0720100011
10-14-2015
Kathy D.,1 Complainant, v. Jeh Johnson, Secretary, Department of Homeland Security (Transportation Security Administration), Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Kathy D.,1
Complainant,
v.
Jeh Johnson,
Secretary,
Department of Homeland Security
(Transportation Security Administration),
Agency.
Appeal No. 0720100011
Hearing No. 470-2008-00126X
Agency No. HS-07-TSA-001117
DECISION
Simultaneously with its November 9, 2009 final order, the Agency filed a timely appeal which the Commission accepts pursuant to 29 C.F.R. � 1614.405(a). On appeal, the Agency requests that the Commission affirm its rejection of an EEOC Administrative Judge's (AJ) finding of discrimination in violation of Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq. On November 30, 2009, Complainant filed a cross-appeal from the AJ's determination on compensatory damages.
ISSUES PRESENTED
The issues presented are (1) whether substantial evidence of record supports the AJ's finding that Complainant was discriminated against based on her disability (back condition) when, on November 30, 2006, and several times before, her requests for reasonable accommodation in the form of light duty were denied; and (2) if so, whether the AJ awarded Complainant the correct amount of non-pecuniary compensatory damages.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Transportation Security Officer (TSO) at the Agency's Detroit Metro Wayne County Airport facility in Romulus, Michigan.
Complainant filed an EEO complaint alleging the Agency unlawfully denied her requests for reasonable accommodation for her disability (back condition).2 Following the investigation into her complaint, Complainant requested a hearing before an EEOC Administrative Judge (AJ). After a bifurcated hearing on liability and damages, the AJ issued decisions finding discrimination and awarding various remedies. The Agency's final order rejected the AJ's finding that discrimination occurred.
Complainant started working for the Agency in October 2002 as a Transportation Security Screener, now known as a Transportation Security Officer (TSO). Her job was to screen baggage. This involved standing, lifting, pushing, pulling, and bending to load and unload bags on a conveyor belt, and inspecting baggage using Explosive Trace Devices (ETD), Explosives Detection Systems (EDS), and other equipment. Complainant stated that if the baggage caused the equipment to alarm, she would pick the baggage up and place it on a table, and open it for inspection and, when she was done, walk it back to the conveyor belt. In addition, when using certain equipment, she would sit for periods of time.
On April 2, 2006, Complainant injured her back while lifting bags to a conveyer belt from the exit side of a large detection machine. On April 5 and April 7, 2006, she went to the emergency room, received pain medication and muscle relaxers, and was advised to stay off work for one week without lifting. Complainant saw her internist on April 7 and April 11, 2006, complaining of back and neck pain, was diagnosed with acute lumbar and cervical strain, and was prescribed more pain medicine and physical therapy.
On or about April 8, 2006, Complainant submitted a Notice of Traumatic Injury and Claim for Continuation of Pay (COP)/Compensation to the U.S. Department of Labor, Office of Workers' Compensation Programs (OWCP). She received 45 days of COP, pending OWCP's determination on her claim. By letter dated April 28, 2006, OWCP did not approve the claim, citing insufficient medical documentation submitted.
On a return visit to her internist on April 28, 2006, Complainant complained of severe burning discomfort (radiculopathy) in both thighs. Her internist advised continued physical therapy for her back and staying off work. Complainant presented with the same symptoms on May 26, 2006. On June 20, 2006, the Agency received a brief note by Complainant's internist stating that Complainant could return to work on June 21, 2006, with restrictions of no lifting, bending, and stooping, and the option to sit and stand. Complainant testified that she asked Human Resources (HR) if she could do some office work. Hearing Transcript (HT), 142-143.3 However, on July 28, 2006, Complainant's internist wrote that Complainant could not work at all.
Complainant started seeing a physician specializing in rehabilitation in September 2006. By letter dated October 10, 2006, the rehabilitation physician wrote that Complainant had chronic low back pain which was severe and debilitating, and could not do any heavy work. He wrote that he was considering putting Complainant in a "work hardening" or functional recovery program. On November 21, 2006, the rehabilitation physician wrote that Complainant still could not work but estimated she could do so in January 2007. On January 3, 2007, the rehabilitation physician released Complainant to work on January 5, 2007, with a restriction of lifting no more than 30 pounds for two weeks, then 50 pounds for two weeks, then no restriction. The Agency did not return Complainant to work. On February 7, 2007, the rehabilitation physician released Complainant to work on February 21, 2007, with a 50-pound lifting restriction for one month. The Agency did not return Complainant to work.
After additional filings, OWCP approved Complainant's workers' compensation claim on June 25, 2007, with a date of injury of April 2, 2006. In apparent connection with this, on July 18, 2007, Complainant's rehabilitation physician completed an OWCP work-capacity evaluation form indicating that Complainant could return to work on July 20, 2007, with the following restrictions: lifting, pushing and pulling up to 30 pounds; kneeling and squatting 10 minutes per hour; walking and standing 20 minutes per hour; and breaks of 10 minutes per hour. He wrote that Complainant would start work with two weeks training, and that the restrictions applied for two to four weeks.4 Because the OWCP claim was approved, the Agency returned Complainant to work on July 21, 2007. On July 20, 2007, Complainant signed an offer to perform a subset of TSO duties, i.e., exit-lane monitor and ticket checker, neither of which required lifting. The parties stipulated that back pay liability ended on July 20, 2007, in light of Complainant's return to work date. Bench Decision, 8/17/09, 31-32.5
From June 2006, Complainant had directed her various requests to return to work on light duty to an HR Program Assistant, who was the Workers' Compensation Coordinator, and a HR Specialist, the Program Assistant's supervisor. According to Complainant, they told her she could not return unless she had no medical limitations or her claim was approved by OWCP. Complainant wrote that the Program Assistant advised she could return on January 17, 2007, if she could lift in excess of 50 pounds, but this was above her medical limitation.
Agency Operations Directive 400-30-6 defines light duty as a temporary adjustment or modification to the essential position requirements. Report of Investigation (ROI), Tab F(16). The HR Program Assistant and HR Specialist stated that at Detroit Metro, the Agency's policy was not to accommodate non-work related injuries with light duty, and that limited duty was only offered with work injuries approved by OWCP. The HR Specialist, who was responsible for taking applications for reasonable accommodation, testified that the Detroit Metro Federal Security Director made the policy decision not to provide light duty. HT, 216-217; 238; 247. She testified that when an employee with a non-work related injury requests light duty, she asks the individual to use their leave, and does not consider a request for light duty to be a request for reasonable accommodation. Id., 233-234.
The Agency has written standards for the TSO job. In relevant part, the standards include:
* Repeatedly lifting or assisting another individual in lifting from the ground and carrying an object weighing at least 70 pounds;
* Adequate joint mobility, dexterity and range of motion, strength, and stability to repeatedly lift and carry at least 70 pounds;
* Continuously standing anywhere between one to four hours without a break to carry out screening functions;
* Walking up to two miles during a shift; and
* Demonstrate daily a fitness for duty without impairment due to illegal drugs, sleep deprivation, medication, or alcohol.
Agency Prehearing Report Exhibits A-1. However, the HR Program Assistant testified that a lifting limitation of 50 pounds is considered not to be a restriction because the 70 pound standard means lifting with assistance. Id., 266-267.
AJ's Decision
The AJ found that Complainant was an individual with a disability because she had an impairment which substantially limited her ability to work, walk, bend, twist, and stand for a prolonged period. The AJ found that Complainant was diagnosed with lumbar and cervical strain, had radiculopathy, and her condition did not improve, which resulted in her walking with a cane.
The AJ found that Complainant's requests for light duty were requests for reasonable accommodation, that the Agency is required under the Rehabilitation Act to reasonably accommodate individuals with disabilities, and that, contrary to that statute, the Agency has a policy of not accommodating those who get injured outside of work6 who ask for light duty.
The AJ noted the management testimony that the physical standards for TSOs were established by the Agency pursuant to authority granted by the Aviation and Transportation Security Act (ATSA), 49 U.S.C.A. � 44935. The AJ recognized that in Getzlow v. Department of Homeland Security, EEOC Appeal No. 0120053286 (June 26, 2007), the Commission found that, under the ATSA, the Agency could establish qualification standards for TSOs that might not otherwise pass muster under the Rehabilitation Act. Specifically, the Agency does not have to prove the standard is "job-related and consistent with business necessity," as would otherwise be required under the Rehabilitation Act.
However, the AJ found that because the Agency did not conduct an interactive discussion with Complainant, it was not known if she could have performed the essential functions of her position with or without reasonable accommodation. The AJ concluded that the Agency discriminated against Complainant by not reasonably accommodating her due to its blanket policy of not providing light duty unless the employee with a disability had an approved OWCP claim. HT, 219-220.
The AJ found liability for failure to reasonably accommodate starting on October 18, 2006. He reasoned this was 45 calendar days prior to November 30, 2006. Bench Decision, August 17, 2009, 31. This is the date of the accepted claim on which discrimination was found. The AJ also found that Complainant was not entitled to back pay prior to this because her internist indicated she was unavailable for work, and there was no evidence that even if she had been available to work she had been denied reasonable accommodation during this period.
The AJ awarded Complainant $120 in pecuniary damages for medication she took. In evaluating non-pecuniary damages, the AJ recited Complainant's testimony that as a result of the Agency's misconduct, she suffered sleeplessness, sadness, depression, mood swings, took her frustration out on her family, and was prescribed Ativan and Celexa. The AJ recounted testimony of Complainant's husband that when Complainant got injured, was denied reasonable accommodation, and had negative interactions at work, she became moody, unhappy, argumentative, snappy, depressed, and the children would ask "What is wrong with Mom?" The husband added that it adversely impacted their sexual relationship. The AJ recounted Complainant's mother's testimony that her daughter got moody, cried a lot, and her eating got out of control. The AJ found that it was difficult to calculate non-pecuniary damages because there were many factors contributing to Complainant's emotional harm, i.e., denial of reasonable accommodation, a history of panic attacks beginning in 1988,7 and testimony by Complainant's husband and mother of her difficulties and stress because of her interaction with Agency employees, which included the denial of reasonable accommodation. The AJ suggested that Complainant did not show that the denial of reasonable accommodation caused injuries for which she sought treatment from mental health professionals in 2008 and 2009. In awarding $8,000 in non-pecuniary damages in his August 17, 2009, bench decision, the AJ found that a factor in Complainant's favor was an inference that she received medical attention from January 2007 to July 2007.
In a subsequent corrected decision, after a review of his bench decision, and apparently after another review of the record, the AJ found that Complainant was entitled to total non-pecuniary damages $4,500. The AJ added that some of Complainant's suffering was caused by her April 2006 injury. The AJ dropped the inference that Complainant was treated for emotional harm from January 2007 to July 2007, and found there was no credible evidence she sought this treatment until 2008.8
The AJ ordered back pay with benefits and interest, including seniority, restoration of leave used during the back pay period; removal of all negative references or information placed in Complainant's file as a result of the Agency's discrimination; a posting that discrimination occurred with a statement of commitment that corrective action will be taken; and sensitivity training for all officials involved in the discrimination, especially on the issue of disability discrimination and reasonable accommodation. The AJ ruled that the Agency could mitigate the payment of back pay with OWCP wage loss compensation awarded for the back pay period.
The Agency's final order rejected the AJ's finding of disability discrimination for failure to provide reasonably accommodation.
CONTENTIONS ON APPEAL
The Agency argues that Getzlow applies to qualification standards promulgated by the Agency under its ATSA authority for all TSOs, not just applicants for TSO positions. Pointing to a medical assessment form completed by Complainant's rehabilitation physician in September 2007, the Agency argues that it is undisputed Complainant could not perform the TSO job.9 It argues that, assuming Complainant was an individual with a disability, she was not qualified because she did not meet qualification standards promulgated pursuant to the ATSA, which it refers to as essential functions and duties of the TSO job. Specifically, the Agency contends that Complainant consistently has been under medical restrictions of (1) no lifting, pulling or pushing in excess of 30 pounds, (2) no squatting or kneeling for more than 10 minutes per hour; (3) 5-10 minutes breaks every hour, (4) no walking or standing for more than 20 minutes per hour; and (5) the option to sit and stand. In support of this, the Agency refers to medical documentation recounted above, and additional medical documentation from September and October 2007. The Agency closes by arguing that the AJ erroneously found that Complainant was discriminated against when she was denied a light-duty assignment on November 30, 2006. It reasons that she was not cleared to return to work by her physicians until January 5, 2007.
In opposition to the Agency's appeal, Complainant argues that she is a qualified individual with a disability because she could perform the essential functions of her position with or without reasonable accommodation. She argues her position could have been restructured. Citing a Commission regulation, Complainant argues that, in determining whether she is qualified, the position in question is not limited to the position she held, but also positions she could have held as a result of reassignment. She argues that accommodating her would not have conflicted with an ATSA mandated qualification standard.
Complainant distinguishes Getzlow, which in analyzing whether the complainant was qualified did not consider whether she could be reassigned. Complainant reasons that Getzlow was a hiring case, and while an applicant must be qualified for the position for which she is applying, reasonable accommodation for an existing employee includes reassignment. Complainant argues that the Agency essentially conceded that she was qualified by providing her the accommodation of a reassignment after her OWCP claim was accepted, and that this is the best evidence that she could perform the essential functions of the position with or without reasonable accommodation.
Complainant argues that the back pay period should start in July 2006, when she informed the Agency she was requesting light duty as a reasonable accommodation.10 She argues that the back pay period should not be cut off for not timely initiating EEO counseling because failure to reasonably accommodate is a continuing violation. She states that the reasonable accommodation did not start until July 2007, when she was returned to work.
Complainant contends that the AJ's award of $4,500 in non-pecuniary damages was inadequate. She argues that the emotional harm continued after the Agency reasonably accommodated her in July 2007.
STANDARD OF REVIEW
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.
An AJ's credibility determination based on the demeanor of a witness or on the tone of voice of a witness will be accepted unless documents or other objective evidence so contradicts the testimony or the testimony so lacks in credibility that a reasonable fact finder would not credit it. See EEOC Management Directive for 29 C.F.R. Part 1614 (MD-110), Chap. 9, at � VI.B. (Aug. 5, 2015).
ANALYSIS AND FINDINGS
Liability
Under the Commission's regulations, an agency is required to make reasonable accommodation of the known physical and mental limitations of a qualified individual with a disability unless the agency can show that accommodation would cause an undue hardship. 29 C.F.R. �� 1630.2(o), 1630.2(p). In order to determine whether Complainant is entitled to a reasonable accommodation, we must first analyze whether she is a "qualified individual with a disability" within the meaning of the Rehabilitation Act. An "individual with a disability" is one who: (1) has a physical or mental impairment that substantially limits one or more major life activities; (2) has a record of such impairment; or (3) is regarded as having such impairment. Major life activities include, but are not limited to, caring for oneself, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, and working. Sitting, standing, lifting, bending, stooping, and reaching are also recognized as major life activities. Interpretive Guidance on Title I of the Americans With Disabilities Act (ADA), Appendix to 29 C.F.R. 1630.2(i); see also Bowers v. Department of Defense (Defense Security Service), EEOC Appeal No. 0720070012 (March 22, 2010); Klein v. Department of Health and Human Services, Petition No. 03950055 (July 26, 1995).11
We agree with the AJ's finding that Complainant is an individual with a disability. She injured her back on April 2, 2006. Complainant was diagnosed with acute lumbar and cervical strain, and had radiculopathy which caused severe burning discomfort in both thighs. By June 2006, she had restrictions of no lifting, bending, and stooping, and needed to alternate sitting and standing. In September 2006, Complainant started seeing a rehabilitation physician, who wrote in October 2006 that she had chronic low back pain which was severe and debilitating, and in subsequent visits kept Complainant off work. On January 3, 2007, this physician released Complainant to return to work on January 5, 2007, with a lifting restriction of 30 pounds for two weeks, then 50 pounds for two weeks, then no restriction. On February 7, 2007, the rehabilitation physician released Complainant to return to work on February 21, 2007, with a 50-pound lifting restriction for one month. On July 18, 2007, just prior to returning to work, the rehabilitation physician limited Complainant to pushing and pulling up to 30 pounds; kneeling and squatting 10 minutes per hour; walking and standing 20 minutes per hour; and breaks of 10 minutes per hour. Complainant's condition continued to deteriorate, and by November 2007, she used a cane to steady herself when bending. The AJ's finding that Complainant's back impairment substantially limits her major life activity of bending, standing and walking is supported by substantial evidence.
As noted above, an agency is required to make reasonable accommodation to the known physical and mental limitations of a qualified individual with a disability unless the agency can show that accommodation would cause an undue hardship. A "qualified" individual with a disability is one who satisfies the requirements for the employment position she holds or desires and can perform the essential functions of that position with or without reasonable accommodation. 29 C.F.R. � 1630.2(m).
We find that the rule in Getzlow that, under the ATSA, the Agency can establish qualification standards for TSOs that might not otherwise pass muster under the Rehabilitation Act, i.e., the Agency does not have to prove the standard is "job-related and consistent with business necessity," as would otherwise be required under the Rehabilitation Act, also applies to employees. This is supported by Commission case law. See Estate of Roop v. Dep't of Homeland Security (Transp. Sec. Admin., EEOC Appeal No. 0720090056 (Oct. 21, 2010) (complainant barred from returning to work because he could not perform the duties of TSO at full-duty capacity;; citing, among other cases, Getzlow, Commission held that Congress gave Agency broad authority to establish terms and conditions of employment for security screeners).
In Getzlow, the Commission found that a complainant must show that she meets the ATSA- mandated standards and those promulgated by the Agency under its ATSA authority, in order to be qualified as a TSO under the Rehabilitation Act. We find that so long as Complainant had medical restrictions of no bending, lifting, and stooping, as well as a lifting restriction of 30 pounds, she was not qualified for the TSO position. These restrictions do not meet the TSO qualification standards of repeatedly lifting or assisting another individual in lifting from the ground and carrying an object weighing at least 70 pounds and adequate joint mobility, dexterity and range of motion, strength, and stability to repeatedly lift and carry at least 70 pounds. Because she was not qualified for the TSO position when she had these restrictions, which were of long duration, she was not entitled to the reasonable accommodation of job restructuring during those times.12
Complainant submitted medical documentation to the Agency that, as of January 19, 2007, her restriction was lifting 50 pounds for two weeks, and thereafter no restrictions. She submitted another doctor's note that as of February 21, 2007, her medical limitation was lifting 50 pounds for one month. The HR Program Assistant testified that a lifting limitation of 50 pounds is not considered to be a restriction because the 70-pound standard means lifting with assistance. However, despite an acceptable lifting restriction, the Agency did not approve Complainant's request to return to work in January 2007.
In light of the HR Program Assistant's testimony, and Complainant's documented restrictions ranging from a medical limitation of lifting no more than 50 pounds to having no restrictions from January 19, 2007 through July 17, 2007,13 the record establishes Complainant was qualified to perform the duties of TSO during this time period. The Agency does not provide an explanation for not returning Complainant to work during this period. Accordingly, we find that the AJ's determination that Complainant was discriminated against based on disability is supported by substantial evidence, for the period of January 19, 2007, through July 17, 2007. Outside the above period, Complainant was not qualified for the TSO position.
When determining whether an employee with a disability is "qualified," i.e., is able to perform the essential functions of the position in question with or without reasonable accommodation, the term "position in question" is not limited to the position actually held by the employee, but also positions that the employee could have held as a result of reassignment. 29 C.F.R. � 1630.2(o)(2)(ii). Reassignment to a position for which Complainant is qualified would not conflict with an ATSA qualification standard and is not contrary to Getzlow. See Mixon v. Dep't of Homeland Sec., EEOC Appeal No. 0120081259 (June 26, 2008). In Mixon, the complainant, a TSO, alleged that he was subjected to discrimination on the basis of disability when his request for light duty was denied. The Agency dismissed the complaint for failure to state a claim. The Commission reversed, citing Getzlow. It found, in relevant part, that it appeared the complainant was not challenging an ATSA-mandated standard, and that under the Rehabilitation Act, the Agency has a responsibility to provide employees reasonable accommodation, which may include reassignment to another position.
A complainant may use "plain English" and need not mention the Rehabilitation Act or use the phrase "reasonable accommodation" when requesting a reasonable accommodation. See EEOC Enforcement Guidance on Reasonable Accommodation and Undue Hardship under the Americans with Disabilities Act, EEOC Notice No. 915.002, Question 1 (as revised October 17, 2002). Applying this, we agree with the AJ's finding that Complainant's request for light duty was a request for reasonable accommodation.
In June 2006, Complainant asked HR if she could do some office work. The record does not reflect what tasks she asked to perform at other times. In Hampton v. United States Postal Service, EEOC Appeal No. 01986308 (July 31, 2002), the Commission clarified its position regarding the standard for assessing liability for reassignment. The Commission determined that the evidentiary burden is on the complainant to establish by a preponderance of the evidence that there were vacancies during the relevant time period into which she could have been reassigned. Clearly, the complainant can establish this by producing evidence of particular vacancies. However, this is not the only way of meeting the complainant's evidentiary burden. In the alternative, the complainant need only show that: (1) she was qualified to perform a job or jobs which existed at the agency, and (2) that there were trends or patterns of turnover in the relevant jobs so as to make a vacancy likely during the time period. Id. It can also be met by documentary or testimonial evidence regarding, among other things, (1) the complainant's qualifications; (2) the size of the agency's work force; and (3) indicia of postings and/or selections during the pertinent time period within classes of jobs for which complainant would have been qualified. Rowlette v. Social Security Administration, EEOC Appeal No. 01A10816 (Aug. 1, 2003).14
Complainant argued that there were light-duty tasks she could perform. For example, on appeal, she argues that she could perform, with or without reasonable accommodation, the position to which she was reassigned after her OWCP accepted her claim. This job was offered on a form entitled "Recovering Employee's Limited Duty Assignment (RELDA)" pursuant to Complainant's accepted OWCP claim. The offer modified the duties of the TSO to include only Exit Lane Monitor and Ticket Checker, tasks that required no lifting. Essential functions of the TSO job, such as screening passengers and luggage were removed. While the Agency was free to do this in connection with Complainant's OWCP claim, it is not required to create a job as a form of reasonable accommodation under the Rehabilitation Act. Castenda v. U.S. Postal Serv., EEOC Appeal No. 01951445 (Sept. 18, 1998).
Complainant testified that she could have worked in logistics, HR, or the training department, but conceded she was not aware of any vacant positions in Detroit where she could have worked. HT, 3/09, 95, 160. The record does not show such vacant positions. Therefore, Complainant has failed to meet her burden of proving that she was discriminatorily denied the reasonable accommodation of reassignment.
The AJ found, in essence, a per se violation of the Rehabilitation Act because the Agency did not engage in an interactive discussion with Complainant on her reasonable accommodation request and had a policy of not accommodating those injured off the job. An agency's failure to engage in the interactive process does not, by itself, demand a finding that a complainant was denied reasonable accommodation. Rather, to establish a denial of reasonable accommodation, a complainant must show that the failure to engage in the interactive process resulted in the agency's failure to provide a reasonable accommodation. Broussard v. U.S. Postal Serv., EEOC Appeal No. 01997106 (Sept. 13, 2002). Complainant did not do this.
In sum, we find that Complainant has established that she was discriminated against based on her disability only when she was not returned to work as a TSO from January 19, 2007, through July 17, 2007.
Remedies
Complainant testified that she feared the Agency was trying to terminate her at any cost, felt sad and depressed, and had sleepless nights, mood swings, and crying spells, and was prescribed Ativan and Celexa for depression, anxiety, and mood swings. She testified that she had suicidal ideations when she started feeling like she was being rejected by her job. Complainant's husband testified that Complainant went from being outgoing and proud of her job to depressed, argumentative, moody, snappy, and unhappy. He attributed this to Complainant getting injured in April 2006, and her interactions at work, including her interactions with HR. Complainant's mother stated she observed mood swings, crying, and Complainant's appetite get out of control. She testified Complainant complained about her working conditions after she returned to work. HT, 8/17/09, 125.
Compensatory damages may be awarded for past pecuniary losses, future pecuniary losses, and nonpecuniary losses that are directly or proximately caused by the agency's discriminatory conduct. Compensatory and Punitive Damages Available under Section 102 of the Civil Rights Act of 1991 (July 14, 1992) (available at www.eeoc.gov). As found by the AJ, Complainant has not shown that all her damages were caused by the Agency's refusal to return her to work from January 19through July 17, 2007. The record shows she sustained emotional harm as a result of her April 2006 injury, earlier refusals by the Agency to return her to work, and things that went on at work after she returned in July 2007. The AJ found it significant that Complainant did not seek counseling for emotional difficulties in January 2008, and this goes to causation.
The Commission finds that an award of $4,500 in non-pecuniary compensatory damages is appropriate to compensate Complainant for her emotional harm, and this award is supported by substantial evidence and is consistent with the Commission's awards in similar cases. See e.g., Reddish v. U.S. Postal Serv., EEOC Appeal No. 0720070068 (Apr. 28, 2009) ($4000 awarded for finding of reprisal resulting in embarrassment, humiliation, distress, headaches and elevated blood pressure); Spencer v. Dep't of the Treasury, EEOC Appeal No. 07A10035 (May 6, 2003) ($5,000 awarded for complainant's complaints of dejection, stress, and emotional pain); Brooks v. U.S. Postal Serv., EEOC Appeal No. 01996915 (Oct. 12, 2001) ($6,000 in non-pecuniary damages awarded for depression, anger, aggravation of high blood pressure, and adverse effects on family life).
On September 27, 2009, the parties settled the issue of attorney's fees and costs incurred up to that point. The Agency agreed to pay $20,000 in attorney fees and costs within 90 calendar days. A standardized order below explains to Complainant and her attorney how to apply for attorney fees and costs incurred after September 27, 2009.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we MODIFY the AJ's finding of discrimination, and order the relief set forth below.
ORDER
The Agency is ordered to take the following remedial actions:
Within 120 calendar days after this decision becomes final, the Agency shall:
1. To the extent it has not already done so, pay Complainant's attorney $20,000 for attorney fees and costs incurred through September 27, 2009, as agreed by the parties.
2. Issue a check to Complainant for $4,500 in non-pecuniary compensatory damages and $120 in pecuniary damages.
3. Determine the appropriate amount of back pay, with interest, and other benefits due Complainant, pursuant to 29 C.F.R. � 1614.501. This shall include restoration of lost seniority. The back pay period is January 19, 2007, through July 17, 2007. 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. The Agency may off-set OWCP wage loss compensation which covered the back pay period. 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."
4. Restore all leave used during the back pay period.
5. Remove all negative references or information placed in Complainant's personnel file related to her not coming to work from January 19, 2007, through July 17, 2007.
6. Provide a minimum of eight (8) hours in-person training to the HR Program Assistant, the HR Specialist, the HR Specialist's Supervisor, and the Detroit Metro Federal Security Director identified in this decision regarding the Agency's duty to reasonably accommodate a disability, including when light-duty requests are made.
7. Consider taking disciplinary action against the employees identified as being responsible for the failure to accommodate Complainant. The agency shall report its decision. 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 the identified employees are no longer employed by the Agency, the Agency shall furnish proof of the date of separation.
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 of the Agency's calculation of back pay and other benefits due Complainant, including evidence that the corrective action has been implemented.
POSTING ORDER (G0914)
The Agency is ordered to post at its Transportation Security Administration, Detroit Metro Wayne County Airport in Romulus, Michigan, 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.
ATTORNEY'S FEES (H0610) 15
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 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 (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.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0815)
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), 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, 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 (S0610)
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 (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:
______________________________ C
Carlton M. Hadden, Director
Office of Federal Operations
October 14, 2015
__________________
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 Complainant also alleged that she was discriminated against based on her disability when she was subjected to a hostile work environment, citing various incidents. The AJ found no discrimination on this claim, and also ruled that Complainant failed to timely initiate EEO counseling on some incidents. The Agency did not reject these findings, and Complainant does not appeal them. Accordingly, we exercise our discretion not to consider these matters. See EEOC Management Directive for 29 C.F.R. Part 1614 (MD-110), Chap. 9, at � IV.A.3. (Aug. 5, 2015)
3 Complainant conceded that between April 2006 and June 2006, her physician stated she was unable to return to work. HT, 121. On appeal, Complainant argues that the back pay period should start in July 2006.
4 In a separate letter to OWCP, the physician explained that the stepped-down restrictions were to allow Complainant to re-assimilate back into the workplace. He wrote that she had reached maximum medical improvement. He noted that he previously had recommended a 15-pound lifting restriction, but work was unavailable. He added that Complainant tried to return to work on January 5, 2007, but was not given work, and that Complainant was told in February 2007 that her lifting restriction had to be at least 50 pounds when he tried to make it 30 pounds.
5 Complainant contended that on July 26, 2007, the work chair she was sitting in jerked, causing her back injury to flare up. By letter dated August 1, 2007, the rehabilitation physician noted Complainant had increased pain in her knees, hips, and back, and had been using a transcutaneous electrical nerve stimulation (TENS) unit. On September 18, 2007, he gave work limitations similar to those he had given in July 2007. In her November 2007 affidavit, Complainant wrote that, while her current lifting restriction was 30 pounds, when she picked up a gallon of milk it frequently hurt, and she was unable to do laundry, vacuuming, cooking, or any yard work, and required a scooter when shopping because too much walking was painful. She wrote that she tried not to do a lot of bending and that, when she did bend, she used a cane to support herself. She stopped working again in September 2008.
6 Although Complaint contended her back injury occurred at work, the Agency did not consider it a work-related injury unless and until an OWCP claim was approved.
7 The AJ inadvertently wrote the history indicated a history of panic attacks since 1998.
8 In the August 17, 2009, hearing, Complainant presented an exhibit marked Complainant Hearing Exhibit 2, from the clinic where she was treated by mental health professionals. In May 2008, a clinic staff therapist wrote that Complainant started receiving mental health treatment at the clinic for Major Depressive Disorder in January 2008. At the hearing, Complainant testified she was treated at the clinic prior by to January 2008, but submitted no evidence thereof.
9 The rehabilitation physician wrote that in passenger check-point screening Complainant could not wand using a hand-held metal detector, monitor the walk-through metal detector, nor conduct bag search (lift up to 70 pounds)/Explosive Training Devices, and in baggage screening could not load and unload baggage (up to 70 pounds). The physician also indicated that Complainant could not demonstrate daily fitness for duty without impairment due to medication or sleep deprivation.
10 The record shows this request was actually made on June 20, 2006.
11 This case arose before January 1, 2009, the effective date of the Americans with Disabilities Act Amendments Act of 2008, which made a number of significant changes to the definition of "disability" under the Americans with Disabilities Act (ADA) and the Rehabilitation Act. Because this matter occurred in 2006 and 2007, the Commission will use the analytical framework as it existed before the enactment of the ADA Amendments Act of 2008, to determine whether Complainant is an "individual with a disability."
12 The reasonable accommodation of job restructuring means restructuring a job by reallocating or redistributing non-essential, marginal job functions. Interpretive Guidance on Title I of the Americans With Disabilities Act (ADA), Appendix to 29 C.F.R. 1630.2(o).
13 On July 18, 2007, the rehabilitation physician implemented restrictions for Complainant of lifting, pushing and pulling up to 30 pounds; kneeling and squatting 10 minutes per hour; walking and standing 20 minutes per hour; and breaks of 10 minutes per hour.
14 An agency's failure to search for a reassignment does not shift the burden back onto it to show there were no vacancies for which the complainant was qualified. Prioleau v. U.S. Postal Serv., EEOC Appeal No. 07A40021 (May 9, 2005) (agency stated it would not make complainant another job offer until it heard from OWCP; burden did not shift).
15 This order applies to attorney fees and costs incurred after September 27, 2009.
---------------
------------------------------------------------------------
---------------
------------------------------------------------------------
2
0720100011
17
0720100011