0120123565
02-28-2013
Rebecca Lopez-Rosende, Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service (Pacific Area), Agency.
Rebecca Lopez-Rosende,
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service
(Pacific Area),
Agency.
Appeal No. 0120123565
Hearing No. 480-2011-00060X 00061X
Agency No. 4F-920-0002-06 0032-06
DECISION
On September 17, 2012, Complainant filed an appeal from the Agency's August 27, 2012, final order concerning her equal employment opportunity (EEO) complaints 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., and Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq. The Commission deems the appeal timely and accepts it pursuant to 29 C.F.R. � 1614.405(a).
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Distribution Window Clerk at the Agency's Post Office facility in Apple Valley, California.
On December 23, 2005 and January 18, 2006, Complainant filed two EEO complaints alleging that the Agency discriminated against her on the bases of national origin (Spanish), sex (female), disability, and reprisal for prior protected EEO activity under Title VII and the Rehabilitation Act1 when:
1. On October 4, 2005, the Supervisor discussed Complainant's medical condition, restrictions and job position with other employees.
2. On December 19, 2005, Complainant was told by the Supervisor and the Officer-in-Charge that, until she signed her job offer, she would continue to have problems with her pay.
3. On December 19, 2005, the Injury Compensation Specialist (Specialist) denied Complainant a chair prescribed by her doctor unless Complainant gave her a copy of her prescription.
4. On December 21 and 23, 2005, Complainant was threatened by the Manager unless Complainant signed a job offer, she would not get paid.
5. On an unspecified date, the Injury Compensation office told the Department of Labor not to pay Complainant for 80 hours per pay period.
6. Complainant was not paid for two days during Pay Period 19, and one day each for Pay Periods 23 and 25 of 2005.
7. Complainant was denied overtime opportunities from December 5, 2005 and onward.
8. Complainant was not paid for 16 hours of pay during Pay Period 1 of 2006.
9. Complainant was denied eight hours of pay for Pay Period 8 of 2006.
10. On November 18, 2005, the Officer-in-Charge stated that Complainant was presented a Limited Job Offer.
The matters were investigated. At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation and notice of her right to request a hearing before an EEOC Administrative Judge (AJ). Complainant timely requested a hearing on both complaints. The AJ consolidated the complaints and held a hearing on February 28, 2012. Following the hearing, the AJ issued a decision on July 19, 2012.
The AJ found that the Agency violated the Rehabilitation Act with respect to claim (1) alleging improper disclosure of Complainant's medical condition and claim (3) alleging a denial of reasonable accommodation in the form of a chair prescribed by her doctor from December 2005 to June 2006. As to claim (1), the AJ found that the Supervisor informed Complainant's co-workers about her shoulder injury, shoulder surgery and diagnosis of rotator cuff problems. As to claim (3), the AJ found that Complainant had initially made her request for a chair with medical documentation in August 1999. However, Complainant did not pursue the matter until December 2005, when she renewed her request for the chair. The AJ noted that the issue was limited to the denial of the chair requested in December 2005 to the date it was provided in June 2006. As such, the AJ determined that the Agency failed to timely respond to Complainant's accommodation request which constituted a violation of the Rehabilitation Act. As to the remaining claims raised in the complaints, the AJ determined that Complainant failed to show that she was subjected to discrimination.
The AJ awarded Complainant $2,500 in compensatory damages for the disclosure and the delay in providing the chair to Complainant, concluding that Complainant's request for $150,000.00 was excessive. The AJ noted that although Complainant testified that she had neck and back problems and that she was "devastated and hurt" by the events alleged in her complaint, she did not provide any evidence to establish what portion of her distress was caused by the two events which constituted violation of the law. Moreover, the AJ determined that the finding of discrimination was limited to the December 2005 to August 2006 time period. As such, the AJ concluded that $ 2,500 was an appropriate award based on the harm established and the Commission's case precedent. The AJ also ordered the Agency to post a notice of the finding of discrimination and provide training to the Officer-in-Charge regarding medical confidentiality under the Rehabilitation Act.
The Agency subsequently issued a final order adopting the AJ's decision in full, including the finding that Complainant proved that the Agency subjected her to discrimination with respect to claims (1) and (3).
This appeal from Complainant followed.
Complainant asserted that she has been denied the ergonomic chair since 1999. Therefore, she should be provided non-pecuniary damages for nearly seven years of the Agency's failure to provide a reasonable accommodation. As such, Complainant claimed she is entitled to $ 150,000.00. The Agency responded to the appeal noting that the award issued by the AJ was appropriate. The Agency indicated that Complainant knew that the issue before the AJ was limited to December 2005 to August 2006. The Agency also noted that Complainant had other EEO matters between 1999 and 2005. As such, she could have raised the denial of the ergonomic chair since the original request was made in 1999.
ANALYSIS AND FINDINGS
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 110, Chapter 9, at � VI.B. (November 9, 1999).
As an initial matter, we note that, on appeal, Complainant has only challenged the AJ's award of $2,500 in compensatory damages. Therefore, we will provide no further consideration of the AJ's decision on liability and will only the review the remedial portion concerning compensatory damages. Pursuant to section 102(a) of the Civil Rights Act of 1991, a complainant who establishes his or her claim of unlawful discrimination may receive, in addition to equitable remedies, compensatory damages for past and future pecuniary losses (i.e., out of pocket expenses) and non-pecuniary losses (e.g., pain and suffering, mental anguish). 42 U.S. C. � 1981a(b)(3). For an employer with more than 500 employees, such as the Agency, the limit of liability for future pecuniary and non-pecuniary damages is $300,000. Id.
The particulars of what relief may be awarded, and what proof is necessary to obtain that relief, are set forth in detail in EEOC Notice No. 915.002, Compensatory and Punitive Damages Available Under Section 102 of the Civil Rights Act of 1991 (July 14, 1992). Briefly stated, the complainant must submit evidence to show that the agency's discriminatory conduct directly or proximately caused the losses for which damages are sought. Id. at 11-12, 14; Rivera v. Dep't of the Navy, EEOC Appeal No. 01934157 (July 22, 1994). The amount awarded should reflect the extent to which the Agency's discriminatory action directly or proximately caused harm to the complainant and the extent to which other factors may have played a part. EEOC Notice No. N 915.002 at 11-12. The amount of non-pecuniary damages should also reflect the nature and severity of the harm to Complainant, and the duration or expected duration of the harm. Id. at 14.
In Carle v. Dep't of the Navy, the Commission explained that "objective evidence" of non-pecuniary damages could include a statement by omplainant explaining how he or she was affected by the discrimination. EEOC Appeal No. 01922369 (January 5, 1993). Statements from others, including family members, friends, and health care providers could 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 the time the injured party has suffered from the harm. Carpenter v. Dep't of Agriculture, EEOC Appeal No. 01945652 (July 17, 1995).
Complainant has claimed that she should be awarded $150,000 in non-pecuniary compensatory damages. The basis she provides for this request is that she was denied the accommodation of the chair since 1999. Upon review, however, we find that Complainant has not supported her request to increase the award of non-pecuniary compensatory damages provided by the AJ. As noted in the AJ's decision, the claim of denial of reasonable accommodation was limited to the December 2005 to June 2006 timeframe, a six month period. Complainant did not challenge the limitation of the claim before the AJ or with the Agency when her complaint was initially accepted. As such, we determine that the AJ properly limited the finding of discrimination from December 2005 to June 2006. Further, we note that Complainant did not provide any additional evidence to support her assertion that she should have been provided more in non-pecuniary damages for this timeframe. Therefore, we conclude that the AJ's award of $2,500 based on Complainant's statement regarding her anger and frustration and the Commission's past precedent in similar cases. See, e.g., Pastva v. U.S. Postal Serv., EEOC Appeal No. 01A21610 (March 6, 2003) (awarding $2,500 for denial of reasonable accommodation resulting in Complainant becoming withdrawn, depressed, anxious, forgetful, as well as experiencing family and marital problems, and financial difficulties).
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we AFFIRM the Agency's final action adopting the AJ's decision.
ORDER (C0610)
The Agency is ordered to take the following remedial actions within thirty (30) days of the date this decision becomes final:
1. Pay Complainant $2,500 in non-pecuniary compensatory damages.
2. Conduct training for the management officials who has been failed to respond to Complainant's reasonable accommodation request in a timely manner and failed to keep Complainant's medical information confidential. The Agency shall address these employees' responsibilities with respect to responding to reasonable accommodation requests and keeping medical information confidential.
3. Consider taking disciplinary action against the Agency officials identified as being responsible for the delay in providing a reasonable accommodation and releasing Complainant's medical condition. 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.
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.
POSTING ORDER (G0610)
The Agency is ordered to post at its Post Office facility copies of the attached notice. Copies of the notice, after being signed by the Agency's duly authorized representative, shall be posted by the Agency within thirty (30) calendar days of the date this decision becomes final, and shall remain posted for sixty (60) consecutive days, in conspicuous places, including all places where notices to employees are customarily posted. The Agency shall take reasonable steps to ensure that said notices are not altered, defaced, or covered by any other material. The original signed notice is to be submitted to the Compliance Officer at the address cited in the paragraph entitled "Implementation of the Commission's Decision," within ten (10) calendar days of the expiration of the posting period.
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 (M0610)
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 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 (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 (Z0610)
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
February 28, 2013
__________________
Date
1 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 2005 and 2006, 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.
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0120123565
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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