EEOC Appeal No. 0120160345
01-31-2018
Greg M. v. Dep't of Veterans Affairs
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Greg M,1
Complainant,
v.
Dr. David J. Shulkin,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 0120160345
Agency No. 2003-0331-2013101109
DECISION
On October 29, 2015, Complainant filed an appeal with the Equal Employment Opportunity Commission (EEOC or Commission), pursuant to 29 C.F.R. � 1614.403(a), from the Agency's October 1, 2015 final decision concerning his equal employment opportunity (EEO) complaint alleging 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. For the following reasons, the Commission modifies the Agency's final decision.
BACKGROUND
Introduction
At the time of events giving rise to this complaint, Complainant worked as a Veterans Claims Examiner at an Agency facility in St. Louis, Missouri. He began his position with the Agency in April 2010. On February 28, 2014, Complainant filed an EEO complaint alleging that the Agency discriminated against him on the bases of race (Caucasian), sex (male), disability (Tinnitus, Post Traumatic Stress Disorder (PTSD), 80% disabled veteran status), age (59), and reprisal for prior protected EEO activity when coworkers subjected him to hostile work environment harassment, management failed to provide reasonable accommodation (a quieter work area), and management issued Complainant a fully successful performance rating and a reprimand. The Agency investigated Complainant's complaint.
Post-Investigation
Following the EEO investigation, the Agency provided Complainant with a copy of the report of investigation and notice of his right to request a hearing before an EEOC Administrative Judge or an immediate final agency decision. In accordance with Complainant's request, the Agency issued a final decision pursuant to 29 C.F.R. � 1614.110(b).
In its initial final decision, dated April 15, 2015, the Agency found that it discriminated against Complainant based on disability when it failed to provide him reasonable accommodation. The Agency stated that it failed to demonstrate that it made a good faith effort to provide reasonable accommodation. Conversely, the Agency found that Complainant failed to show that it subjected him to harassment or disparate treatment. The Agency awarded remedial relief and conducted a supplemental investigation on the issue of compensatory damages.
Supplemental Investigation on Compensatory Damages
During the supplemental investigation, Complainant stated that starting April 2012, he asked the Agency to relocate his work station to a quieter area, indicating that frequent sudden noises, continuous background noise, and constant interruptions exacerbated his service-connected Tinnitus and PTSD. (Complainant alleged that his coworkers made singing, clapping, and whistling noises consistently). Complainant made the request numerous (26) times over a two-year period. Complainant stated that there would be so much noise in his work environment that his ears would ring terribly, which caused him stomach pain and nausea. He also stated that the noise would be so loud that it effected his PTSD and prompted anxiety attacks at his desk. He stated that the anxiety attacks were like a heart attack. He stated, daily, he would sweat, have heart palpitations, close his eyes, shake, and have difficulty breathing. Complainant stated that sometimes the noise would get so bad that he would have to go sit in the foyer and wait for it to subside. Complainant stated, "I didn't want to go to work . . . [and I] called off work a lot."
Complainant stated that his noisy work environment affected his home life, including his relationship with his wife. He added that he does not like being around people. Complainant stated that, in 2012 or 2013, a psychiatrist told him that he should retire from the Agency. Complainant stated that he had Tinnitus and PTSD prior to working at the Agency, but they were not problematic and were regulated. Complainant stated that he enjoyed his job and family life previously. Complainant stated that he did not seek medical treatment for the impairments prior to the environment at the Agency, but sought psychiatric treatment about fifteen times after Agency employment.
Complainant stated that he had a Traumatic Brain Injury (TBI) on March 15, 2014 when he fell off a ladder at home and hit his head. Specifically, Complainant stated that the ear-ringing and anxiety became so bad he thought he heard someone yelling at him while he was on the ladder and he lost his balance and fell. He stated that he is angry and "pissed off" all the time, is home bound, is "hypervigilant", has no friends, and needs someone with him all the time to complete simple tasks. Complainant stated that he and his wife "cohabitate in the same house but that is about as far as it goes." He stated they are distant, sleep in separate rooms, do not show each other love or emotion, and do not communicate. Complainant stated that he does not communicate with his children. Complainant stated that he sleeps about three to four hours per night and he wakes up fighting and swinging due to nightmares. Complainant stated that his home life "sucks." Complainant stated that his brain does not function the same way that it did. Complainant stated, until about mid-2012, he was functioning without problems at both home and work.
Complainant stated, from April 2012 to February 2014, he experienced severe anxiety, depression, panic attacks, anger issues, insomnia, and trouble concentrating and focusing. Complainant stated that he was "helpless" and in "severe distress," and had thoughts of killing himself. Complainant stated that he gained 100 pounds due to stress at work and depression. Complainant stated that he takes three medications for his psychological conditions and that he suffered daily for two years and continues to suffer. Complainant retired from Agency employment effective April 30, 2014.
Complainant's wife (CW) stated that she and her husband had a normal and enjoyable life prior to his difficulties at work. She stated that her husband regulated his medical conditions with medication and therapy. CW stated that Complainant enjoyed his job until 2012, when he began complaining that the noise level in his workplace was very high. CW stated that her husband told her the noise level effected his Tinnitus and PTSD. CW stated that, in mid-2012, Complainant could not sleep or focus, was constantly nervous, suffered panic attacks, and could not breathe such that he thought he was dying. CW stated that Complainant began taking off work. CW stated that her husband became very quiet and only talked about his difficulties at work and how he did not think he could go on. CW stated that Complainant spoke about suicide frequently and gained 100 pounds. CW stated that it was as if Complainant was "emotionally drowning" and no one could help him. She stated that her husband was stressed daily.
CW stated that she and Complainant had a primarily good marriage until mid-2012, but now their relationship is forever changed. CW stated that their relationship was "strained" and her husband would sometimes blow up in a rage. CW stated that her husband's behavior was not like him. She stated, "I have been married to him for 27 years and have never seen him experience this type of emotional turmoil." CW stated that her husband suffered right-sided craniotomy subdural hematoma with bone flap removal due to hearing voices yelling at him and falling off a ladder. She stated that his Tinnitus and PTSD were exacerbated by the conditions at work.
Complainant's coworker (CC) stated that he believes that management and colleagues were aware of the negative effects that whistling and singing had on Complainant's medical conditions. He stated that, in mid-2012, Complainant went through a negative personality change. CC stated that prior to that time, Complainant was "a very easy going gentleman and was well liked and got along well with others." CC stated that Complainant would get angry and frustrated and walk away from his work station. CC stated that Complainant's frustration grew from occasional to daily and that his physical appearance changed, including dramatic weight gain.
In a neurobehavioral/neuropsychological report, dated May 21, 2014, a Neuropsychologist (NP) stated the following:
Emotionally, [Complainant] endorsed several levels of depression and anxiety presently including passive suicidal ideation without a plan or intent to harm himself. He has a history of PTSD which has been exacerbated since the traumatic brain injury.2
In a letter dated September 2, 2014, a Neuro-Radiologist (NR) stated that Complainant stopped working the day of his fall (March 15, 2014) and is unable to maintain employment. NR stated the following:
The service connected PTSD more likely than not caused his TBI as he has poor concentration and balance problems associated with his PTSD. His TBI has aggravated his PTSD. [Patient] IS UNEMPLOYABLE.
Post Supplemental Investigation
In a decision dated October 1, 2015, the Agency awarded Complainant $5,000 in non-pecuniary, compensatory damages. The Agency found that some of his damages were "proximately caused" by the Agency's actions, while some were due to other causes such as pre-existing conditions. Further, the Agency found that Complainant failed to show an entitlement to pecuniary damages3 or a connection between the Agency's actions and his fall from a ladder at home that prompted his disability retirement. Also, the Agency found that damages based on the allegation of coworker harassment and disparate treatment were inappropriate.
The instant appeal from Complainant followed. Complainant seeks $300,000 in nonpecuniary, compensatory damages and reasonable attorney's fees.
ANALYSIS AND FINDINGS
The Commission notes that damage awards for emotional harm are difficult to determine and there are no definitive rules governing the amount to be awarded in given cases. In this regard, the Commission finds that a proper award must meet two goals: not be "monstrously excessive" standing alone and be consistent with awards made in similar cases. See Cygnar v. City of Chicago, 865 F.2d 827, 848 (7th Cir. 1989). Section 102(a) of the 1991 Civil Rights Act authorizes an award of compensatory damages for all 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. To receive an award of compensatory damages, Complainant must demonstrate that he 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. Dep't of the Navy, EEOC Appeal No. 01934157 (July 22, 1994), request for reconsideration denied, EEOC Request No. 05940927 (December 8, 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 (July 14, 1992) ("Guidance").
Statements from others, including family members, friends, and health care providers can 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. Dep't of Agriculture, EEOC Appeal No. 01945652 (July 17, 1995).
In determining nonpecuniary, compensatory damages, the Commission strives to make damage awards for emotional harm consistent with awards in similar cases. In this case, Complainant asserted that due to the discrimination, he suffered stress and emotional harm daily for two years in the workplace and after his retirement. Complainant stated that the discrimination caused his sleep to be disrupted with nightmares, made him not want to go to work, made him "pissed off," caused him to gain 100 pounds, caused stomach pain and panic attacks, and made him feel hopeless and suicidal. Complainant also stated the discrimination made him withdraw from his wife of 27 years, his children, and other people. Complainant stated that his home life "sucks" now. Complainant's wife provided a statement corroborating Complainant's contentions. A former coworker corroborated the negative change in Complainant's demeanor since 2012 and his dramatic weight gain. Complainant provided reports, dated after his retirement, from neurological professionals stating that his PTSD contributed to his fall and resulting traumatic brain injury.
After considering the awards in similar cases and the relevant factors discussed above, we find the Agency's $5,000 award insufficient to remedy the harm that its actions caused Complainant. We find $50,000 a reasonable award of nonpecuniary, compensatory damages to Complainant for the proven emotional and psychological distress he suffered as a direct result of the Agency's discriminatory conduct (denial of reasonable accommodation). See Complainant v. Dep't of Justice, EEOC Appeal No. 0120123467 (April 3, 2015) (Commission awarded $50,000.00 in nonpecuniary, compensatory damages where Agency failed to provide Complainant reasonable accommodation and denied within grade increase, which resulted in extreme stress, depression, anxiety, insomnia, weight fluctuation, nightmares, panic attacks, suicidal ideations, and withdrawal from family and friends); Sartini v. Dep't of Veterans Affairs, EEOC Appeal No. 0120112305 (September 19, 2012) (Commission awarded $50,000.00 in nonpecuniary, compensatory damages where Agency failed to provide Complainant with a reasonable accommodation which resulted in the aggravation of a pre-existing back injury and severe aggravation and exacerbation of Complainant's relatively "stable" mental condition in the form of extreme emotional distress, depression, substantial weight gain, anxiety, paranoia, marital trouble, humiliation, and embarrassment); Williams v. U.S. Postal Service, EEOC Appeal No. 01990520 (February 14, 2002) (Commission awarded $50,000.00 in nonpecuniary, compensatory damages to a complainant who was denied a reasonable accommodation for his disability and who experienced an exacerbation of a pre-existing condition, depression, and had homicidal and suicidal thoughts); Ortiz v. U.S. Postal Service, EEOC Appeal No. 01A15376 (September 25, 2002), request for reconsideration denied, EEOC Request No. 0520030082 (January 7, 2003) (Commission awarded $50,000.00 in nonpecuniary, compensatory damages to a complainant, who was denied an accommodation for his disability over a four-year period and who experienced emotional distress, sleeplessness, insomnia, depression, and ulcers). We cannot find a direct correlation between the Agency's discriminatory actions and Complainant's traumatic brain injury from a fall at home.
While the agency is not responsible for complainant's pre-existing conditions of Tinnitus and PTSD, it is responsible for the actions it took which aggravated those conditions. The amount awarded discounts damages incurred due to events other than those found to be discriminatory. Also, we find this award is not motivated by passion or prejudice, not "monstrously excessive" standing alone, and is consistent with the amounts awarded in similar cases. Further, we find attorney's fees for the instant appeal are in order.
CONCLUSION
Based on the above, we MODIFY the Agency's final order and award $50,000 in nonpecuniary, compensatory damages. The Agency is directed to implement the following corrective action in accordance with the ORDER herein.
ORDER
Within sixty (60) calendar days of the date on which this decision becomes final, the Agency shall tender to Complainant nonpecuniary damages in the amount of $50,000, less any previous amounts of nonpecuniary damages previously paid to Complainant.
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.
ATTORNEY'S FEES (H1016)
If Complainant has been represented by an attorney (as defined by 29 C.F.R. � 1614.501(e)(1)(iii)), he 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 the date this decision was issued. 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 (K0617)
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 in the digital format required by the Commission, and submitted via the Federal Sector EEO Portal (FedSEP). See 29 C.F.R. � 1614.403(g). 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 (M0617)
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. A party shall have twenty (20) calendar days of receipt of another party's timely request for reconsideration in which to submit a brief or statement in opposition. See 29 C.F.R. � 1614.405; Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at Chap. 9 � VII.B (Aug. 5, 2015). All requests and arguments must be submitted to the Director, Office of Federal Operations, Equal Employment Opportunity Commission. Complainant's request may be submitted via regular mail to P.O. Box 77960, Washington, DC 20013, or by certified mail to 131 M Street, NE, Washington, DC 20507. 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 agency's request must be submitted in digital format via the EEOC's Federal Sector EEO Portal (FedSEP). See 29 C.F.R. � 1614.403(g). 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 (T0610)
This decision affirms the Agency's final decision/action in part, but it also requires the Agency to continue its administrative processing of a portion of your complaint. 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 on both that portion of your complaint which the Commission has affirmed and that portion of the complaint which has been remanded for continued administrative processing. 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 your appeal with the Commission, until such time as the Agency issues its final decision on your complaint. 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 (Z0815)
If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may request permission from the court to proceed with the civil action without paying these fees or costs. Similarly, if you cannot afford an attorney to represent you in the civil action, you may request the court to appoint an attorney for you. You must submit the requests for waiver of court costs or appointment of an attorney directly to the court, not the Commission. The court has the sole discretion to grant or deny these types of requests. Such requests do not alter the time limits for filing a civil action (please read the paragraph titled Complainant's Right to File a Civil Action for the specific time limits).
FOR THE COMMISSION:
______________________________ Carlton M. Hadden's signature
Carlton M. Hadden, Director
Office of Federal Operations
January 31, 2018
__________________
Date
1 This case has been randomly assigned a pseudonym which will replace Complainant's name when the decision is published to non-parties and the Commission's website.
2 Pertinently, NP noted, prior to Complainant's March 2014 fall, he drank two to four drinks nightly.
3 Complainant stated that he had to file for bankruptcy because his medical expenses were "astronomical." Complainant stated that he incurred medical expenses traveling to and from the doctor due to the hostile work environment, and that he would submit documentation to the investigator for the supplemental investigation. Complainant also stated that he had a $15,000 helicopter bill because he was medevacked to a trauma unit. Complainant stated that he used at least 100 hours of annual and sick leave. The record does not contain documentation to support said contentions.
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