Betty A. Gamez, Complainant,v.Jo Anne B. Barnhart, Commissioner, Social Security Administration, Agency.

Equal Employment Opportunity CommissionOct 27, 2003
07A20129 (E.E.O.C. Oct. 27, 2003)

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.