[Redacted], Estelle H., 1 Complainant,v.Carlos Del Toro, Secretary, Department of the Navy, Agency.

Equal Employment Opportunity Commission

Feb 2, 2023

Appeal No. 2021003558 (E.E.O.C. Feb. 2, 2023)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Estelle H.,1 Complainant, v. Carlos Del Toro, Secretary, Department of the Navy, Agency. Appeal No. 2021003558 Hearing No. 430-2019-000325X Agency No. DON 18-00183-01608 DECISION On June 4, 2021, Complainant, represented by counsel, filed an appeal with the Equal Employment Opportunity Commission (EEOC or Commission), per 29 C.F.R. § 1614.403(a), from the Agency’s May 5, 2021 final order on her equal employment opportunity (EEO) complaint alleging employment discrimination in violation of, in relevant part, Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq. BACKGROUND During the period at issue, Complainant was employed by the Agency as a Substance Abuse Counselor, GS-0101-09, at the Naval Medical Center Portsmouth, Directorate for Mental Health, Substance Abuse Rehabilitation Program clinic in Portsmouth, Virginia. By January 11, 2018, the Agency notified Complainant that she would be rotating away from the substance abuse satellite Oceana clinic in Virginia Beach, Virginia, where she was stationed for seven years to the substance abuse main clinic inside the Naval Medical Center in Portsmouth, Virginia. Complainant’s route from home to the Portsmouth clinic including driving on a busy interstate through a tunnel, unlike her route to the Oceana clinic. 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. 2021003558 2 On June 19, 2018, Complainant filed an EEO complaint, as amended, alleging in relevant part that the Agency discriminated against her based on disability (Hypertension) when it denied her request to return to the Oceana clinic. After an Agency EEO investigation, and hearing before an EEOC Administrative Judge (AJ) which included testimony on compensatory damages, the AJ found that on December 31, 2017, February 9, 2018, early March 2018, and March 20, 2018 Complainant told or referenced to the Department Head, Substance Abuse Rehabilitation Program, Naval Medical Center Portsmouth, who was her third line supervisor, that her driving commute from her home to the Portsmouth main clinic included a busy interstate and busy tunnel. The AJ found that on the first telling Complainant said she feared both these things so much that they had a history of making her break out in hives, on the second telling she said this commute made her suffer with stress, anxiety and hives and asked to return to the Oceana clinic, on the third telling said the commute made her stressed and anxious and asked to return to the Oceana Clinic, and on the fourth telling advised her blood pressure went up to 160/110 because of the commute that day, she could not do it anymore, and signed resignation documents before him. Complainant resigned effective April 6, 2018. The AJ found that Complainant’s February 9, 2018, early March 2018, and March 20, 2018 discussions with the Department Head constituted requests for reasonable accommodation, and each time in response the Agency did not engage in the reasonable accommodation interactive process, effectively cutting it off. Citing case precedent, the AJ found that an agency’s failure to engage in the interactive process does not, in itself, constitute a violation of the Rehabilitation Act. Instead, liability depended on a finding that, had a good faith interactive process occurred, the parties could have found a reasonable accommodation. The AJ found that if the Agency engaged in the interactive process, it would have likely found an interim or even permanent accommodation. Specifically, it could have provided Complainant a temporary assignment back to the Oceana clinic while it determined what alternate commuting accommodations, if any, were available, provided professional assistance to find routes that avoided the tunnel, and explored what was causing Complainant’s blood pressure to get high during the commute. The AJ concluded that the Agency denied Complainant a reasonable accommodation in violation of the Rehabilitation Act. The AJ found that the denial of reasonable accommodation left Complainant no other option but to resign. The AJ found that the denial affected Complainant’s blood pressure, stress, and anxiety, and “ultimately led to her resignation from the Agency (resignation is not part of this matter)” (the parentheses and text inside them starting with resignation in original). 2021003558 3 Complainant testified that after she resigned, around mid-April 2018, she started a job in Norfolk, Virginia with Bon Secours Hospital in occupational health, trained with them and resigned around two months after she started because they had her traveling to Richmond, Virginia, for training and she could not do that. She testified that in September 2018, she started a job as a licensed clinical social worker certified drug counselor with the City of Virginia Beach where she still worked. The AJ awarded Complainant: (1) $15,000 in non-pecuniary compensatory damages; (2) back pay for what would have been Complainant’s salary from March 30, 2018 to the day in September 2018 she started working for the City of Virginia Beach, less interim income earned with Bon Secours; (3) Complainant’s medical expenses limited to doctor visits and medications incurred as a result of the Agency’s denial of reasonable accommodation for expenses for these treatments that occurred from March 30, 2018 to the day in September 2018 she started working for the City of Virginia Beach; (4) return Complainant to a position at either the Portsmouth, Oceana, or the Little Creek clinics and engage in an interactive process to determine whether she requires any accommodations; (5) $25,170.25 in attorney fees, (6) take corrective, curative, and preventative action to ensure disability discrimination does not recur, including 4 hours of training for three people the AJ identified by name that emphasizes the Agency and its managers engage in the interactive process when someone requests a reasonable accommodation, and to make another person, who the AJ identified by name, who cancelled the rotations, aware of the issues related to reasonable accommodations; and (7) post a notice to employees at the Portsmouth, Oceana, and Little Creek clinics that informs employees of this finding of discrimination based on disability for 60 consecutive days. In its final order, the Agency fully implemented the AJ’s decision. The instant appeal from Complainant followed. On appeal, Complainant explicitly challenges only the award of $15,000 in compensatory damages. She argues she sustained $200,000 in non-pecuniary damages as a result of the denial of reasonable accommodation because it resulted in long lasting or permanent increase in her high blood pressure, aneurysm of the ascending aorta, exacerbation of her anxiety, symptoms of Post-Traumatic Stress Disorder, reduction in her energy levels, professional motivations, and sociability, and fracture of her relationships with her sister, children, and others. In reply to Complainant’s appeal, the Agency points to Complainant’s testimony that prior to being denied reasonable accommodation she never had serious blood pressure issues, but medical documentation showed she was diagnosed with hypertension (primary) in January 2016. It argues that Complainant did not submit any medical records indicating a causal relationship between the denial of reasonable accommodation and her aortic aneurysm. The Agency points to Complainant’s testimony indicating that one of the reasons she sought treatment by a psychologist in October 2020, was her grieving about the untimely death of her oldest son in June 2020. 2021003558 4 It points to Complainant’s sister testimony that Complainant got very, very stressed and very, very angry by being assigned to rotate to the Plymouth main clinic because she felt targeted because she did not understand the rationale behind the decision and the Agency needed her in the Oceana clinic because she was licensed, but the AJ explicitly found Complainant was not singled out.2 ANALYSIS AND FINDINGS Per 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. 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. EEOC Management Directive 110, Chap. 9.VI.B., at pp. 9-17 to 9 - 18 (REV. Aug. 5, 2015). The Agency’s arguments in reply to Complainant’s appeal are all supported by the record. We find that the AJ’s award of $15,000 in non-pecuniary damages is supported by substantial evidence and is consistent with award amounts in cases the AJ cited. CONCLUSION Based on a thorough review of the record and the contentions on appeal, the Agency’s final order is AFFIRMED. ORDER (D0617) To the extent it has not already done so, the Agency shall: 1. Pay Complainant $15,000 in non-pecuniary compensatory damages. 2. Determine the appropriate amount of back pay, with interest, and other benefits due Complainant, per 29 C.F.R. § 1614.501, no later than sixty (60) calendar days after the date this decision is issued. The back pay period is from March 30, 2018 to the day in September 2018 that she started working for the City of Virginia Beach, less interim income earned with Bon Secours. Complainant shall cooperate in the Agency's efforts to 2 In finding no discrimination on Complainant’s rotation disparate treatment claim based on sex and age, the AJ explicitly found that her contention that she was singled out was not credible. 2021003558 5 compute the amount of back pay and benefits due, and shall provide all relevant information requested by the Agency. If there is a dispute regarding the exact amount of back pay and/or benefits, the Agency shall issue a check to Complainant for the undisputed amount within 60 days of the date the Agency determines the amount it believes to be due. Complainant may petition for enforcement or clarification of the amount in dispute. The petition must be filed with EEOC’s Compliance Officer, at the EEOC Public Portal at https://publicportal.eeoc.gov/Portal/Login.aspx, or alternatively using regular mail addressed to the EEOC, Office of Federal Operations in the header of this decision or by certified mail addressed to EEOC, Office of Federal Operations, 131 M Street, NE, Washington, DC 20507. 3. Pay Complainant’s medical expenses limited to doctor visits and medications incurred as a result of the Agency’s denial of reasonable accommodation for expenses for these treatments that occurred from March 30, 2018 to the day in September 2018 she started working for the City of Virginia Beach. 4. Within 30 days from the date of this decision, offer to Complainant in writing reinstatement to the position of Substance Abuse Counselor, GS-0101-09 at either the Portsmouth, Oceana, or Little Creek clinics with at least two weeks to consider the offer after she receives it and to engage in an interactive process to determine whether she requires any reasonable accommodations. 5. Pay $25,170.25 in attorney fees. 6. Take corrective, curative, and preventative action to ensure disability discrimination does not recur, including but not limited to 4 hours of training for the three individuals the AJ identified by name to be trained that emphasizes the Agency and its managers engage in the interactive process when someone requests a reasonable accommodation, and to make the individual the AJ identified by name who cancelled the rotation aware of the issues related to reasonable accommodations. The Agency must submit a report of compliance in digital format as written in the statement entitled "Implementation of the Commission's Decision." The report must be submitted via the Federal Sector EEO Portal (FedSEP). 29 C.F.R. § 1614.403(g). The report must 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. IMPLEMENTATION OF THE COMMISSION’S DECISION (K0719) Under 29 C.F.R. § 1614.405(c) and §1614.502, compliance with the Commission’s corrective action is mandatory. Within seven (7) calendar days of the completion of each ordered corrective action, the Agency shall submit via the Federal Sector EEO Portal (FedSEP) supporting documents in the digital format required by the Commission, referencing the compliance docket number under which compliance was being monitored. 2021003558 6 Once all compliance is complete, the Agency shall submit via FedSEP a final compliance report in the digital format required by the Commission. See 29 C.F.R. § 1614.403(g). The Agency’s final report must contain supporting documentation when previously not uploaded, and the Agency must send a copy of all submissions to the Complainant and his/her representative. 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. Failure by an agency to either file a compliance report or implement any of the orders set forth in this decision, without good cause shown, may result in the referral of this matter to the Office of Special Counsel pursuant to 29 C.F.R. § 1614.503(f) for enforcement by that agency. POSTING ORDER (G0617)3 The Agency is ordered to post at its Naval Medical Center Portsmouth, Directorate for Mental Health, Substance Abuse Rehabilitation Program clinics in Portsmouth, Oceana, and Little Creek Virginia 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 was issued, 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 as directed in the paragraph entitled "Implementation of the Commission's Decision," within 10 calendar days of the expiration of the posting period. The report must be in digital format, and must be submitted via the Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). 3 This order only applies to the extent the Agency has not already done the posting ordered by the AJ. 2021003558 7 STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0920) The Commission may, in its discretion, reconsider this appellate decision if Complainant or the Agency submits a written request that contains arguments or evidence that 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 for reconsideration must be filed with EEOC’s Office of Federal Operations (OFO) within thirty (30) calendar days of receipt of this decision. If the party requesting reconsideration elects to file a statement or brief in support of the request, that statement or brief must be filed together with the request for reconsideration. A party shall have twenty (20) calendar days from receipt of another party’s request for reconsideration within which to submit a brief or statement in opposition. See 29 C.F.R. § 1614.405; Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at Chap. 9 § VII.B (Aug. 5, 2015). Complainant should submit his or her request for reconsideration, and any statement or brief in support of his or her request, via the EEOC Public Portal, which can be found at https://publicportal.eeoc.gov/Portal/Login.aspx Alternatively, Complainant can submit his or her request and arguments to the Director, Office of Federal Operations, Equal Employment Opportunity Commission, via regular mail addressed to P.O. Box 77960, Washington, DC 20013, or by certified mail addressed to 131 M Street, NE, Washington, DC 20507. In the absence of a legible postmark, a complainant’s request to reconsider shall be deemed timely filed if OFO receives it by mail within five days of the expiration of the applicable filing period. See 29 C.F.R. § 1614.604. An agency’s request for reconsideration must be submitted in digital format via the EEOC’s Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). Either party’s request and/or statement or brief in opposition must also include proof of service on the other party, unless Complainant files his or her request via the EEOC Public Portal, in which case no proof of service is required. Failure to file within the 30-day time period will result in dismissal of the party’s request for reconsideration as untimely, unless extenuating circumstances prevented the timely filing of the request. Any supporting documentation must be submitted together with the 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). 2021003558 8 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: ______________________________ Carlton M. Hadden’s signature Carlton M. Hadden, Director Office of Federal Operations February 2, 2023 Date