01A13141
04-09-2002
Eva D. Lauzon, Complainant, v. Anthony J. Principi, Secretary, Department of Veterans Affairs, Agency.
Eva D. Lauzon v. Department of Veterans Affairs
01A13141
April 9, 2002
.
Eva D. Lauzon,
Complainant,
v.
Anthony J. Principi,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 01A13141
Agency No. 98-3478
Hearing No. 310-99-5614X
DECISION
Complainant timely initiated an appeal from the agency's final order
concerning her equal employment opportunity (EEO) complaint of unlawful
employment discrimination in violation of Title VII of the Civil Rights
Act of 1964 (Title VII), as amended, 42 U.S.C. � 2000e et seq. , Section
501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended,
29 U.S.C. � 791 et seq. , and the Age Discrimination in Employment Act
of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq. The appeal is
accepted pursuant to 29 C.F.R. � 1614.405. For the following reasons,
the Commission AFFIRMS the agency's final order.
The record reveals that complainant, a Food Service Worker at the
Veterans Affairs Medical Center, Oklahoma City facility, filed a
formal EEO complaint on September 22, 1998, alleging that the agency
had discriminated against her on the bases of sex (female), disability
(lower back, right leg injury), and age (D.O.B. 3/7/41) when:
(1) she was denied a reasonable accommodation for her back condition;
(2) she was not given a permanent appointment;
(3) she was subjected to harassment.
At the conclusion of the investigation, complainant received a copy
of the investigative report and requested a hearing before an EEOC
Administrative Judge (AJ). Following a hearing, the AJ issued a decision
finding that the agency had discriminated against complainant on the
basis of her disability.
Specifically, the AJ concluded that complainant demonstrated she had
an impairment to the iliolumbar ligaments of her back caused by a fall,
which substantially limited her ability to stand for more than 2 hours,
to walk, to push or pull, or to lift more than 20 pounds. She further
found that as of the date of the hearing in November 1999, more than
a year and a half after the injury, complainant had reached maximum
medical improvement within the limitations noted above. Based on these
conclusions, the AJ concluded that complainant was an individual with
a disability who could perform the essential functions of her job as a
cashier as long as the agency provided her with the accommodation of a
chair to sit on while working.
The AJ found that the agency was informed of the complainant's medical
condition but failed to provide her with a reasonable accommodation.
In this regard, the AJ determined that the head cashier gave complainant
a chair at her request but only after her supervisor ignored complainant's
request. Furthermore, the AJ cited evidence that complainant's supervisor
rarely permitted complainant to use the chair during the course of her
work day and eventually removed the chair from her work station. The AJ
also concluded that the agency issued complainant a written �point of
contact� or a reprimand, related to her request for the chair.
Based on the evidence, the AJ found the agency had discriminated against
complainant for failing to provide her with a reasonable accommodation
for her disability. The AJ awarded complainant compensatory damages
in the amount of $2,000.00 for her physical and emotional distress
caused by the agency's failure to accommodate her disability. She also
awarded complainant attorney's fees of $4,175.00 based on the work he
performed in proving and prevailing on complainant's claim of disability
discrimination.
The AJ concluded that complainant failed to establish a prima facie
case of age or sex discrimination and failed to show by a preponderance
of the evidence that she was discriminated against on these bases.
The agency's final order implemented the AJ's decision in its award of
compensatory damages and attorney's fees.
On appeal, complainant argues that the AJ's award of compensatory damages
was insufficient and against the weight of the evidence which she argued
supported a much larger award. The agency makes no additional arguments
on 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. 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.
After a careful review of the record, the Commission finds that the
AJ's findings of fact with respect to the award of compensatory damages
are supported by substantial evidence in the record and that the AJ's
decision properly summarized the relevant facts and referenced the
appropriate regulations, policies, and laws.
Where a discriminatory practice involves the provision of a reasonable
accommodation, compensatory damages may not be awarded where the employer
demonstrates good faith efforts to identify and reasonably accommodate
complainant. Pitchford v. United States Postal Service, EEOC Appeal
No. 01973982 (Dec. 12, 2000) (citing 42 U.S.C. � 1981a(a)(3)). The AJ
did not explicitly find that the agency failed to demonstrate good
faith efforts in awarding complainant compensatory damages, therefore,
we examined the facts to determine whether the agency made good faith
attempts to accommodate complainant's disability. In this respect, the
AJ credited the statements of complainant and the Supervisory Operations
Clerk (E1) that complainant provided her supervisor with a doctor's note
requesting that she be allowed to sit while working but that the agency
ignored the request. E1 stated that after a week passed she took it
upon herself to get complainant a chair. Complainant testified that her
supervisor took the chair E1 found for her and placed it in the dish room.
The record also supports the AJ's conclusion that complainant received a
reprimand most likely as a result of her request for an accommodation and
that once a chair was provided, complainant was not allowed to use it.
In addition, the agency's witness who was most closely responsible for
the actions complained of, did not testify and controvert complainant's
testimony. Based on these facts, there is substantial evidence in the
record to support the AJ's implicit conclusion that the agency did not
act in good faith in providing complainant with a reasonable accommodation
and that therefore, she could be awarded compensatory damages.
We turn now to the issue of whether the amount of the AJ's award of
compensatory damages was supported by the evidence of record or should
be increased. Section 102(a) of the 1991 Civil Rights Act authorizes
an award of compensatory damages for all 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. To receive an
award of compensatory damages, a complainant must demonstrate 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 reconsid. denied, EEOC Request No. 05940927
(December 8, 1995); EEOC 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).
A complainant is required to provide objective evidence that will allow
an agency to assess the merits of her request for damages. See Carle
v. Department of the Navy, EEOC Appeal No. 01922369 (January 5, 1993).
The award should take into account the severity and duration of the harm.
Carpenter v. Department of Agriculture, EEOC Appeal No. 01945652 (July
17, 1995). Non-pecuniary and future pecuniary damages are limited
to an amount of $300,000.00. 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. See Ward-Jenkins v. Department of the Interior, EEOC
Appeal No. 01961483 (March 4, 1999).
In this case, the period of time during which the agency denied
complainant a reasonable accommodation was a five month period.
Complainant testified to the emotional and physical distress she
experienced which she stated was so severe that she was compelled to
visit the Employee Assistance Program (EAP) on 6 occasions and had to
return to her physician on 7 occasions for treatment. We find, however,
that two of the medical records in evidence indicate treatment long after
she had left the agency's employment, therefore, they were not shown to
be related to the discriminatory actions of the agency. In addition, the
medical records that were made available do not indicate clinical findings
showing a worsening of complainant's condition related to being forced
to stand. Complainant's emotional distress related to the difficulty she
had obtaining a reasonable accommodation, was corroborated by a union
representative who stated that he observed her having a panic attack -
shaking violently, sweating profusely, and that complainant appeared
wan and unsteady. Based on his observation, he stated he advised her
to visit the EAP. There was no other evidence of additional panic
attacks and there is no indication in the record that complainant was
taking medication for treatment of her emotional distress. Therefore, we
conclude that complainant suffered a single episode of panic and limited
her treatment for the emotional distress to consultations with EAP.
Comparing complainant's case to other cases in which the Commission has
awarded compensatory damages similar to the award by the AJ in this case,
we are satisfied that the amount awarded is reasonable based on these
particular facts and circumstances. See Bates v. Department of the Air
Force, EEOC Appeal No. 01985401 (October 31, 2000) (Commission awarded
$2,000.00 in non-pecuniary damages for pain, suffering, humiliation);
Harris v. Department of Agriculture, EEOC Appeal No. 01966746 (December
12, 1998) (Commission awarded $2,000.00 in non-pecuniary damages for
low self-esteem, stress and depression related to the agency's failure
to promote).
CONCLUSION
Therefore, after a careful review of the record, including complainant's
contentions on appeal, the agency's response, and arguments and evidence
not specifically addressed in this decision, we AFFIRM the agency's
final order fully implementing the AJ's decision, the provisions of
which are set forth below.
ORDER
The agency will take the following remedial action within 45 days of
the date of this Order:
The agency will pay complainant's reasonable attorney's fees and costs
in the amount of $4,175.00;
The agency will pay complainant $2,000.00 in compensatory damages;
The agency will post notice in accordance with the Order below.
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 Veterans Affairs Medical Center
Canteen Service, Oklahoma City, Oklahoma 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.
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.
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.
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
April 9, 2002
Date