01A31297_r
08-05-2003
Genevieve M. Kuepfer, Complainant, v. Anthony J. Principi, Secretary, Department of Veterans Affairs, Agency.
Genevieve M. Kuepfer v. Department of Veterans Affairs
01A31297
August 5, 2003
.
Genevieve M. Kuepfer,
Complainant,
v.
Anthony J. Principi,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 01A31297
Agency Nos. 99-2716; 99-3174; 99-3985
Hearing Nos. 320-A0-8433X; 320-A1-8008X; 320-A1-8009X
DECISION
Complainant initiated an appeal alleging that the agency failed to
comply with its own final order issued May 22, 2002. The appeal is
accepted pursuant to 29 C.F.R. � 1614.504(a). The record reveals that
complainant, a Vocational Rehabilitation Counselor at the agency's Denver,
Colorado facility, filed three formal EEO complaints, alleging that the
agency discriminated against her in violation of Title VII of the Civil
Rights Act of 1964 (Title VII), as amended, 42 U.S.C. � 2000e et seq.,
and Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act),
as amended, 29 U.S.C. � 791 et seq.
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 dated April
16, 2002, finding that complainant was subjected to discrimination and
harassment based on her disability and in reprisal for prior EEO activity.
As a remedy for the discrimination, the agency was ordered to offer
complainant a position similar to her former position at a facility other
than the Regional Office in the Denver Metropolitan Region, and if either
party has a question regarding complainant's ability to work, complainant
shall undergo, by a neutral party, a Fitness for Duty Examination that
will determine whether she can work with the agency. The agency was
also ordered to expunge any reference to complainant's termination from
agency records, pay complainant back pay, pay non-pecuniary compensatory
damages in the amount of $125,000.00, pay attorney's fees and costs in
the amount of $91,150.25, and pay complainant pecuniary damages in an
amount to be documented by complainant. The order also stated that in
the event that complainant undergoes a Fitness for Duty Examination and
it is determined that complainant is not able to return to work, she
shall be awarded front pay, calculated from the date she was determined
to be unemployable through July 16, 2004. Finally, the order stated
that if complainant was found fit for duty, no front pay would be awarded.
On May 22, 2002, the agency issued a final order implementing the AJ's
decision in its entirety. Subsequently on September 10, 2002, complainant
underwent a Fitness for Duty Examination, and it was determined that
she was unable to return to work. On September 30, 2002, the agency
declined to award complainant front pay on the basis that since she
was unable to work, it was contrary to law to award her front pay.
On October 30, 2002, complainant notified the agency's EEO Director that
it did not comply with its final order. The agency did not respond to
complainant's claim that it did not comply with its final order.
On appeal, complainant alleges that the agency failed to comply with its
final action by rescinding the portion of its final order pertaining to
front pay. Complainant requests that the Commission order the agency
to comply with its final order dated May 22, 2002. Alternatively,
complainant requests that if the Commission finds that she is ineligible
for front pay, she be awarded damages for loss of earning capacity.
In response, the agency maintains that it does not seek to deny liability
on the merits of complainant's complaint, but simply seeks to conform
its remedial relief to applicable law and regulations on the matter of
front pay.
Front pay is an equitable remedy that compensates an individual
when reinstatement is not possible in certain limited circumstances.
The Commission has identified three circumstances where front pay may be
awarded in lieu of reinstatement: (1) where no position is available;
(2) where a subsequent working relationship between the parties would
be antagonistic; or (3) where the employer has a record of long-term
resistance to anti-discrimination efforts. See Cook v. United States
Postal Service, EEOC Appeal No. 01950027 (July 17, 1998). The fact
that front pay is awarded in lieu of reinstatement implies that the
complainant is able to work but cannot do so because of circumstances
external to the complainant. Id.
By contrast, lost earning capacity represents a loss in one's future
earning power and is distinct from the issue of front pay. That is,
an award for the loss of future earning capacity considers the effect
that complainant's injury will have on her ability in the future to earn
a salary comparable with what she earned before the injury. Carpenter
v. Department of Agriculture, EEOC Appeal No. 01945652 (July 17, 1995).
An award of damages for lost earning capacity comports with the goal
of providing make-whole relief to the victims of discrimination. The
Commission previously has awarded future pecuniary damages for the loss of
future earning capacity. See Brinkley v. United States Postal Service,
EEOC Request No. 05980429 (August 12, 1999). Proof of entitlement to
loss of future earning capacity involves evidence suggesting that the
individual's injuries have narrowed the range of economic opportunities
available to her. Carpenter, supra.
In this matter, after complainant underwent a Fitness for Duty Examination
conducted by a neutral physician on September 12, 2002, it was determined
that complainant was unable to return to work. Complainant has
failed to submit any evidence countering the results of the Fitness
for Duty Examination and the conclusion that she was unable to work.
The AJ ordered that if complainant, after undergoing a Fitness for Duty
Examination, is determined to be unable to work, the agency must pay
complainant front pay. However, an employee cannot receive front pay
if she is unable to work. Consequently, under these circumstances, we
find that complainant is not entitled to receive front pay. However,
we note that complainant may be entitled to future pecuniary damages for
the loss of her future earning capacity if she can demonstrate that the
discrimination resulted in an injury that impacts her future ability to
earn a salary comparable with what she earned before the discrimination.
The AJ's order, implemented by the agency's final order, granted
complainant pecuniary damages in an amount that complainant can document.
Therefore, we find that complainant should be given the opportunity to
demonstrate her possible entitlement to damages for the loss of future
earning capacity.
Accordingly, the Commission directs the agency to take remedial action
in accordance with this decision and the Order below.
ORDER
To the extent that it has not already done so, the agency is ordered to
take the following remedial actions:
1. The agency shall determine the appropriate amount of back pay
(with interest, if applicable) due complainant from the date of
termination to the date she was determined unable to work, and other
benefits, including retirement benefits, due complainant, pursuant to
29 C.F.R. 1614.501, no later than sixty (60) calendar days after the
date this decision becomes final. The complainant shall cooperate in the
agency's efforts to compute the amount of back pay and benefits due, and
shall provide all relevant information requested by the agency. If there
is a dispute regarding the exact amount of back pay and/or benefits,
the agency shall issue a check to the complainant for the undisputed
amount within sixty (60) calendar days of the date the agency determines
the amount it believes to be due. The complainant may petition for
enforcement or clarification of the amount in dispute. The petition for
clarification or enforcement must be filed with the Compliance Officer,
at the address referenced in the statement entitled "Implementation of
the Commission's Decision.
Within thirty (30) calendar days of the date this decision becomes
final, the agency shall pay complainant the amount of $91,150.25 for
attorney's fees incurred in representation for complainant's complaint
through April 11, 2002. Attorney's fees incurred in enforcing the
agency's final order and appeal of the matter to the Commission shall
be evaluated and awarded in accordance with the order below.
Within thirty (30) calendar days of the date this decision becomes final,
the agency shall pay complainant nonpecuniary compensatory damages in
the amount of $125,000.00.
The agency shall conduct a supplemental investigation pertaining
to complainant's entitlement to pecuniary damages incurred as a
result of the agency's discriminatory actions in this matter. The
agency shall afford complainant sixty (60) days to submit additional
evidence in support of her claim for pecuniary damages, including
lost future earning capacity. Within thirty (30) days of its receipt
of complainant's evidence, the agency shall issue a final decision
determining complainant's entitlement to pecuniary damages, together
with appropriate appeal rights.
5 Within thirty (30) calendar days of the date this decision becomes
final, the agency shall pursue corrective action including, but
not limited to, providing EEO training to the management officials
responsible for discriminating against complainant.
The agency shall consider taking appropriate disciplinary action
against the responsible management officials. 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 any of the responsible
management officials have left the agency's employ, the agency shall
furnish documentation of their departure date(s).
POSTING ORDER (G0900)
The agency is ordered to post at its Denver, Colorado 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
If complainant has been represented by an attorney (as defined by 29
C.F.R.� 1614.501(e)(1)(iii)), she is entitled to an award of reasonable
attorney's fees incurred in enforcing the agency's final order and
appeal of the matter to the Commission. 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
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 (R0900)
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 (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
_August 5, 2003_________________
Date
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
An Agency of the United States Government
This Notice is posted pursuant to an order by the United States Equal
Employment Opportunity Commission dated ___________ which found that
a violation of the Section 501 of the Rehabilitation Act of 1973
(Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq. has occurred
at the agency's Denver, Colorado facility (hereinafter this facility).
Federal law requires that there be no discrimination against any employee
or applicant for employment because of the person's RACE, COLOR, RELIGION,
SEX, NATIONAL ORIGIN, AGE, or DISABILITY with respect to hiring, firing,
promotion, compensation, or other terms, conditions or privileges of
employment.
This facility was found to have retaliated and discriminated against an
employee when it failed to accommodate her disability, subjected her to
a hostile work environment on the basis of disability, and terminated
her on the bases of reprisal and disability. Although the employee
was determined to be unable to return to work, the agency was ordered
to award the employee back pay, attorney's fees, compensatory damages,
and review its practices and policies and take whatever steps necessary
to prevent the recurrence of discriminatory treatment. This facility
will ensure that officials responsible for personnel decisions and
terms and conditions of employment will abide by the requirements of
all federal equal employment opportunity laws and will not retaliate
against employees who file EEO complaints.
This facility will comply with federal law and will not in any manner
restrain, interfere, coerce, or retaliate against any individual who
exercises his or her right to oppose practices made unlawful by, or
who participates in proceedings pursuant to, federal equal employment
opportunity law.
Date Posted: _____________________
Posting Expires: _________________
29 C.F.R. Part 1614