0120081699
05-22-2009
Chandra Lang, Complainant, v. Eric K. Shinseki, Secretary, Department of Veterans Affairs, Agency.
Chandra Lang,
Complainant,
v.
Eric K. Shinseki,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 0120081699
Hearing No. 420-2006-00131X
Agency No. 200L-0520-200510364
DECISION
On March 3, 2008, complainant filed an appeal from the agency's final
order on compensatory damages, dated February 6, 2008, concerning
her equal employment opportunity (EEO) complaint claiming 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. The appeal is deemed
timely and is accepted pursuant to 29 C.F.R. � 1614.405(a). For the
following reasons, the Commission VACATES the agency's final order.
BACKGROUND
During the period at issue, complainant worked as a licensed practical
nurse (LPN) at the Veterans Affairs Medical Center (VAMC) in Biloxi,
Mississippi. Complainant was terminated during her probationary period.
Believing that her termination was based on her race, complainant filed
an EEO complaint.
At the conclusion of the investigation, complainant was provided 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 and the AJ held a hearing on February 6, 2007. On
March 19, 2007, the AJ issued a decision finding that complainant was
subjected to racial discrimination.
After determining that the complainant established a prima facie case,
the AJ examined the agency's proffered legitimate, non-discriminatory
reasons for terminating complainant. According to the agency, complainant
had exhibited a pattern of sick leave (SL) abuse since November 2004.
Complainant would take leave in conjunction with her scheduled days
off and/or with previously approved leave or major holidays. The AJ
plainly stated that the agency's reasons were "not believable" for
several reasons.
The AJ noted that the agency's proffered reason was inconsistent with
the letter of termination issued to complainant. The AJ determined
that for most of the dates cited in the termination letter, complainant
had provided a doctor's excuse. Complainant had only five days that
were not covered by a doctor's note and the record revealed that those
absences were related to caring for ill children, migraine headaches and
attending a funeral. Acknowledging that "in some circumstances this
might be sufficient to terminate an individual", the AJ found that in
the instant case the policy was not consistently enforced.
The AJ found that a white employee, with twice as many absences as
complainant and who only provided a reason for one occasion, was not
terminated during the probationary period. The only other employee
who was terminated during the probationary period had more absences
than complainant and had received both verbal and written counselings.
The AJ concluded that complainant's termination was discriminatory.
The AJ ordered the agency to reinstate the complainant, and provide
her with back pay, seniority and other benefits. Complainant was also
awarded $25,000.00 in compensatory damages. Specifically addressing
pecuniary damages, the AJ ordered the agency to pay for complainant's
medical insurance premiums and expenses that were over and above what
complainant would have incurred had she still been an employee of the
agency. Training regarding the relevant EEO laws was also ordered for
the responsible management officials.1
On April 12, 2007, the agency issued a decision fully implementing
the AJ's decision finding discrimination. Thereafter, following the
completion of an investigation of complainant's request for damages, the
agency issued a decision on compensatory damages. In the instant February
6, 2008 decision, the agency reduced complainant's request for $33,187.79
in pecuniary losses to $3,486.14. Complainant filed the instant appeal.
CONTENTIONS ON APPEAL
On appeal, complainant argues that the agency fails to account for
its reduced figure. Complainant contends that in its decision, the
agency generally "discusses ten reasons for disallowing what may be
ten categories of claims" and finds complainant's documentation to
be insufficient. Complainant, however, asserts that the amount of
documentation she submitted supports her claim for health care expenses.
More specifically, with respect to the agency's denial of
expenses incurred for the dependents acquired after her termination
(i.e. complainant's new husband and step-son), complainant argues that
she previously held family health benefits (for herself and two daughters)
and therefore the addition of two members should be irrelevant.
The agency also failed to reimburse complainant for expenses incurred
after she was reinstated to agency employment, but before her FEHB
coverage resumed. Complainant asserts that it was the agency's duty to
ensure her insurance was resumed as soon as possible, because the agency
was obligated to make her "whole."
Complainant also addresses the agency's denial of dental and orthodontic
expenses incurred before she returned to the agency. The agency found
that complainant did not show that such treatments were covered by her
FEHB insurance. However, complainant argues that she did have dental
insurance prior to her termination and it is immaterial whether the
coverage came from her FEHB insurance or a policy obtained through the
union. Complainant contends that if she had not been discriminatorily
removed, she would have been able to continue paying for dental
insurance.
In response to the agency's contention that complainant's documentation
fails to explain which services were covered by her FEHB insurance and
how much the insurance paid for those service, complainant argues that
the agency is in a better position to make such determinations.
Finally, regarding the agency's assertion that complainant's documents
are "disorganized" and seem to include duplicative claims, complainant
states that if the agency brings such documents to her attention she
can explain whether or not they are duplicates.
In response to complainant's appeal, the agency reiterates that the
main reason for the reduction in damages was the lack of sufficient
documentation. The agency contends that complainant has failed to bear
her burden of supporting her request for damages.
For example, regarding the dental coverage, the agency argues there is no
evidence indicating that complainant signed up for supplemental dental
coverage. The agency found, in fact, that complainant had confirmed
with the investigator that while the union offered such coverage, she
had not signed up for it.
ANALYSIS AND FINDINGS
As a preliminary matter, the Commission determines that because
neither the complainant nor the agency is appealing the AJ's finding
of discrimination, we shall not review the AJ's findings on liability.
Moreover, aside from the matter of health benefits, the parties do not
dispute the remedies awarded by the AJ. Consequently, the instant appeal
will only address the issue of lost health insurance benefits.
Complainant asserts that the agency improperly calculated the costs
associated with the loss of health insurance coverage. In order to be
made whole, complainant must be placed in the same position regarding
her share of the medical costs as nearly as possible to the situation
she would have been in if she had not been terminated on August 6,
2005. See Huyck v. Department of Defense, EEOC Appeal No. 01952015
(October 31, 1997). Accordingly, an award of back pay should compensate a
prevailing complainant for loss of health insurance coverage by either:
(1) reimbursing her for health insurance premiums paid to continue in
an agency-sponsored insurance plan or to secure alternative coverage;
or (2) paying her for uninsured medical expenses incurred during the
relevant period up to the amount the agency would have contributed to her
health insurance premiums. See Wrigley v. United States Postal Service,
EEOC Petition No. 04950005 (February 15, 1996).
Based on a review of the testimony, documents and arguments presented
by both complainant and the agency, it appears that the parties have
inadvertently complicated matters by placing their focus on individual
medical services and expenses experienced by complainant during the
relevant time period. Instead of attempting to determine whether
or not a particular service was covered by complainant's insurance,
or what percentage of the cost was paid by the insurance company, the
first inquiry should be if and when complainant had insurance coverage.
During complainant's employment with the agency she had health insurance
coverage through her FEHB, Blue Cross Blue Shield (BCBS). Upon her
discriminatory termination, on August 6, 2005, her coverage by BCBS
ceased. Complainant was unemployed and without insurance from August
6, 2005 until October 31, 2005. At that time, she was hired at Garden
Park Medical center and obtained health insurance from United Healthcare
(United). This coverage continued through her reinstatement at the agency,
wherein her coverage with BCBS resumed. 2
While complainant may seek reimbursement of her uninsured medical expenses
for a portion of the back pay period while also seeking reimbursement
for paid health insurance premiums during another portion of her back
pay period, we note that she is not entitled to reimbursement of both
her uninsured medical costs and her paid health insurance premiums
during the same period. Accordingly, during the period when complainant
did not have any health insurance coverage, she would be entitled to
reimbursement of her uninsured medical costs. In addition, during the
period when complainant paid for her own health insurance, she could
seek reimbursement for the health insurance premiums.
Consequently, the Commission shall remand the matter to the agency for a
supplemental investigation. Specifically, complainant shall submit to the
agency documentation supporting any uninsured medical expenses incurred
between August 6, 2005 and October 31, 2005.3 Complainant is also entitled
to reimbursement for the premiums she paid for her coverage by United from
October 31, 2005 until she was reinstated at the agency on May 18, 2007.
On remand, the complainant shall provide evidence of the premiums she paid
for her health insurance while employed at Garden Park Medical Center.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal,
including those not specifically addressed herein, the agency's February
6, 2008 decision regarding compensatory damages is VACATED. The matter
is REMANDED to the agency for a supplemental investigation as set forth
in the ORDER below.
ORDER
Within forty-five (45) calendar days of the date this decision becomes
final, the agency is Ordered to conduct a supplemental investigation
pertaining to complainant's entitlement to health benefits incurred
during the relevant time. The complainant shall submit evidence in
support of her claim, specifically addressing: (1) any uninsured medical
expenses she incurred between August 6, 2005 and October 31, 2005; and,
(2) the premiums paid for coverage under United Healthcare from October
31, 2005 until her reinstatement with the agency. The agency shall then
issue a new final decision on compensatory damages, regarding health
benefits, determining the appropriate payment due to complainant along
with appeal rights.
A copy of the agency's new decision must be sent to the Compliance
Officer as referenced below.
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
May 22, 2009
__________________
Date
1 In a separate order, following submissions by both parties, the AJ
awarded complainant $33,570.00 in attorney's fees and $633.52 in costs.
2 Based on the instant record it is unclear when precisely the United
coverage ended and the BCBS began again. While she was reinstated on
May 18, 2007, complainant stated to the investigator that her United
plan was maintained until the end of June 2007.
3 As noted above, complainant is only entitled to reimbursement for
such expenses "up to the amount the agency would have contributed to
her health premiums." See McKinney v. United States Postal Service,
EEOC Petition No. 04980005 (August 5, 1999).
??
??
??
??
2
0120081699
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
7
0120081699
8
0120081699