0120160256
04-20-2018
Brendon L.,1 Complainant, v. Dr. David J. Shulkin, Secretary, Department of Veterans Affairs, Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Brendon L.,1
Complainant,
v.
Dr. David J. Shulkin,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 0120160256
Hearing No. 430-2013-00334X
Agency No. 2004-0658-2012104255
DECISION
On October 23, 2015, Complainant filed an appeal with the Equal Employment Opportunity Commission (EEOC or Commission), pursuant to 29 C.F.R. � 1614.403(a), from the Agency's September 16, 2015, final order concerning his equal employment opportunity (EEO) complaint 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. For the following reasons, the Commission AFFIRMS the Agency's final order which fully implemented the Equal Employment Opportunity Commission's Administrative Judge's (AJ) default decision and award of compensatory damages.
ISSUE PRESENTED
The issue presented in this case is whether the AJ properly awarded Complainant $3,000.00 in non-pecuniary compensatory damages.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a RN Clinical Coordinator at the Agency's VA Medical Center in Salem, Virginia. On September 14, 2012, Complainant filed an EEO complaint alleging that the Agency discriminated against him on the basis of reprisal for prior protected EEO activity when on June 28, 2012, he became aware that the Associate Chief Nurse, coerced his team members to initiate false written accusations/charges against him.
At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation and notice of his right to request a hearing before an Equal Employment Opportunity Commission Administrative Judge. Complainant timely requested a hearing. Thereafter, the AJ issued an Order to Show Cause for the Agency's failure to timely conduct the EEO investigation. The Agency did not respond and on May 27, 2015, the AJ issued a Default Judgment, which indicated that Complainant was entitled to relief; and on July 20, 2015, a hearing on damages was conducted.
The damages hearing included evidence provided by Complainant's family, friends and colleagues. Complainant alleged that the retaliation that he experienced exacerbated his problems with cluster headaches and pain. Complainant indicated that after he learned that his coworkers had been asked to write statements about him, he had to increase all three of his medications. Complainant also alleged that he suffered from gastrointestinal problems and insomnia. The AJ found Complainant's testimony regarding this issue was confusing, vague, and unclear. The AJ also found that Complainant's testimony was not credible with regard to him being reprimanded after a coworker complained but his testimony was credible with respect to how the discrimination affected his family and work life. Therefore, the AJ awarded Complainant $3,000.00 in non-pecuniary compensatory damages, among other relief.
In reaching this decision, the AJ indicated that she considered the nature of the retaliatory act, the severity of the physical and emotional harm suffered and the length of time Complainant suffered the harm. She also considered the fact Complainant was already suffering from physical and emotional problems prior to the incident at issue. The evidence showed the incident at issue exacerbated these pre-existing problems. She also considered the fact that Complainant offered corroborative testimony from his wife and coworkers, and did not proffer any probative medical evidence to support his claim. Finally, she considered awards granted in similar cases. Based on the above considerations, she found that $3,000.00 was a proper award for the nonpecuniary damages which Complainant suffered.
The Agency subsequently issued a final order adopting the AJ's default judgment and finding regarding compensatory damages. The Agency also adopted the additional relief ordered by the AJ which included training, possible discipline and the posting of a notice in the workplace for 60-days.
CONTENTIONS ON APPEAL
On appeal, Complainant did not submit a brief. In response, the Agency contends that because it fully implemented the AJ's decision, the only thing that Complainant could be taking issue with was the compensatory damages award of $3,000.00. The Agency requests that its final order be affirmed as Complainant has made no argument as to why the finding should be reversed.
ANALYSIS AND FINDINGS
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 110, Chapter 9, at � VI.B. (Aug. 5, 2015).
When calculating non-pecuniary damages, the trier of fact does not have a precise formula for determining non-pecuniary losses, except that the award should reflect the nature and severity of
the harm and the duration or expected duration of the harm. Loving v. Department of the Treasury, EEOC Appeal No. 01955789 (August 29, 1997). Further, the award should be consistent with other awards in similar cases. Hodgeland v. Department of Agriculture, EEOC Appeal No. 01976440 (June 14, 1999). A proper award of non-pecuniary damages should not be "monstrously excessive" standing alone, the product of passion or prejudice, and consistent with the amount awarded in similar cases. Ward-Jenkins v. Dep't of the Interior, EEOC Appeal No. 01961483 (Mar. 4, 1999) (citing Cygnar v. City of Chicago, 865 F.2d 827, 848 (7th Cir. 1989). Generally, medical evidence is not required to support a claim of damages. Lawrence v. USPS, EEOC Appeal No. 01952288 (April 18, 1996); Carpenter v. USDA, EEOC Appeal No. 1945652 (July 17, 1995); Bernard v. Department of Veteran Affairs EEOC Appeal No. 01966861 (July 17, 1998). However, the Commission has noted in several cases that the failure to produce medical evidence can affect the amount of an award.
Based on a thorough review of the record, we find that Complainant has not presented any persuasive evidence which suggests that the AJ erred with regard to the award of compensatory damages. We find the $3,000.00 amount awarded to be consistent with similar amounts awarded. See e.g. EEOC Appeal No. 0720130023 (April 25, 2014)(awarding $3,000.00 in nonpecuniary compensatory damages for a retaliatory performance appraisal and denial of leave); Smith v. Department of the Army, EEOC Appeal No. 01A30147 (January 14, 2004) (awarding $3,000.00 in nonpecuniary compensatory damages for a retaliatory performance appraisal where the complainant established that some of his stress, depression, and impaired family and personal relationships were related to retaliation); McClellan v Department of Defense, EEOC Appeal No. 01A12900 (August 22, 2002)(awarding the complainant with $3,000.00 in compensatory damages for unlawful race and reprisal discrimination where the discrimination exacerbated an existing medical condition).
CONCLUSION
Based on a thorough review of the record, the Commission AFFIRMS the Agency's final order finding Complainant is entitled to an award of non-pecuniary compensatory damages in the amount of $3,000.00.
ORDER
Within one-hundred and twenty (120) days of the date this decision is issued, to the extent that it has not already done so, the Agency is ordered to pay Complainant $3,000.00 in non-pecuniary compensatory damages. The Agency is further directed to submit a report of compliance in digital format as provided in the statement entitled "Implementation of the Commission's Decision." The report shall be submitted via the Federal Sector EEO Portal (FedSEP). See 29 C.F.R. � 1614.403(g). Further, the report must include evidence that the corrective action has been implemented.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0617)
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 in the digital format required by the Commission, and submitted via the Federal Sector EEO Portal (FedSEP). See 29 C.F.R. � 1614.403(g). 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 (M0617)
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. A party shall have twenty (20) calendar days of receipt of another party's timely request for reconsideration in 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). All requests and arguments must be submitted to the Director, Office of Federal Operations, Equal Employment Opportunity Commission. Complainant's request may be submitted via regular mail to P.O. Box 77960, Washington, DC 20013, or by certified mail to 131 M Street, NE, Washington, DC 20507. 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 agency's request must be submitted in digital format via the EEOC's Federal Sector EEO Portal (FedSEP). See 29 C.F.R. � 1614.403(g). 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 (R0610)
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 (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
__4/20/18________________
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.
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