEOC's
Enforcement Guidance: Compensatory and Punitive Damages Available Under
Section 102 of the Civil Rights Act of 1991 (July 14, 1992) (Guidance).
Briefly stated, the complainant must submit evidence to show that the
agency's discriminatory conduct directly or proximately caused the losses
for which damages are sought. Guidance at 11-12, 14. The amount awarded
should reflect the extent to which the agency's discriminatory action
directly or proximately caused harm to the complainant and the extent
to which other factors may have played a part. Guidance at 11-12.
The amount of non-pecuniary damages should also reflect the nature and
severity of the harm to the complainant, and the duration or expected
duration of the harm. Guidance at 14.
In support of her claim for non-pecuniary damages, complainant, her
husband, her co-worker and close friend, and another close friend,
provided testimony. The witnesses testified that due to the agency's
failure to accommodate complainant, which caused her to have to work in
an environment that was toxic to her, complainant was harmed as follows:
Complainant's relationship with her husband deteriorated;
Complainant's husband retired from work in order to care for her;
Complainant had very visible outbreaks, including splotchy skin, white
hair, swollen and puffy lips, redness in the face;
Complainant had other physical symptoms, including burning eyes,
headaches, and blistered lips;
Complainant was no longer able to wear makeup or cologne, and could only
wear certain fabrics or clothing;
Complainant and her husband had to get out of a contract on their house
because it was full of mold, and complainant and her husband were living
out of their car, or with their brother or sister whenever they would
allow them to stay;
Complainant used to be very outgoing, vocal, optimistic, bubbly
and athletic, however, she became withdrawn and less active, did not
participate in social activities, and was diagnosed with depression for
which anti-depressants were prescribed; and
Complainant often heard people in the regional office talking about the
�Betty Disease,� and consequently, she had lowered self-esteem.
Several doctors who had treated complainant testified that her symptoms
were related to her work environment. Complainant's primary care
physician asserted that although complainant did have urticaria before
coming to the agency facility in question in August 1997, her symptoms
were mild at that time. He stated that prior to complainant's arrival
at this facility she never had a pattern of outbreaks. The physician
further noted that complainant's symptoms would flare up during the
week and would often improve on the days when she did not go into the
building. He further noted that he had been frustrated because if the
agency had complied with his recommendations, complainant's symptoms
would have improved.
We find based on the evidence in the record, that it is not mere
speculation that had the agency made adequate efforts to seek a work
environment that was not toxic for complainant, then her physical symptoms
would have improved significantly. Neither is it speculative that
if complainant's physical symptoms had been alleviated, her emotional
distress would also have subsided significantly. As to the duration
of her symptoms, complainant's primary care physician characterized
the illness as being �ongoing and indefinite,� and he asserted that
complainant's symptoms were most severe between 1997 and 1998, however,
her problems continued into 2001.<4>
Contrary to the agency's contention, we find that complainant has
established a causal connection between her physical and emotional
symptoms and the agency's failure to accommodate her; specifically,
there is substantial evidence in the record to support a finding that
complainant's work environment was the cause of her physical symptoms,
which in turn caused her emotional distress. Additionally, substantial
evidence in the record indicates that when complainant was away from her
work site her symptoms improved. Further, we find that the agency's use
of a pre-existing condition analysis is misguided. The evidence of record
indicates that complainant began experiencing severe physical symptoms as
soon as she arrived at the facility, which caused her emotional distress.
The agency argues that it has not caused complainant harm, because there
is no evidence that her condition was exacerbated after June 12, 1998.
Even assuming that complainant's condition did not worsen as of June 12,
1998, the agency must still compensate complainant for her continuing
symptoms, because in these circumstances, accommodating her would have
alleviated those symptoms. Thus, we measure the nature, severity and
duration of the harm suffered between June 12, 1998 and March 2001,
without comparing it to the harm that complainant endured at any time
prior to June 12, 1998.
Complainant has requested $300,000 in non-pecuniary damages, and the
agency argues that no non-pecuniary damages are warranted. After a
thorough review of the record, we agree that an award of $90,000.00
is appropriate to compensate complainant for her pain and suffering
between June 12, 1998 and March 2001. We point out that non-pecuniary
compensatory damages are designed to remedy a harm and not to punish
the agency for its discriminatory actions. See Memphis Community School
Dist. v. Stachura, 477 U.S. 299, 311-12 (1986) (stating that compensatory
damages determination must be based on the actual harm sustained and
not the facts of the underlying case). The Commission notes that this
award is not �monstrously excessive� standing alone, is not the product
of passion or prejudice, and is consistent with the amount awarded in
similar cases. See Michener v. United States Postal Service, EEOC Appeal
No. 07A10031 (May 3, 2002) ($87,000.00 awarded where the agency's failure
to reasonably accommodate permanently changed complainant's life and
she had to change how she dressed and maintained her personal hygiene).
The agency is ordered to take remedial actions in accordance with this
decision and order below.
ORDER
Within sixty (60) days of the date this decision becomes final and to
the extent it has not already done so, the agency is ordered to:
pay complainant $90,000.00 in non-pecuniary damages;
post the attached notice on all employee bulletin boards indicating
that it has been found to have discriminated against an employee in
violation of the Commission's regulations and the Rehabilitation Act; and
pay attorney's fees in the amount of $35,588.00, and costs in the amount
of $1,621.54.
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 (S0900)
You have the right to file a civil action in an appropriate United States
District Court within ninety (90) calendar days from the date that you
receive this decision. If you file a civil action, you must name as
the defendant in the complaint the person who is the official agency head
or department head, identifying that person by his or her full name and
official title. Failure to do so may result in the dismissal of your
case in court. "Agency" or "department" means the national organization,
and not the local office, facility or department in which you work. If you
file a request to reconsider and also file a civil action, filing a civil
action will terminate the administrative processing of your complaint.
RIGHT TO REQUEST COUNSEL (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
October 27, 2003
__________________
Date
1 The AJ noted that on September 16, 1998, complainant went on sick leave,
and ultimately retired on disability.
2 Complainant asserts that she suffers from chronic urticaria,
dermatographism, and formaldehyde allergy. Urticaria is a transient
condition of the skin, usually caused by an allergic reaction,
characterized by pale or reddened irregular, elevated patched and severe
itching, hives. Dermatographism is a form of urticaria.
3 On June 12, 1998, complainant's physician outlined the requirements
needed for complainant to work in an office environment, and recommended
that complainant be permitted to tele-commute.
4 The AJ noted that complainant's doctor testified that as of March
2001, complainant still had problems with chronic recurrent urticaria
and headaches.