0120102100
09-07-2010
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. 0120102100
Hearing No. 420-2006-00131X
Agency No. 200L-0520-200510364
DECISION
On April 16, 2010, Complainant filed an appeal from the Agency's March 15, 2010 final order concerning her 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. The Commission deems the appeal timely and accepts it pursuant to 29 C.F.R. � 1614.405(a). For the following reasons, the Commission MODIFIES the Agency's final order.
ISSUE PRESENTED
Whether Complainant is entitled to receive reimbursement from the Agency for $1,065.06 in medical bills related to the Agency's unlawful termination of Complainant.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Licensed Practical Nurse (LPN) at the Veterans Affairs Medical Center facility in Biloxi, Mississippi. The record reveals that Complainant filed a formal complaint in which she alleged that she was subjected to unlawful discrimination on the basis of race (African-American) when on August 6, 2005, it terminated her during her probationary period.
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. Consequently, the AJ ordered the Agency to reinstate Complainant; provide her with back pay and other benefits; and, pay Complainant $25,000 in compensatory damages. Additionally, the AJ ordered the Agency to pay Complainant for medical insurance premiums and expenses that were over and above what Complainant would have incurred had she still been an employee of the Agency.
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 on February 6, 2008. In that decision, the Agency awarded Complainant $3,486.14 in pecuniary damages.
On March 3, 2008, Complainant appealed the Agency's February 8, 2008 decision. In a decision dated May 22, 2009, the Commission determined that upon her August 6, 2005 termination, Complainant's health insurance coverage with the Agency was terminated. Chandra Lang v. Department of Veterans Affairs, EEOC Appeal No. 0120081699. The Commission further determined that Complainant was without health insurance from August 6, 2005 until October 31, 2005, when she was hired at a local hospital and obtained health insurance through her new employer. The Commission concluded that Complainant's coverage with the local hospital continued until she was reinstated with the Agency on May 18, 2007.
The Commission found that while Complainant could seek reimbursement of her uninsured medical expenses for a portion of the back pay period while also seeking reimbursement for paid insurance premiums during another portion of her back pay period, she was not entitled to reimbursement of both her uninsured medical costs and her paid health insurance premiums during the same period. Accordingly, the Commission concluded that during the period when Complainant did not have any health insurance coverage, she was entitled to reimbursement of her uninsured medical costs. Additionally, the Commission concluded that during the period when Complainant paid for her own health insurance, she could seek reimbursement for health insurance for the health insurance premiums she paid.
The Commission remanded the matter to the Agency for a supplemental investigation. Specifically, the Commission ordered the Agency to conduct an investigation pertaining to Complainant's entitlement to reimbursement of health care expenses by obtaining evidence from Complainant addressing any uninsured medical expenses she incurred between August 6, 2005 and October 31, 2005, and the premiums paid for coverage from October 31, 2005 until her reinstatement with the Agency. The Commission also ordered the Agency to issue a new final decision regarding the appropriate amount due to Complainant.
On March 16, 2010, the Agency issued a final decision. In that decision, the Agency found that the damages claimed by Complainant were proximately caused by the discriminatory conduct of the Agency. The decision further stated that Complainant was entitled to $10,403.48 in pecuniary losses caused by its discriminatory actions. Specifically, the Agency awarded Complainant $836.08 for uninsured medical expenses incurred from August 6, 2005 until October 31, 2005; and, $9,597.40 for health insurance premiums paid from October 31, 2005 until May 18, 2007, offset by $3,486.14 already awarded to Complainant by the Agency's February 5, 2008 decision. The Agency denied Complainant reimbursement of medical expenses in the amount of $1,065.06 because $268.06 in medical expenses were incurred during a 31-day post-termination period that Complainant had health insurance through the Agency. The Agency further denied $797 in claimed dental expenses on the grounds that Complainant failed to submit any evidence that she had dental insurance.
CONTENTIONS ON APPEAL
On appeal, Complainant states that she does not dispute the Agency's payment of $9,567.40 for insurance premiums. However, Complainant contends that she is entitled to receive more than the $836.08 in health care costs the Agency contends she is entitled to receive. She argues that the Agency should reimburse her for the $286.06 in health care expenses she paid during the 31-day time period (August 6, 2005 through September 6, 2005) after her termination. Complainant also contends that although the Agency noted that she was covered by its insurance for the 31-day period after her termination, the Agency did not inform her that she was covered during this period. Complainant further contends that she should be reimbursed for $797 in expenses incurred for dental and orthodontic services after her termination. In light of the narrow focus of Complainant's arguments on appeal, we restrict our review to Complainant's claim for an additional $1,065.06 in uninsured medical and dental expenses.
ANALYSIS AND FINDINGS
Section 102(a) of the 1991 Civil Rights Act authorizes an award of compensatory damages for
all post-act pecuniary losses, and for non-pecuniary losses, such as, but not limited to, emotional pain, suffering, inconvenience, mental anguish, loss of enjoyment of life, injury to character and reputation, and loss of health. In this regard, the Commission has authority to award such damages in the administrative process. See West v. Gibson, 119 S. Ct. 1906 (1999). Compensatory damages do not include back pay, interest on back pay, or any other type of equitable relief authorized by Title VII. To receive an award of compensatory damages, a Complainant must demonstrate that he has been harmed as a result of the Agency's discriminatory action; the extent, nature and severity of the harm; and the duration or expected duration of the harm. Rivera v. Dep't of the Navy, EEOC Appeal No. 01934157 (July 22, 1994); EEOC's Enforcement Guidance: Compensatory and Punitive Damages Available Under Section 102 of the Civil Rights Act of 1991, EEOC Notice 915.002 at 11-12, 14 (July 14, 1992) ("Guidance"). A Complainant is required to provide objective evidence that will allow an Agency to assess the merits of his request for damages. See Carle v. Dep't of the Navy, EEOC Appeal No. 01922369 (January 5, 1993).
Pecuniary damages are available for out-of-pocket expenses shown to be related to the discriminatory conduct. Typically these damages include reimbursement for medical expenses, job hunting expenses, moving expenses, and other quantitative out-of-pocket expenses. The Commission requires documentation in support of these expenses, typically in the form of receipts, bills, or physicians' statements. See Minardi v. U.S. Postal Service, EEOC Appeal No. 01981955 (October 3, 2000); Gause v. Social Security Administration, EEOC Appeal No. 01972427 (March 8, 2000). Past pecuniary losses are those losses that are likely to occur before resolution of a complaint and future pecuniary losses are losses that are likely to occur after resolution of a complaint. See Guidance at 8.
In this case, Complainant contends that she is entitled to be reimbursed for $268.06 in medical expenses she incurred during a 31-day period after her termination and $797 in dental expenses.
The record reveals that Complainant submitted evidence substantiating her claim that she incurred $1,065.06 in disputed medical and dental costs during the period she was uninsured because of her termination.
With respect to the 31-day period for which Complainant was insured by the Agency but Complainant nonetheless paid $268.06 in out-of-pocket medical expenses, the Agency has provided evidence that Complainant was covered by its medical insurance 31 days after Complainant was terminated. However, Complainant maintains that she did not receive any notice from the Agency that her medical insurance continued up to 31 days after her termination and paid for the expenses out-of-pocket.
We note that, during the investigation, Complainant testified that she had no insurance coverage from the time she was terminated until she was employed by a local hospital. Moreover, there is no evidence that the Agency informed Complainant that her insurance would extend for 31 days after her termination. Consequently, we find Complainant's representations on this matter credible. Under these circumstances, we find it reasonable that Complainant would be unaware that her medical insurance extended beyond her termination, and that she would therefore pay for medical expenses out-of-pocket. Clearly, there is a nexus between the Agency's unlawful discrimination and the $268.06 in out-of-pocket medical expenses Complainant paid during the 31-day post-termination period. Thus, we find that the Agency must pay Complainant $268.06 in medical expenses.
Regarding the $797 Complainant paid in dental expenses between her August 6, 2005 termination and October 31, 2005 reemployment, Complainant maintains that she had supplemental dental insurance though a union before she was terminated. However, during the investigation, Complainant was unable to provide any documentation showing that she had dental insurance before her termination, although the investigator asked her to provide such documentation. When asked by the investigator to specify the percentage of dental services paid by the insurance before her termination, Complainant stated that she could not recall the percentage and did not have any documentation regarding the coverage. Exhibit 3, at p. 51. Complainant maintained that she could provide the dental insurance documentation for the record at a later date, but the record does not reflect that she ever provided such documentation. In contrast, Complainant did provid documentation for the record that reflects that, after her termination, the local hospital provided her with dental insurance.
We note that in our previous decision, we ordered Complainant to submit evidence in support of her claim that she incurred out-of-pocket medical expenses from August 6, 2005 though October 31, 2005. At the very least, Complainant could have provided a check stub, statement from an Agency official, or statement from the insurance company that substantiated her claim that she had dental insurance with the Agency before she was terminated. Consequently, we are not persuaded that Complainant had dental insurance through the Agency before she was terminated. Therefore, her request to be reimbursed for $797 in dental expenses is denied.
CONCLUSION
In summary, Complainant is entitled to be reimbursed for an additional $268.06 in pecuniary damages. Accordingly, the Commission MODIFIES the Agency's March 15, 2010 decision on pecuniary compensatory damages and REMANDS this matter to the Agency to take corrective action in accordance with this decision and the Order herein.
ORDER
Within thirty (30) calendar days after the date this decision become final, the Agency shall:
1. Pay Complainant $268.06 in pecuniary damages.
2. Pay Complainant Attorney's Fees attributable to her appeal of the Agency's denial of $268.00 in medical expenses incurred on August 18, 2005 and August 24, 2005, in accordance with the provision below.
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.
ATTORNEY'S FEES (H0900)
If Complainant has been represented by an attorney (as defined by 29 C.F.R. � 1614.501(e)(1)(iii)), she is entitled to an award of reasonable attorney's fees incurred on the portion of this Complainant on which she prevailed. 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 (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 (T0610)
This decision affirms the Agency's final decision/action in part, but it also requires the Agency to continue its administrative processing of a portion of your complaint. 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 on both that portion of your complaint which the Commission has affirmed and that portion of the complaint which has been remanded for continued administrative processing. 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 your appeal with the Commission, until such time as the Agency issues its final decision on your complaint. 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
___9/7/10_______________
Date
2
0120102100
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120102100