0120072583
06-12-2009
Patricia A. Bilowus-Claar, Complainant, v. Ken Salazar, Secretary, Department of the Interior, Agency.
Patricia A. Bilowus-Claar,
Complainant,
v.
Ken Salazar,
Secretary,
Department of the Interior,
Agency.
Appeal No. 0120072583
Agency No. FNP-03-008
DECISION
On May 3, 2007, complainant filed an appeal from the agency's February 13,
2007 final action concerning the compensatory damages award emanating from
a finding of discrimination in her equal employment opportunity (EEO)
complaint with regard to a violation of the Rehabilitation Act of 1973,
29 U.S.C. � 791 et seq. The appeal is deemed timely and is accepted
pursuant to 29 C.F.R. � 1614.405(a).1 For the following reasons, the
Commission REVERSES the agency's final action.
The record reveals that in our previous decision, Patricia
A. Bilowus-Claar v. Department of the Interior, EEOC Appeal No. 01A35287
(December 15, 2005), we found that the agency discriminated against
complainant on the basis of her disability (profoundly visually-impaired
due to diabetic retinopathy) with regard to one claim in her complaint
when it failed to reasonably accommodate her during her employment as
a Visitor Use Assistant for the summer season from May 17, 2002 through
September 28, 2002..
Pursuant to our finding of discrimination, the agency was ordered
to in part provide complainant with notice of her right to submit
objective evidence in support of her claim for compensatory damages.
On February 13, 2007, the agency issued a final action wherein it awarded
complainant $500.00 in compensatory damages. The agency noted that by
letter dated January 30, 2006, it requested that complainant provide
objective, medical evidence and information to support her compensatory
damage claim. The agency stated that complainant submitted documentation
dated March 28, 2006, in support of her compensatory damage claim. The
agency noted that complainant claimed she was entitled to compensatory
damages for pain and suffering due to the agency's discriminatory conduct
that caused anguish, loss of income, and harassment, and stress and
other symptoms such as depression, feeling ashamed, and worthlessness.
The agency stated that in response to complainant's submission, it sent
her a letter dated August 2, 2006, requesting that she provide statements,
medical evidence, or other proof of actual harm. According to the agency,
it sent another letter dated October 20, 2006, to advise complainant of
the importance of the requested information.
The agency determined that $500.00 was a reasonable award for
the emotional suffering complainant claimed that she encountered
in connection with the agency's actions. The agency stated that in
calculating this amount, it considered the nature and severity of the
alleged emotional distress and symptoms, the duration of the alleged
distress, the nature of the agency's conduct, and awards in similar
cases. According to the agency, its award of $500.00 in non-pecuniary,
compensatory damages resulted primarily from complainant's failure to
submit more compelling evidence in support of her claim. The agency noted
that the discriminatory action at issue in the compensatory damage claim
was the lack of reasonable accommodation during the period of May 17, 2002
through September 28, 2002. The agency noted that there was no medical
documentation submitted even though complainant claims that the agency was
responsible for aggravating her eyesight. The agency determined that the
documentation submitted had a nexus with some of the harm that complainant
experienced, but was of short duration. The agency acknowledged that the
discrimination against complainant adversely affected complainant with
regard to visual acuity, stress, and low self-esteem. The agency further
determined that complainant failed to provide any objective evidence to
support her entitlement to past pecuniary damages. The agency noted that
complainant's March 28, 2006 submission made no claims for past pecuniary
damages and complainant did not request future pecuniary damages.
On appeal, complainant contends that the award of $500.00 is contrary
to the weight of the evidence. Complainant requests that the award
be increased to $30,000.00 and to include past and future pecuniary
and non-pecuniary, compensatory damages. Complainant claims that she
has suffered continual sadness, depression, and loss of consortium
with her husband. Complainant further claims to have suffered loss
of self-esteem and she argues that an award of at least $10,000 in
non-pecuniary, compensatory damages is necessary to have a substantial
impact on the policies, practices, and operations of the agency so as
to redress the harm that she suffered and deter future discrimination.
Complainant maintains that the discrimination against her is the proximate
cause of her past and present unemployed status. Complainant states that
she has not taken full-time work since working for the agency and she
notes that she was rejected after reapplying for the position she held.
Complainant contends that she is entitled to $20,000.00 in past and
future pecuniary damages.
In support of her claim, complainant's husband states in an affidavit
that complainant was comfortable working with her supervisors and
coworkers until her first line supervisor made a public joke at her
request for accommodations. He states that complainant would then come
home every night after work and cry her eyes out in despair. He claims
that the agency has caused complainant to suffer hurt, depression, and
anguish. He states that complainant now doubts her abilities and talents
not only with regard to her career but also as to their marriage as they
contemplated separation. He states that complainant would sometimes
stay in bed all day without getting out of her pajamas. He states that
she has experienced extreme mood swings crying one moment and being
highly agitated another moment. Complainant's husband maintains that
complainant's self-esteem has been severely and permanently damaged. He
states that she doubts herself and has a difficult time establishing and
maintaining friendships with others for fear of them not accepting her as
a result of her visual impairment. He maintains that she is embarrassed
about her disability and feels like less than a full person and is not
the person he knew prior to the discrimination.
Section 102(1) of the Civil Rights Act of 1991, 105 Stat. 1071,
Pub. L. No. 102-166, codified as 42 U.S.C. �1981a authorizes an award
of compensatory damages as part of make whole relief for intentional
discrimination in violation of Title VII of the Civil Rights Act of 1964,
as amended. Section 1981(a)(b)(2) indicates that compensatory damages do
not include backpay, interest on backpay, or any other type of equitable
relief authorized by Title VII. Section 1981a(b)(3) limits the total
amount of compensatory damages that may be awarded each complaining party
for future pecuniary losses, emotional pain, suffering, inconvenience,
mental anguish, loss of enjoyment of life, and other non-pecuniary losses,
according to the number of individuals employed by the respondent. The
limit for a respondent who has more than 500 employees is $300,000.00. 42
U.S.C. 1981a (b) (3) (D) .
To receive an award of compensatory damages, the complainant must
demonstrate that he/she has been harmed as a result of the agency's
discriminatory actions; the extent, nature and severity of the harm;
and the duration or expected duration of the harm. Anthony Rivera
v. Department of the Navy, EEOC Appeal No. 01934157 (July 22, 1994);
Compensatory and Punitive Damages Available Under Section 1902 of
the Civil Rights Act of 1991, EEOC Notice No. N915.002 (July 14,
1992), at 11-12, 14. The Commission notes that for a proper award of
non-pecuniary, compensatory damages, the amount of the award should not
be "monstrously excessive" standing alone, should not be the product of
passion or prejudice, and should be consistent with the amount awarded
in similar cases. See Ward-Jenkins v. Department of the Interior, EEOC
Appeal No. 01961483 (March 4, 1999) (citing Cygnar v. City of Chicago,
865 F.2d 827, 848 (7th Cir. 1989)).
In support of her claim for non-pecuniary, compensatory damages,
complainant and her husband state that complainant experienced stress,
a loss of self-esteem, a deterioration in the marital relationship,
sadness, depression and anguish as a result of the agency's failure to
provide a reasonable accommodation. Complainant presented no medical
evidence on appeal or in her letter to the agency dated March 28, 2006,
that her emotional distress was attributable to the discrimination.
Although such evidence is not essential to the recovery of compensatory
damages, its absence may affect the amount of the award. See Lawrence
v. United States Postal Service, EEOC Appeal No. 01952288 (April 18,
1996). The affidavit submitted by complainant's husband persuasively
describes complainant as someone who experienced significant emotional
problems as a result of the discrimination. Complainant also claims that
she suffered further deterioration of her vision. In her submission
to the agency dated March 28, 2006, she stated that she experienced a
detachment of her right retina during the period where she was denied
a reasonable accommodation. She stated that her right eye became
totally blind. However, complainant acknowledged that her physicians
stated that it could not be established that the agency was responsible.
In this instance, medical evidence is necessary to support this aspect
of complainant's claim and complainant does not provide such evidence.
Complainant stated in her submission to the agency that her life at
home has been impacted adversely as her stream of earnings has ceased.
Although complainant has not resumed full time work since the period
where she was denied reasonable accommodation, complainant has not
presented sufficient evidence in either the submission to the agency
or the instant appeal to establish that this lack of work and earnings
is clearly related to the discrimination. Thus, an award for past or
future pecuniary, compensatory damages is not warranted.
Overall, we consider the agency's award of $500.00 for non-pecuniary,
compensatory damages to be insufficient in light of the emotional
adversity that complainant has experienced due to the discrimination.
Taking into account the extent, nature, severity and duration of the harm
suffered, we find that $2,000.00 is an appropriate award to compensate
complainant for her emotional suffering due to disability-based
discrimination. Similar cases with somewhat similar evidence support
this award. See, e.g., Foy v. United States Postal Service, EEOC Appeal
No. 01A51337 (March 18, 2005) ($2,000.00 award for non-pecuniary,
compensatory damages where the agency failed to provide complainant
with a reasonable accommodation for his disability, which complainant
testified resulted in much stress and frustration); Harris v. Department
of Agriculture, EEOC Appeal No. 01966746 (December 11, 1998) ($2,000.00
award for non-pecuniary, compensatory damages where the agency failed
to promote complainant, which complainant testified resulted in low
self-esteem, stress, and depression for more than a year).
The agency's final action is MODIFIED. The agency shall pay complainant
$2,000.00 in non-pecuniary, compensatory damages and comply with the
Order herein.
ORDER
Within 30 days of the date this decision becomes final the agency shall:
1. Pay complainant non-pecuniary, compensatory damages in the amount of
$2,000.00.
2. Submit a report of compliance, as provided in the paragraph entitled
"Implementation of the Commission's Decision." The report shall include
documentation of the agency's actions in compliance with this Order.
ATTORNEY'S FEES (H0900)
If complainant has been represented by an attorney (as defined by
29 C.F.R. � 1614.501(e)(1)(iii)), he/she is entitled to an award of
reasonable attorney's fees incurred in the processing of the complaint.
29 C.F.R. � 1614.501(e). The award of attorney's fees shall be paid
by the agency. The attorney shall submit a verified statement of fees
to the agency -- not to the Equal Employment Opportunity Commission,
Office of Federal Operations -- within thirty (30) calendar days of this
decision becoming final. The agency shall then process the claim for
attorney's fees in accordance with 29 C.F.R. � 1614.501.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K1208)
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 (M1208)
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 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 (R0408)
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 (Z1008)
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 from the Court that
the Court appoint an attorney to represent you and that the Court also
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 with
the Court 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
June 12, 2009
__________________
Date
1Although it appears complainant filed the instant appeal more than a
month after the expiration of the 30- day filing period, we find that
the time limitation is waived in light of the fact that the agency does
not refute complainant's contention that the final action was issued
in a font size that complainant was unable to read. Furthermore, we
note that the agency has not placed evidence in the record showing when
complainant received the agency's February 13, 2007 decision.
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0120072583
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120072583