0520170099
03-07-2017
Heidi B.,1 Complainant, v. Thomas E. Price, M.D., Secretary, Department of Health and Human Services, Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Heidi B.,1
Complainant,
v.
Thomas E. Price, M.D.,
Secretary,
Department of Health and Human Services,
Agency.
Request No. 0520170099
Appeal No. 0120152308
Agency No. HHS-OS-0051-2014
DECISION ON REQUEST FOR RECONSIDERATION
Complainant timely requested reconsideration of the decision in EEOC Appeal No. 0120152308 (June 3, 2016). EEOC Regulations provide that the Commission may, in its discretion, grant a request to reconsider any previous Commission decision where the requesting party demonstrates 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. See 29 C.F.R. � 1614.405(c).
BACKGROUND
At the time of events giving rise to the portion of Complainant's complaint relevant to her request for reconsideration, Complainant worked as a Human Resources Specialist, GS-12 at the Office of Secretary (OS), Assistant Secretary for Administration (ASA), Office of Human Resources (OHR), National Capital Region (NCR), Cleveland, Ohio.
In her complaint Complainant alleged, in relevant part, that she was discriminated based on her sex (female) when she was paid less than her male coworker for substantially equal work under equal working conditions.
Following an investigation the Agency issued a final Agency decision (FAD) finding no discrimination. Complainant filed an appeal.
In EEOC Appeal No. 0120152308 we found, in relevant part, that that the Agency discriminated against Complainant based on her sex when it did not pay her at the GS-13 level in violation of the Equal Pay Act (EPA) of 1963, as amended, 29 U.S.C. � 206(d) et seq. and Title VII of the Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. � 2000e et seq. We ordered the Agency, in part, to pay Complainant back pay, with interest and other appropriate benefits from July 15, 2013, to the date her classification duties were removed in August 2014.2
In EEOC Appeal No. 0120152308, we found that Complainant did not request compensatory damages, and hence did not address them as an element of relief. We found that while Complainant requested punitive damages, they are not available to federal employees.
On request, Complainant argues that she made verbal and written requests and allegations that should have been interpreted as a request for compensatory damages. The Agency responds that our prior decision did not make a clearly erroneous interpretation of material fact or law in finding that Complainant did not request compensatory damages.
ANALYSIS AND FINDINGS
In her report the EEO counselor wrote, in relevant part, that the remedies Complainant requested were "back pay and liquidated damages, attorney's fees, and any other damages she may be entitled to under the law." In her complaint and investigative affidavit, Complainant wrote, in relevant part that "I would like to reserve a right to request any additional remedies that I might be entitled under the law (back pay, punitive damages, etc.)."
On request Complainant represents, referring to her desired relief recounted in the counselor's report, that she tried to ensure that it encompassed all available relief by requesting back pay, liquidated damages, and any other damages, and the purpose of the referenced language in her affidavit was to reserve the right to be awarded damages that she may not be aware of and was entitled too. Complainant writes that she asked the EEO counselor and EEO investigator about the way she expressed her claims for relief and they responded her request for relief covered all possible damages, including compensatory damages.
Complainant contends that she described her emotional pain and health damage caused by the discrimination to the EEO counselor and investigator, and writes she explained to the latter that this included humiliation, depression, inability to concentrate, stress and anxiety and nearly losing her unborn child because of this, and inability to enjoy time with her family. None of this appears in the counselor's report or Complainant's record writings prior to her request for reconsideration. Complainant explains that when she raised these matters to the EEO counselor and investigator, and they told her to stick to the facts of the alleged discrimination and omit personal emotions.
A claim for compensatory damages need not take any particular form. Instead, a complainant may merely use words or phrases to put the agency on notice that she incurred a pecuniary or nonpecuniary loss. Roubachewsky v. Department of the Navy, EEOC Request No. 05960184 (Jan. 6, 1997). The following are examples where the Commission construed what a complainant wrote as a request for compensatory damages: requesting in his complaint "to be made whole,"3 requesting in his complaint that he wanted "compensation from unequal pay" and "compensation from all work related injuries"4 writing on appeal that she was attempting to "mitigate damages" to herself, family and her professional career,5 writing in her request for counseling that she was seeking an "appropriate monetary reward,"6 requesting in his complaint "$40 million dollars in damages,"7 writing in his complaint that he sustained "great stress and pain to his family and himself,"8 stating in his affidavit that his "coworker's harassment caused him anxiety,"9 writing in her complaint that "she suffered pain and mental anguish,"10 and asserting in his complaint that he was seeking $300,000 for "pain & suffering as punitive damages."11
Applying the above rule, we find that our previous decision failed to consider that Complainant advising the EEO counselor that she wanted liquidated damages and "any other damages she may be entitled to under the law" constituted a request for compensatory damages. This is similar to the above cases where complainants requested "to be made whole" and an "appropriate monetary award." Likewise, while Complainant's terminology in her complaint and affidavit that she "reserve[d] a right" "to request any additional remedies that I might be entitled under the law (back pay, punitive damages, etc.)" is a bit confusing, her explanation on request that she used the word "reserve" to preserve her right to be awarded any damages to which she was entitled is completely consistent with the language in the sentence.
As we have found based on the above that Complainant requested compensatory damages, we need not determine if she described her pain and suffering to the EEO counselor and investigator and that they suppressed and otherwise discouraged her from further expressing this at that point in her case, and/or assured Complainant that the way she framed her request for relief covered all possible damages, including compensatory damages.
There is insufficient information in the record to calculate compensatory damages. We will address this in the order below.
After reconsidering the previous decision and the entire record, the Commission finds that Complainant's request meets the criteria of 29 C.F.R. � 1614.405(c), and it is the decision of the Commission to grant the request. The decision of the Commission in Appeal No. 0120152308 is MODIFIED. There is no further right of administrative appeal on the decision of the Commission on a Request to Reconsider.
ORDER
1. The issue of compensatory damages is REMANDED to the Agency. On remand, the Agency shall conduct a supplemental investigation on compensatory damages, and provide Complainant an opportunity to submit evidence of pecuniary and non-pecuniary damages regarding incidents. For guidance on what evidence is necessary to prove pecuniary and non-pecuniary damages, the parties are directed to EEOC Enforcement Guidance: Compensatory and Punitive Damages Available Under � 102 of the Civil Rights Act of 1991 (July 14, 1992) (available at eeoc.gov.) The Agency shall complete the investigation and issue a FAD appealable the EEOC determining the appropriate amount of damages within 150 calendar days after the date of this decision.
To the extent it has not already done so:
2. The Agency is ordered to process Complainant's claim that she was denied the reasonable accommodation of a lactation room in accordance with 29 C.F.R. �1614.108. The Agency shall acknowledge to the Complainant that it has received the remanded claim within thirty (30) calendar days of the date this decision becomes final. The Agency shall issue to Complainant a copy of the investigative file and also shall notify Complainant of the appropriate rights within one hundred fifty (150) calendar days of the date this decision becomes final, unless the matter is otherwise resolved prior to that time. If the Complainant requests a final decision without a hearing, the Agency shall issue a final decision within sixty (60) days of receipt of Complainant's request. A copy of the Agency's letter of acknowledgment to Complainant and a copy of the notice that transmits the investigative file and notice of rights must be sent to the Compliance Officer as referenced herein.
3. Within 60 days of the date this decision becomes final, the Agency shall pay Complainant back pay, with interest, for the difference between Complainant's salary and that of the Comparative retroactive to July 15, 2013 (which is one year after her promotion to a GS-12), and other appropriate benefits that Complainant would have been entitled to but for the discrimination. The back pay shall be calculated from July 15, 2013, until the date Complainant's classifications duties were removed in August 2014. The Agency is further directed to pay Complainant an additional amount of liquidated damages (equal to the back pay award) for its violation of the EPA.
4. Within 180 days of the date this decision becomes final, the Agency shall provide training to the Agency officials responsible for the alleged discrimination with regard to the prohibitions against sex discrimination under the Equal Pay Act.
5. Within 60 days of the date this decision becomes final, the Agency shall consider taking disciplinary action against the Agency officials responsible for discriminating against Complainant. The Agency shall report its decision to the Commission and specify what, if any, action was taken. If the Agency decides not to take disciplinary action, then 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 herein entitled "Implementation of the Commission's Decision." The report shall include supporting documentation verifying that the corrective action has been implemented.
Regarding the below posting order, to the extent it has not already done so:
POSTING ORDER (G0914)
The Agency is ordered to post at its National Capital Region (NCR) facility in Cleveland, Ohio, copies of the attached notice. Copies of the notice, after being signed by the Agency's duly authorized representative, shall be posted both in hard copy and electronic format by the Agency within 30 calendar days of the date this decision becomes final, and shall remain posted for 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 10 calendar days of the expiration of the posting period.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0610)
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.
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (P0610)
This decision of the Commission is final, and there is no further right of administrative appeal from the Commission's decision. 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.
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
March 7, 2017
__________________
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 We affirmed the Agency's finding of no discrimination on the remainder of the complaint the Agency accepted for investigation. We also found that the Agency failed to investigate, and address in its FAD, Complainant's complaint allegation that the Agency did not provide her reasonable breast feeding accommodations, and observed this implicated the Pregnancy Discrimination Act (PDA), 42 U.S.C. � 2000e(k) of 1978. We ordered that the Agency investigate and process this claim.
3 Jenkins v. United States Postal Service, EEOC Appeal No. 01A52992 (July 7, 2005).
4 Rowe v. General Services Administration, EEOC Appeal No. 01A03039 (July 20, 2000).
5 Roubachewsky.
6 Price v. United States Postal Service, EEOC Request No. 05950480 (Oct. 11, 1996).
7 Philips, Jr. v. Department of the Army, EEOC Appeal No. 01986868 (Jan. 11, 2000).
8 Reid v. United States Postal Service, EEOC Appeal No. 01992856 (Aug. 25, 2000).
9 Schiffer v. Department of the Army, EEOC Appeal No. 01950172 (May 24, 1995).
10 Johnson v. Federal Deposit Insurance Corporation, EEOC Appeal No. 01990653 (Jan. 5, 2001).
11 Sharpe v. United States Postal Service, EEOC Appeal No. 01951769 (Nov. 27, 1995)(damages for pain and suffering is compensatory damages. Complainant misclassified them as pecuniary damages).
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