0120082106
01-06-2010
Estate of Mary L. Chase,1 Complainant, v. Ray Mabus, Secretary, Department of the Navy, Agency.
Estate of Mary L. Chase,1
Complainant,
v.
Ray Mabus,
Secretary,
Department of the Navy,
Agency.
Appeal No. 0120082106
Agency No. DON-04-61449-001
DECISION
On March 28, 2008, complainant filed an appeal from the agency's February
15, 2008 final decision concerning the award of compensatory damages
pursuant to her equal employment opportunity (EEO) complaint alleging
employment discrimination in violation of the Rehabilitation Act of 1973,
29 U.S.C. � 791 et seq., and the Age Discrimination in Employment Act of
1967, 29 U.S.C. � 621 et seq. For the following reasons, the Commission
AFFIRMS the agency's final decision.
At the time of events giving rise to this complaint, complainant worked
as a Bartender, NA-7405-05, at the agency's Club Pearl facility in Pearl
Harbor, Hawaii. Complainant was terminated with more than 23 years of
federal service.
On November 5, 2003, complainant filed an EEO complaint wherein she
claimed that she was discriminated against on the bases of disability
(paralyzed right arm) and age (63) when on June 27, 2003, she was
terminated from her Bartender position.
At the conclusion of the investigation, complainant was provided with a
copy of the report of investigation and notice of her right to request
a hearing before an EEOC Administrative Judge (AJ). In accordance with
complainant's request, the agency issued a final action pursuant to 29
C.F.R. � 1614.110(b).
On April 5, 2007, the agency determined that complainant proved that
she was subjected to discrimination on the basis of disability but not
with regard to the basis of age. The agency noted that complainant's
disability was a total, permanent paralysis of her right arm, which
deprived her of all use of that arm. The agency determined the disability
was caused by an automobile accident in 1981 that severed nerves from
her spine, and affected her deltoid and biceps muscles. Complainant was
rendered unable to lift or carry items with her right arm. Complainant
had very limited use of her right hand except for limited grasping of
very light objects and limited writing. Complainant stated that using
her right hand is very painful and she takes pain medication for the
chronic pain in her thumb.
From 1985 to January 2002, the agency accommodated complainant by
providing automatic pour spouts. This accommodation allowed complainant
to pour shot glass contents into a customer's glass in one step, rather
than four steps. In January 2002, complainant's Supervisor informed her
that she would no longer be permitted to use the pour spouts because other
staff would want to use them and they were not accurate. Subsequent to
losing use of the pour spouts, complainant began to receive discipline for
various violations. She received a verbal counseling on April 12, 2002,
for a $15.50 shortage; a Letter of Warning on July 31, 2002, for a $10.50
overage; a Letter of Caution on August 29, 2002, for a $11.00 overage; a
Letter of Warning on October 16, 2002, for a $35.00 overage; and a Letter
of Caution on October 21, 2002, for a $14.50 shortage. On January 3,
2003, complainant was issued a Decision on a Proposed Three Calendar Day
Suspension for cash discrepancy that was effective from January 21-23,
2003. Additionally, on July 31, 2002, complainant received a Letter
of Caution for failure to report to work on time. On March 10, 2003,
complainant received a Notice of Proposed Ten-Calendar Day Suspension
for being a half hour late. The suspension was subsequently reduced
to five days. On May 13, 2003, complainant was issued a Proposed
Termination for a cash handling discrepancy of $40.00. A Decision on
Proposed Termination was subsequently issued on June 4, 2003.
The agency determined that complainant established a prima facie
case of disability discrimination. The agency found that complainant
was disabled, regarded as disabled and had a record of a disability.
The agency noted that complainant successfully performed the duties
of a Bartender for 17 years while using the automatic pour spouts as a
reasonable accommodation. Complainant's Supervisor stated that with an
automatic pour spout, bartenders are unable to witness the amount of
liquor poured from the bottle, and that the spouts impeded the speed
with which the employees needed to work. The Supervisor claimed that
the other bartenders did not like using them and the spouts affected bar
inventory accountability. The agency stated that there was no evidence
to support management's position that the automatic pour spouts did
not measure correctly, or that the spouts used for the past 17 years
were inaccurate. The agency determined that the alleged inventory
discrepancies occurred after the Supervisor discontinued the use of the
pour spouts, and not because the bartenders misused the pour spouts.
The agency stated that there was also no evidence that other employees
did not want to use the spouts or that complainant's use of automatic
spouts would cause an undue hardship for the agency.
With regard to her termination, complainant claimed that the loss of
the spouts as an accommodation slowed her down and caused her stress.
She stated that this was the primary reason she made the mistakes that
led to cash discrepancies and ultimately her termination. The agency
determined that management's failure to accommodate complainant's
disability was a significant factor in her performance deficiencies.
The agency reasoned that although other factors such as complainant's
difficulty in adjusting to a new computerized cash register may have
adversely affected her job performance, the removal of the pour spouts
had a substantial impact on the speed in which she could work, and this
contributed significantly to her work-related stress and mistakes, which
caused her termination. An offer of reemployment was made to complainant
on April 29, 2007, which complainant declined on May 4, 2007.
With respect to the claim of age discrimination, the agency determined
that complainant failed to show that similarly situated persons not of
her protected group were treated more favorably. The agency stated
that it was not established that age was a factor in the relevant
actions. Complainant had stated that one employee four years older
and another five years older than her were told to quit or be fired
for cash discrepancies. The agency indicated that the only other
employee who was terminated for cash discrepancies was born in 1970 and
thus not in complainant's protected age group. However, as a flexible
schedule employee with a brief tenure, the agency stated that he was not
similarly situated to complainant. The agency noted that one employee
in complainant's protected age group received a proposed termination
but unlike complainant, she did not have a five month period prior to
her termination without any infractions.
As a result of the finding of disability discrimination, the agency
afforded complainant an opportunity to submit evidence of her entitlement
to compensatory damages. In a February 15, 2008 final decision on the
issue of compensatory damages, the agency issued complainant an award
of non-pecuniary damages in the amount of $60,000.00. Complainant was
also awarded $13.50 in pecuniary damages for her out-of-pocket expenses.
The agency states that as to pecuniary damages, the record disclosed
one prescription for 60 tablets of Citalopram at $9.00 and a second
prescription for 30 tablets of the same medication at an unspecified
price. The agency assigned a cost of $4.50 to reflect half of the
original prescription but noted that the record was otherwise devoid
of evidence of any expenditures made for medical treatment. As to
non-pecuniary damages, the agency noted that complainant stated that as
a result of her depression, she isolated herself at home, was unable to
care for her daughter during her cancer treatment, stopped caring about
her physical appearance and lost weight. Complainant stated that she
gave up looking for employment and felt uncomfortable going to Club
Pearl to visit friends, and stopped going out anywhere. Complainant
claimed that she spent all of her time in bed watching television.
Complainant requested two million dollars in compensatory damages.
The agency determined that complainant suffered depression, withdrawal
from family and friends, and humiliation as a result of the discriminatory
action. The agency noted that complainant stated that her stress and
anxiety started a year before she was terminated, when the agency removed
an accommodation complainant had for 17 years. The agency took into
account statements from complainant's daughters, a friend and a former
coworker to the effect that complainant had enjoyed her job and done
it well, and had been a busy, friendly, outgoing person prior to the
removal of the accommodation and her termination. The agency noted that
these individuals also indicated that after complainant was terminated,
she became filled with anxiety, became deeply depressed and withdrawn;
lost one-third of her weight; and generally lost all enjoyment of life.
The agency reasoned that although the illness of complainant's daughter,
diagnosed approximately two years after the termination, may have
contributed to her depression, the overwhelming evidence showed
that complainant's debilitating depression was attributable to the
discrimination.
In addition to the compensatory damages award, the agency also ordered
that it offer to reemploy complainant in the position of Bartender,
NA-7405-05, retroactive to June 27, 2003. The agency included among
the other ordered remedies that complainant be paid all benefits to
which she would have been entitled, including back pay with interest,
had she remained in her position after June 27, 2003.
On appeal, complainant contends that the award of compensatory damages
should be increased to reflect the downward spiral in her life since
her termination. Complainant maintains that she was not suffering
from depression prior to her termination. According to complainant,
her depression has caused her to become physically weak and unable to go
anywhere alone since her legs give out from under her when she walks.
She states that she uses a wheelchair when she leaves home and is
incapable of driving her car. Complainant states that she rarely
leaves her bedroom when she is home and that she does not socialize
with her family members in any other room. She claims that she begins
to feel panicky and nervous when more than two people are in her room
for too long.
In response, the agency asserts that the compensatory damages award of
$60,000.00 should not be increased. The agency notes that evidence
submitted on appeal established that complainant had a number
of debilitating preexisting medical conditions that preceded the
discriminatory activity. The agency states that the medical evidence
submitted by complainant reflects she had been on an anti-depressant
medication, amitriptyline, for years prior to the discrimination and that
complainant suffered from serious medical conditions that could have been
mitigated by following good health practices and her physicians' advice.
According to the agency, in January 2001, complainant acknowledged after
being admitted to the hospital for a congestive heart failure exacerbation
that she had been smoking approximately two cigarette packs per day
times 30 years and that she has 3-4 drinks per day. The agency notes
that a consultation report dated October 3, 2000, stated that complainant
indicates she had shortness of breath associated with anxiety on a daily
basis over the past year and a half. The agency states that in its final
action, which considered only the medical evidence submitted in June 2007,
it presumed complainant's depression was a result of the discrimination
and not a preexisting condition. The agency asserts that in light of the
new medical evidence, its compensatory damage award could be substantially
lower, but states that it will stand by its award of $60,000.00.
Initially, we note that neither party challenges the agency's
determination that there was no age discrimination or the agency's
finding of disability discrimination.2 Moreover, we note complainant
does not challenge the agency's award of $13.50 in pecuniary damages.
Thus, we AFFIRM those determinations herein.
Section 102(a) of the 1991 Civil Rights Act authorizes an award of
compensatory damages for post-Act pecuniary losses, and for non-pecuniary
losses, such as, but not limited to, emotional pain, suffering,
inconvenience, mental anguish, loss of enjoyment of life, injury to
character and reputation, and loss of health. See West v. Gibson, 527
U.S. 212 (1999). In this regard, the Commission has authority to award
such damages in the administrative process. Compensatory damages do not
include back pay, interest on back pay, or any other type of equitable
relief authorized by Title VII. To receive an award of compensatory
damages, complainant must demonstrate that he or 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), request for reconsideration denied, EEOC Request No. 05940927
(December 11, 1995); 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 11-12, 14 (July 14, 1992)
("Guidance").
The Commission notes that for a proper award of non-pecuniary damages,
the amount of the award should not be "monstrously excessive" standing
alone, should not be the product of passion or prejudice, and should be
consistent with the amount awarded in similar cases. A complainant's
testimony may be solely sufficient to establish emotional harm. EEOC
Guidance: Compensatory and Punitive Damages Available Under Section 102 of
the Civil Rights Act of 1991, EEOC Notice N-915.002 (July 14, 1992) at 6.
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. Non-pecuniary damages must
be limited to the sums necessary to compensate the injured party for
the actual harm and should take into account the severity of the harm
and the length of time the injured party has suffered from the harm.
Carpenter v. Department of Agriculture, EEOC Appeal No. 01945652 (July
17, 1995).
Based on the record, the Commission finds that the award of $60,000.00
is sufficient to remedy the harm that the agency's actions caused
complainant. The record established by way of statements from
complainant, her daughters, a friend and a former coworker that
complainant experienced emotional and physical problems as a result of
the discrimination that she experienced. The record reveals that the
discrimination caused complainant to experience significant depression, a
loss of enjoyment of life, a loss of one-third of her weight and physical
weakness, an inability to assist a daughter going through chemotherapy,
withdrawal from family and friends due to her depression, and stress and
anxiety. Prior to the removal of the accommodation and the termination,
complainant was a friendly, outgoing person who had enjoyed her job and
performed it effectively. The Commission has awarded compensatory damages
in cases somewhat similar to the instant case in terms of harm suffered.
Bullock III v. United States Postal Service, EEOC Appeal No. 07A40101
(August 3, 2005) (awarding $60,000.00 in non-pecuniary, compensatory
damages after termination when complainant felt confused, frustrated,
angry, embarrassed and depressed); Hicks, Jr. v. United States Postal
Service, EEOC Appeal No. 07A10020 (September 26, 2003) (awarding
$70,000.00 after termination when complainant experienced humiliation,
embarrassment and rejection); Levy v. Department of Veterans Affairs,
EEOC Appeal No. 01A01561 (May 12, 2003) (awarding $60,000.00 following
the denial of reasonable accommodation and subsequent termination
as complainant exhibited feelings of humiliation and shame, worry,
nervousness and anxiety). An award of $60,000.00 meets the goals of
not being motivated by passion or prejudice, not being "monstrously
excessive" standing alone, and being consistent with the amounts awarded
in similar cases. See Cygnar, supra.
The agency's final action is AFFIRMED.
ORDER
To the extent the agency has not already done so, it is ordered to take
the following remedial actions:
1. Within 30 days of the date this decision becomes final, the agency
shall pay complainant's estate all benefits to which she would have
been entitled, including back pay with interest, from June 27, 2003,
through May 4, 2007, the date complainant declined the agency's offer
of reinstatement.
2. Within 30 days of the date this decision become final, the agency
shall pay complainant's estate $60,000.00 in non-pecuniary damages and
$13.50 in pecuniary damages.
3. Within 180 days of the date this decision becomes final, the agency
shall train all responsible management and supervisory personnel in the
Club Pearl at Pearl Harbor, Hawaii concerning disability discrimination
under the Rehabilitation Act and the agency's duties under that statute
to ensure that similar violations do not occur.
4. Within 60 days of the date this decision becomes final, the agency
shall consider taking disciplinary action against the management officials
identified as being responsible for the discrimination in this matter.
The Commission does not consider training to be a disciplinary action.
The agency shall report its decision to the Commission in a compliance
report and specify what, if any, actions were taken. If the agency
decides not to take disciplinary action, it shall set forth the reasons
for its decision not to impose discipline.
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.
POSTING ORDER (G0900)
The agency is ordered to post at its Club Pearl work 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 (K1208)
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 77960, Washington,
DC 20013. 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 (M1208)
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 77960,
Washington, DC 20013. 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 (R0408)
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 (Z1008)
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 from the Court that
the Court appoint an attorney to represent you and that the Court also
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 with
the Court 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
January 6, 2010
__________________
Date
1 Complainant died on September 28, 2008, and we have substituted her
Estate as a party to this complaint.
2 Therefore, we need not address whether complainant is a disabled
individual because neither party is challenging such a determination.
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0120082106
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
9
0120082106