0720100040
11-23-2011
Emma McCormick, Complainant, v. Eric H. Holder, Jr., Attorney General, Department of Justice, (Federal Bureau of Investigation), Agency.
Emma McCormick,
Complainant,
v.
Eric H. Holder, Jr.,
Attorney General,
Department of Justice,
(Federal Bureau of Investigation),
Agency.
Appeal No. 0720100040
Hearing No. 550-2008-00386X
Agency No. F-08-6443
DECISION
In its final order, the Agency accepted, in part, an EEOC Administrative
Judge’s (AJ) finding that the Agency unduly delayed in providing two
accommodations for Complainant’s physical disability, in violation
of Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act),
as amended, 29 U.S.C. § 791 et seq. The Agency rejected, in part,
the AJ’s finding of retaliatory discrimination as well as part of the
relief ordered. On appeal, following its July 6, 2010 final order, the
Agency reiterates its requests that the Commission affirm the rejection of
the AJ’s finding of retaliatory discrimination and part of the relief
ordered. The Commission accepts, pursuant to 29 C.F.R. § 1614.405(a),
the Agency’s appeal. For the following reasons, the Commission AFFIRMS
in part, and REVERSES in part the Agency’s final order.
ISSUES PRESENTED
1. Whether there is substantial evidence in the record to support the
AJ’s finding that the Agency retaliated against Complainant for seeking
reasonable accommodations for her physical disability and for filing an
EEO complaint.
2. Whether the AJ erred in ordering the Agency to accommodate
Complainant’s repetitive strain injury by giving her priority for future
assignments that require minimal computer use, such as interpreting and
oral translation.
3. Whether the AJ erred in awarding Complainant back pay for the period
from August 23, 2007 to November 26, 2007, when her doctor had Complainant
remain off work until the Agency could honor the doctor’s request to
evaluate the ergonomics of Complainant’s workstation.
4. Whether the AJ erred in awarding Complainant $2400 for future medical
consultations with a psychiatrist.
5. Whether the AJ’s award of $200,000 for non-pecuniary compensatory
damages was excessive.
6. Whether the AJ’s award of $117,552.51 in attorney’s fees and
costs should be reduced.
BACKGROUND
Complainant worked as a Language Specialist at the Agency’s San
Francisco Division in California. According to the position description,
a language specialist’s major duties include:
• Translating (written translation) and interpreting (oral translation)
foreign languages into English from recorded or written material.
• Translating from English into foreign languages as required.
• Informing investigators about facets of a foreign language, including
history, culture, and mores.
• Assisting new agent trainees with dialects, idioms, and
colloquialisms.
• Interpreting during interviews or interrogations for investigative
personnel.
• Interpreting during polygraph examinations.
Through repetitive use of a keyboard and mouse, Complainant developed
repetitive strain injury to her right shoulder, myofascial pain of the
shoulder, rotator cuff syndrome, and right shoulder and upper back pain.
Her doctors requested two primary accommodations: (1) an ergonomic
evaluation and modification of her workstation; and (2) installation of
voice recognition software on her computer.
Complainant’s first and second-level supervisors attempted to provide
alternative accommodations during the interim, but they were not effective
and exacerbated her physical condition. The working relationship between
Complainant and her supervisors suffered, with her supervisors expressing
their concerns to others.
By February 25, 2008, the supervisors still had not provided Complainant
with her two primary requested accommodations, so she filed an EEO
complaint, alleging discrimination on the bases of physical disability
and reprisal for prior protected EEO activity when:
1. the Agency denied her reasonable accommodation since August 2007.
After the Agency conducted its investigation, an AJ held hearings
on liability and damages. The AJ issued a decision on May 25, 2010,
finding discrimination on the bases alleged.
AJ’s Decision
The AJ found Complainant to be a credible witness because she recalled
events in great detail, did not exaggerate her claims, and gave internally
consistent testimony that was corroborated by other credible witnesses.
In contrast, the AJ found the first and second-level supervisors to
lack credibility.
a. Reasonable Accommodation Claim
The AJ determined that Complainant’s first and second-level supervisors
failed to provide reasonable accommodation because they unduly delayed
in acting on and securing the two primary accommodations requested
by Complainant’s doctors. For the ergonomic modifications to the
workstation, the AJ found that Complainant’s doctor requested an
ergonomic evaluation on August 9, 2007, but the actual modifications
were not made until August 1, 2008, nearly a year later. For the
voice recognition software, the AJ found that the doctor requested the
software in November 2007, but Complainant did not begin training for
the software until April 2009. What accommodations the supervisors did
provide in the interim were not effective, according to the AJ, because
they significantly exacerbated Complainant’s physical condition and
caused her pain.
Furthermore, the AJ found that the Agency could not justify the
delays by claiming that (1) it lacked protocols for dealing with an
accommodation request; (2) the supervisors were confused about what their
responsibilities were; and (3) the supervisors had security concerns
over installing new software and allowing outsiders to come in to modify
Complainant’s workstation.
b. Retaliation Claim
The AJ found that the first and second-level supervisors retaliated
against Complainant for engaging in the protected activities of requesting
reasonable accommodation and filing an EEO complaint. The AJ found that
the first and second-level supervisors began subjecting Complainant to
adverse actions after Complainant requested reasonable accommodation
and informed them that the interim accommodations were not effective.
In particular, the AJ found that the supervisors:
• threatened to place her on absence without leave;
o The AJ found that on August 22, 2007, the first-level supervisor
assigned Complainant to perform Title III live wire-tap translation duties
(which required constant typing), despite Complainant’s pleas that
she could not do such work because of continuing pain. The next day,
Complainant called her supervisor, telling him she could not report
to work to perform the Title III wire-tap translations. In response,
he told her to come into work, and implied that if she did not arrive
by 9:00 a.m., he would place her on absence without leave.1
• characterized Complainant as a problematic employee to superiors,
and disparaged her work ethic and inability to take direction;
o The AJ found that Complainant disputed her performance appraisal,
and raised her concerns to the second-level supervisor in November 2007.
The second-level supervisor then emailed the regional program manager:
“The danger I can clearly see here is a potential for [Complainant] to
file an EEO complaint . . .” about the appraisal and the first-level
supervisor’s alleged threatening comments during the discussion.
The second-level supervisor characterized Complainant’s complaints
as “absurd.”
o The AJ found that the first-level supervisor interrupted Complainant
while she tried to explain that she could not complete an assignment
because the tape recording equipment she was using was aggravating her
shoulder and neck conditions. The first-level supervisor told her in a
loud voice, “Stop right there,” and stated if she was not going to
do her work, she should pack up her things and go home.
o The AJ found that the Acting Special Agent in Charge had authorized
Complainant to attend a language section advisory committee meeting.
To prepare for this meeting, Complainant went into the office for a few
days in September 2007. Her appearance at the office raised the attention
of Complainant’s second-level supervisor, who thought she was off work
full time. Instead of asking Complainant why she was in the office, the
second-level supervisor had the first-level supervisor and others “keep
track of times and days” when they saw Complainant in the office.
o The AJ found that the second-level supervisor had informed headquarters
that Complainant was a “major problem” because management was trying
to find work and Complainant did not want to do it. But the second-level
supervisor neglected to mention to headquarters that management had not
yet provided Complainant with the reasonable accommodations she needed:
the ergonomic evaluation and modifications and the voice recognition
software.
o The AJ found that on January 10, 2008, the second-level supervisor
wrote: “I sense [Complainant] is a ticking time bomb and we’ll all
have problems once the bomb explodes.”
o The AJ found that the first-level supervisor had complained to the
second-level supervisor that Complainant was costing too much in terms
of distracting those around her and impacting on management time.
• asked an administrative officer to become involved in presenting
Complainant with a letter and possible three-day suspension on January
18, 2008;
• defied headquarters’ instructions to open the voice recognition
software package that was placed on Complainant’s desk and addressed
to her while she was off work.
o The AJ found that headquarters had instructed the first-level supervisor
to open the box containing the voice recognition software, but the
first-level supervisor did not follow those instructions “because
of where this matter seemed to be going . . .” The AJ found the
phrase “this matter” to refer to Complainant’s EEO complaint,
which management had learned about the previous month.
o The AJ found that the second-level supervisor took no action to
install the software, and instead wrote in a June 27, 2008 email to
headquarters: “In short, a very complicated and rather unpleasant
matter. [Complainant] is very difficult to please and unwilling to
work with us to help resolve her issues. She is very impatient and in
general has a negative attitude . . . .” The second-level supervisor
neglected to mention to headquarters that Complainant was still waiting
for the Agency to make ergonomic modifications to her workstation and
to install the voice recognition software that remained unopened on
Complainant’s desk.
The AJ determined that Complainant established a prima facie case of
retaliatory discrimination because she had engaged in protected activity;
the first and second-level supervisors were aware of those activities;
and there existed a close temporal proximity between her protected
activities and the adverse actions.
Next, the AJ found that the supervisors’ articulated reasons
(management’s comments were made out of frustration at the process,
unfamiliarity with workers’ compensation and reasonable accommodation
procedures, and a misunderstanding of what kind of work Complainant had
been cleared to perform; management feared the consequences of opening
a package that was specifically addressed to Complainant), were not
credible and were pretexts for hiding a retaliatory motive.
c. Relief
For injunctive relief, the AJ ordered the Agency to continue providing
appropriate reasonable accommodations, including (a) functioning
voice recognition software and training, (b) an ergonomically correct
workstation, (c) “priority appointment to assignments requiring minimal
computer use such as interpreting and oral translation assignments at
training sessions and conferences.”
For back pay and benefits, the AJ found that Complainant was entitled
to back pay with interest and benefits for the periods:
• August 23, 2007 to November 26, 2007;
• February 1, 2008 to September 5, 2008; and
• September 5, 2008 until Complainant resumes full-time work.
For the August 23, 2007 to November 26, 2007 period, the AJ found that
Complainant’s doctor took her off work because the Agency had failed
to provide effective accommodations, and instead assigned her work that
significantly aggravated her medical condition.
For past pecuniary compensatory damages, the AJ found that Complainant
presented evidence documenting the cost of treatment by a counselor
and a psychologist for the distress she suffered for trying to perform
assignments that caused her significant physical pain and to secure
two accommodations. The AJ found that Complainant had paid $2790.00
to the counselor and $3380.00 to the psychologist. The AJ determined
that the Agency should reimburse Complainant for those medical expenses,
totaling $6170.00.
For future pecuniary compensatory damages, the AJ awarded Complainant
a total of $11,040.00: $8640.00 for future expenses for psychological
treatment and $2400.00 for future psychiatric treatment.
For non-pecuniary compensatory damages, the AJ awarded $200,000.00
because the Agency engaged in egregious, substantial discriminatory
and retaliatory conduct that resulted in Complainant suffering from
significant physical and psychological pain; loss of enjoyment of life
from August 2007 to the present; changes in her demeanor, outlook, and
physical and mental conditions that imperiled her marriage and ability
to properly care for her young child.
Finally, the AJ awarded $112,613.79 for attorney’s fees and costs.
Agency’s Final Order
The Agency accepted the AJ’s finding that it unduly delayed in providing
reasonable accommodation to Complainant, but it did not accept the AJ’s
finding of discriminatory retaliation. The Agency also did not accept
the AJ’s orders to (1) give priority to Complainant for assignments
requiring minimal computer use such as interpreting and oral translation
(2) pay backpay for the full period from August 23, 2007 to November 26,
2007; (3) pay $2400.00 for future medical sessions with a psychiatrist;
(4) pay $200,000.00 in non-pecuniary compensatory damages; and (5)
pay $117,552.21 in attorney’s fees and costs.
CONTENTIONS ON APPEAL
Retaliation
On appeal, the Agency contends that there was no substantial evidence to
support the AJ’s finding that Complainant’s first and second-level
supervisors were motivated by retaliatory animus. The Agency argues
that the first and second-level supervisors, hobbled by their lack of
knowledge and experience with workers’ compensation and reasonable
accommodation issues, tried to be proactive in responding to the needs
of Complainant, instead of retaliating against her. Whatever comments
or actions they took or did not take was motivated by their frustrations
with the process, rather than any retaliatory animus against Complainant.
Priority for Assignments Requiring Minimal Computer Use
The Agency contends that the AJ’s order to give Complainant “priority
appointment to assignments requiring minimal computer use such as
interpreting and oral translation assignments at training sessions
and conferences” would impose an undue hardship. Specifically,
the order would require the Agency to ignore its policies for employee
advancement to supervisory positions, reassign Complainant’s work to
other linguists, and possibly subject Complainant to additional pain
and aggravation if she had to travel for interpreting assignments.
Back Pay for August 23, 2007 to November 26, 2007
The Agency maintains that Complainant is only entitled to back pay for
the period from October 9, 2007 to November 26, 2007. According to
the Agency, her doctor removed her from work because of the lack of an
ergonomic evaluation. The Agency estimates that the earliest it could
have reasonably completed an ergonomic evaluation and modification to
the workstation was October 9, 2007, after which time Complainant could
have returned to work.
Future Psychiatric Medical Consultation
The Agency maintains that there was no substantial evidence to support the
AJ’s award of costs for future psychiatric medical treatment because
the AJ relied solely on the testimony of Complainant’s psychologist,
rather than her psychiatrist.
Non-pecuniary Compensatory Damages
The Agency argues that the Commission should reduce the AJ’s award
of $200,000.00 in non-pecuniary compensatory damages to $60,000.00.
The Agency argues that the AJ disregarded the many efforts by management
to accommodate Complainant during the interim period while she was
waiting for her two primary accommodations. Although their attempts
were inadequate, management comported with the recommendations of
Complainant’s physicians, and she eventually received the accommodations
she requested. The Agency also attempts to distinguish the comparable
cases the AJ relied on to support her award, and references cases that
it believes offer better comparisons.
Attorney’s Fees
The Agency argues that the Commission should reduce attorney’s fees
by 25% for the portion attributable to the retaliation claim. In other
words, the Commission should award only $94,042.00 in attorney’s fees.
ANALYSIS AND FINDINGS
Standard of Review
Under 29 C.F.R. § 1614.405(a), the Commission will uphold all
post-hearing factual findings by an AJ if supported by substantial
evidence in the record. Substantial evidence is “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). The Commission reviews de
novo an AJ's conclusions of law, whether or not a hearing was held.
We accept an AJ’s credibility determination based on the demeanor
of a witness or on the tone of voice of a witness, 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).
Retaliation Claim
To establish a prima facie case of reprisal, Complainant must show that:
(1) she engaged in prior protected activity; (2) the Agency was aware of
the protected activity; (3) she was subsequently subjected to adverse
treatment by the Agency; and (4) a nexus exists between the protected
activity and the adverse treatment. McMillen v. U.S. Postal Serv.,
EEOC Appeal No. 0120072556 (Feb. 26, 2009); Whitmire v. Dep’t of the
Air Force, EEOC Appeal No. 01A00340 (Sept. 25, 2000).
An initial inference of retaliation arises where there is proof that
the protected activity and the adverse action were related. EEOC
Compliance Manual Section 8: “Retaliation,” No. 915.003, at 8-18
(May 20, 1998). Typically, the link is demonstrated by evidence that:
(1) the adverse action occurred shortly after the protected activity,
and (2) the person who undertook the adverse action was aware of the
complainant’s protected activity before taking the action. Id.
Once an employee has established a prima facie case, the Agency has the
burden of “producing evidence” that an adverse employment action was
taken “for a legitimate, non-discriminatory reason.” St. Mary's Honor
Center v. Hicks, 509 U.S. 502, 506-507 (1993) (quoting Texas Department
of Community Affairs v. Burdine, 450 U.S. 248, 254 (1981)).
When the Agency produces evidence of a legitimate, non-retaliatory
reason for a challenged action, a violation will still be found if this
explanation is a pretext designed to hide the true retaliatory motive.
EEOC Compliance Manual Section 8: “Retaliation,” No. 915.003, at 8-19
(May 20, 1998).
On appeal, the Agency invites the Commission to view the supervisors’
emails in a more sympathetic, non-retaliatory light, but this is not
enough for the Commission to set aside the AJ’s determination that
the supervisors lacked credibility.
Upon review, the Commission finds that there is substantial evidence in
the record to support the AJ’s finding of retaliatory discrimination.
Such evidence includes a stream of emails beginning on January 18, 2008,
which show that the supervisors became involved in efforts to bring
about, and ultimately implement, a strategy to discipline Complainant
for insubordination because she had continued to request for effective
accommodations.
In those emails, Complainant’s supervisors initially characterized
Complainant as an employee who deliberately refused to work, even though
management provided her with interim accommodations, when in reality,
she was unable to perform duties because of a lack of reasonable
accommodation.
• On January 18, 2008, the first-level supervisor wrote to the
second-level supervisor: “[Complainant] needs to go home and stay home
until she’s ready to work. She’s costing us too much in terms of
distracting those around her and impacting on management time.”
• Then, the second-level supervisor conferred with the Agency’s
supervisor for workers’ compensation, who suggested getting the Division
Administrative Officer involved to possibly suspend Complainant for
three days.
o The second-level supervisor then emailed superiors and colleagues
at headquarters:
• [This office] has been accommodating [Complainant’s] physician’s
orders since August 2007. She was out for an extended period of time
and on limited duty since she came back. When she came back we modified
her duties . . . .
When we initially presented her with the assignments she took them
but as later described by her supervisor returned them unfinished and
refused to accept more or finish the ones she started. She said it was
too difficult to record translations on tape. She also doesn’t want
to sit at her workstation because according to her “her physician
doesn’t want her to[.]”
I have contacted our [administrative officer] on several occasions.
He is aware of the situation. . . . We tried everything and [Complainant]
refuses to cooperate. . . .
[Complainant] refuses to do work of a GS-12 Language Analyst as per
position description. We can’t [quality control] her work product
because it is non-existent and I am not sure how we should handle her 2008
[performance evaluation].
• “[Complainant] refuses to do the work as described in her position
description even though we make reasonable accommodations for her.”
• “At this point the Foreign Language Program is unable to accommodate
[Complainant] because she refuses to do the work of a GS-12 Language
Analyst.”
• “And in the meantime [Complainant] is at work . . . Doing absolutely
nothing that is work related in any way. As you know she sits in the
Club . . . . And her behavior does ‘wonders’ for the linguist morale
in this office.”
Such a negative impression from Complainant’s supervisors ultimately
led headquarters to view this issue as a performance problem, involving
possible insubordination on the part of Complainant. Therefore, the
record indicates that headquarters devised a disciplinary strategy.
For example, on January 23, 2008, headquarters wrote to the first and
second-level supervisors:
Based on your e-mails which described your past dealings
with [Complainant], it appears to everyone here that this is
a “performance-related” issue and should be dealt with as
such. . . . It is our understanding that there are no restrictions on
her use of a tape recorder. Unless [Complainant’s] doctor restricts
her from using a tape recorder, this is the only means we have at this
time to accommodate her situation and for her to perform the duty for
which the FBI hired her. [The first-line supervisor] should give her
an assignment . . . using the tape recorder. If she does not complete
her assignment within the deadline, then it is a performance issue and
it should be documented. If she refuses to accept such an assignment,
then [the first-line supervisor] should tell her that “she has been
given a lawful order” and ask if “she intends to abide by that lawful
order.” If she refuses, then it [sic] is insubordination and should
be written up and referred to Internal Investigations Section . . . to
open a disciplinary investigation.
The supervisors carried out headquarters’ disciplinary strategy.
The second-level supervisor asked others to document their exchanges
with Complainant. For example, the second-level supervisor emailed the
first-level supervisor:
At this time the case is treated as an issue of possible disciplinary
action for insubordination. As [Complainant’s direct line supervisor],
you need to document any exchange that takes place between you and
[Complainant]. We are required to assign work to her that is in
compliance with her physician’s orders. . . . The tape recorder is
fine in this case.
The Commission finds that the supervisors’ involvement in efforts
to bring about, and ultimately implement, a strategy to discipline
Complainant for insubordination because she had continued to request
for effective accommodations, constitutes an adverse action that would
reasonably likely deter Complainant and other employees from engaging
in protected activity.2 Furthermore, the Commission finds that such
emails could lead a reasonable mind to conclude that the supervisors,
more likely than not, sought to discipline Complainant as retaliation
for complaining about the ineffective accommodations provided by the
supervisors. Therefore, we find that the record contains substantial
evidence to support the AJ’s finding of retaliatory discrimination.3
Priority Appointment for Assignments Requiring Minimal Computer Use
Upon review, we find that the AJ did not err in ordering the Agency to
accommodate Complainant, in part, by giving her “priority appointment
to assignments requiring minimal computer use such as interpreting and
oral translation assignments at training sessions and conferences.”
The major duties of a Language Specialist, according to the position
description, include written translations and oral translations
(interpreting). The record indicates that this field office used
different methods for allocating written translation assignments and
oral translation assignments. The Agency assigned language specialists
to specific written translation assignments but solicited volunteers to
take on oral translation assignments. The AJ found that Complainant’s
supervisors eventually stopped considering Complainant for interpreting
assignments while allowing others to receive training and go on these
assignments.
Given that the Agency stopped considering Complainant’s requests for
oral translation assignments, we find it reasonable for the AJ to order
the Agency to consider Complainant for voluntary assignments that do
not require her to use the computer as often. The AJ did not order
the Agency to ensure that Complainant get every voluntary assignment,
to the detriment of others. The AJ merely ordered the Agency to resume
considering Complainant for these opportunities when they arise, given
her disability and need to perform less computer work.
Back Pay for August 23, 2007 to November 26, 2007
The AJ found that on August 22, 2007, the first-level supervisor assigned
Complainant to perform Title III live wire-tap translation duties
(which required constant typing), despite Complainant’s pleas that
she could not do such work because of continuing pain. The next day,
Complainant called her supervisor, telling him she could not report
to work to perform the Title III wire-tap translations. In response,
he told her to come into work, and implied that if she did not arrive
by 9:00 a.m., he would place her on absence without leave.
Complainant did not come into work that day, and instead saw her doctor,
who removed her from work until the Agency could finish evaluating the
ergonomics of her workstation. The first-level supervisor did not end up
charging Complainant with being absent without leave because Complainant
met with the Acting Special Agent in Charge, who assured her that her
leave would be approved.
For the time that Complainant was absent from work from August 23, 2007
to November 26, 2007, the AJ found that Complainant’s doctor took her
off work because the Agency had assigned her work that significantly
aggravated her medical condition and failed to provide effective
accommodations. The AJ awarded back pay for this period of absence.
On appeal, the Agency argues it should not have to pay Complainant back
pay for her absence from August 23, 2007 to October 9, 2007. The Agency
characterizes Complainant’s absence from work as a voluntary choice
to leave, because her supervisor had assigned her work that technically
complied with her medical restrictions (despite the fact that the work was
causing her physical pain). The Agency also argues that the Agency could
not have finished modifying her workstation to allow her to return to work
until October 9, 2007. Specifically, “a conservative estimate of the
time necessary for conducting an ergonomic evaluation and implementing
the necessary modifications to her workstation . . . would have been
two months. This would have resulted in complainant’s workstation
being ergonomically modified by October 9, 2007.”
The purpose of a back pay award is to restore Complainant the income she
would have otherwise earned but for the discrimination. See Albemarle
Paper Co. v. Moody, 442 U.S. 405, 418-19 (1975); Davis v. U.S. Postal
Serv., EEOC Petition No. 04900010 (Nov. 29, 1990). A back pay claimant
generally has a duty to mitigate damages. But the Agency has the burden
to establish, by a preponderance of the evidence that a complainant
has failed to mitigate her damages. See 29 C.F.R. § 1614.501(d);
McNeil v. U.S. Postal Serv., EEOC Request No. 05960436 (Dec. 9, 1999).
The Commission recognizes that precise measurement cannot always be used
to remedy the wrong inflicted, and therefore, the computation of back pay
awards inherently involves some speculation. Hanns v. U.S. Postal Serv.,
EEOC Petition No. 04960030 (Sept. 18, 1997). However, uncertainties
involved in a back pay determination should be resolved against the Agency
which has already been found to have committed the acts of discrimination.
Id.; see also Klook v. U.S. Postal Serv, EEOC Petition No. 04A40012
(June 16, 2004).
Upon review, we find that the Agency did not meet its burden in providing
a clear statement of the formulas and methods used to determine that,
had it properly processed Complainant’s request to modify the ergonomics
of her workstation, it would have provided that accommodation no earlier
than October 9, 2007. The Agency’s appellate brief merely references
the “conservative estimate” offered by its Complaint Adjudication
Office, with no mention of how it arrived at such an assessment.
We elect to resolve the uncertainties against the Agency in how quickly
it could have modified the workstation, since the Agency was found to
have unduly delayed in providing the accommodation in the first place.
And given that the AJ also characterized the supervisor’s actions on
August 23, 2007 as retaliatory (he threatened to place Complainant on
absence without leave after she protested doing assignments that caused
her physical pain), we find no reason to disturb the AJ’s award of
back pay for the period of August 23, 2007 to November 26, 2007.
Future Psychiatric Medical Consultation
In awarding $2400.00 for future psychiatric medical treatment, the AJ
relied on the testimony of Complainant’s psychologist, who works in
conjunction with Complainant’s psychiatrist. The psychologist testified
that Complainant sees the psychiatrist six times per year, at a cost
of $200.00 per session. The psychologist estimated that Complainant
would need an additional two years of treatment from the psychiatrist,
hence the $2400.00 estimate for future psychiatric costs.
The Agency argues that the psychologist’s testimony does not
constitute substantial evidence to support such an award because he is
not the psychiatrist who will be administering the treatment at issue.
We disagree. We find that the psychologist’s personal knowledge of
Complainant’s mental condition and ongoing treatment in conjunction
with the psychiatrist, is sufficient to support the AJ’s award of
$2400.00 for future psychiatric treatment.
Award of $200,000.00 in Non-pecuniary Compensatory Damages
Here, the AJ awarded $200,000.00 in non-pecuniary compensatory damages
because the Agency engaged in egregious, substantial discriminatory
and retaliatory conduct that increased the physical pain and damage
to Complainant’s neck and shoulder, and caused her to suffer severe
depression. Furthermore, the negative memorandums circulated about
Complainant caused her emotional distress in that she feared the Agency
was trying to fire her rather than accommodate and help her. According to
her doctor, the emotional distress led to permanent spasms that further
damage the discs in her back. Today she suffers from migraines, lack
of sleep, and severe and chronic pain.
The AJ found that the discriminatory conduct also led to a loss of
enjoyment of life from August 2007 to the present; changes in her
demeanor, outlook, and physical and mental conditions that imperiled
her marriage, hindered her ability to properly care for her young child;
created a serious and potentially permanent rift with a child in college.
Non-pecuniary losses are losses that are not subject to precise
quantification, i.e., emotional pain, suffering, inconvenience, mental
anguish, loss of enjoyment of life, injury to professional standing,
injury to character and reputation, injury to credit standing, and loss
of health. See EEOC Notice No. 915.002 at 10 (July 14, 1992).
After establishing entitlement to an award of compensatory damages,
there is no precise formula for determining the amount of damages for
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. See Loving v. Dep’t of the Treasury, EEOC Appeal No. 01955789
(Aug. 29, 1997). It should likewise be consistent with amounts awarded
in similar cases. See Hogeland v. Dep’t of Agriculture, EEOC Appeal
No. 01976440 (June 14, 1999). Moreover, we point out that non-pecuniary
compensatory damages are designed to remedy a harm and not to punish the
Agency for its discriminatory actions. Furthermore, compensatory damages
should not be motivated by passion or prejudice or be “‘monstrously
excessive” standing alone but should be consistent with the amounts
awarded in similar cases. See Ward-Jenkins v. Dep’t of the Interior,
EEOC Appeal No. 01961483 (March 4, 1999)
The Agency argues that the Commission should reduce the AJ’s award
of non-pecuniary compensatory damages to $60,000.00 because it did not
engage in egregious, substantial discriminatory and retaliatory conduct.
Rather, management made efforts to accommodate Complainant during the
interim period while she was waiting for her two primary accommodations.
Although their attempts were inadequate, management comported with
the recommendations of Complainant’s physicians, and she eventually
received the accommodations she requested.
Upon review of the record and Commission precedent, we find that the
AJ did not err in awarding Complainant $200,000.00 in non-pecuniary
compensatory damages. We find that the AJ properly rejected the
Agency’s characterization of management’s actions as good faith,
but inept attempts to help Complainant. Here, management initially
attempted to assign Complainant tasks that further injured her and caused
tremendous pain, without engaging in any serious efforts to quickly
secure the accommodations that would actually help her do her job.
When she alerted management that she could not perform such tasks
because of the pain, management threatened her with absence without
leave and sent her home, without any sense of urgency to quickly secure
her two primary accommodations so she could return to work. Moreover,
management consistently emailed their superiors, unfairly characterizing
Complainant’s actions as “refusals” to work, which led headquarters
to view this as an insubordination issue, warranting possible discipline.
Here, there is substantial evidence in the testimony of Complainant’s
doctors, family, friends, and Complainant herself, about the physical
and mental harm Complainant has endured. Complainant has suffered severe
physical damage and pain to her neck and shoulders, as well as permanent
spasms that have damaged the discs in her back. Her professional
reputation was damaged by the portrayals as an insubordinate employee
who refuses to do assignments. She has suffered from severe migraines,
lack of sleep, and serious strains on her relationships with her family.
She has withdrawn socially from friendships.
We determine that the AJ’s award is consistent with amounts awarded
in similar cases. See, e.g., Brown-Fleming v. Dep’t of Justice,
EEOC Appeal No. 0120082667 (Oct. 28, 2010) (awarding $150,000 in
non-pecuniary damages for a complainant who suffered from depression,
anxiety, stress, insomnia, difficulty concentrating, disassociation,
crying spells, social isolation, damage to her professional reputation,
withdrawal from relationships, short-term memory loss, nightmares, panic,
worsening abdominal pain, worsening hypertension, dramatic weight-loss,
and worsening psoriasis brought on by stress); Franklin v. U.S. Postal
Serv., EEOC Appeal No. 07A00025 (Jan. 19, 2001) (awarding $150,000 in
non-pecuniary damages for a complainant who experienced extensive symptoms
of emotional distress, resulting in changes in complainant's personality,
the ending of his marriage, severe strains in his relationships with
those close to him, including his children, and diminished enjoyment of
life); Blount v. Dep’t of Homeland Security, EEOC Appeal No. 0720070010
(Oct. 21, 2009) (awarding $200,000.00 in non-pecuniary damages for a
complainant who suffered from severe depression, an inability to work,
and difficulty in meeting child and spousal support obligations).
Attorney’s Fees
The Agency argues that the Commission should reduce attorney’s fees by
25% for the portion attributable to the retaliation claim. But because
we have ultimately upheld the AJ’s findings of discrimination on the
bases of disability and reprisal, the Commission will not disturb the
AJ’s award of $112,613.79 for attorney’s fees and costs.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal,
including those not specifically addressed herein, we uphold the AJ’s
decision in its entirety. This means we AFFIRM in part, the Agency’s
final order with respect to its finding that it failed to timely provide
Complainant with reasonable accommodations, as well as its acceptance of
the relief ordered by the AJ. We REVERSE in part the Agency’s final
order with respect to its rejection of the AJ’s finding of retaliatory
discrimination, and certain aspects of the relief ordered.
ORDER
1. The Agency shall continue to provide Complainant with the following
reasonable accommodations: (a) functioning voice recognition software
that meets Complainant's current and future needs, software updates
and modifications as needed, and dedicated training on all updates and
changes to the software necessary to permit the complainant to make
full use of the software; (b) an ergonomically correct work station for
Complainant's current and future needs; and (c) priority consideration
for appointment to assignments requiring minimal computer use, such as
interpreting and oral translation assignments at training sessions and
conferences offer complainant reinstatement to his position at the agency,
or to a substantially equivalent position.
2. Within 60 calendar days after the date this decision becomes final,
the Agency shall determine the appropriate amount of back pay, with
interest, and other benefits due Complainant for the periods August 23,
2007 to November 26, 2007; February 1, 2008 to September 5, 2008; and
September 5, 2008 until Complainant resumes full-time work, pursuant to
29 C.F.R. §1614.501. Complainant shall cooperate in the Agency's efforts
to 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 sixty (60)
calendar 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 for clarification or enforcement
must be filed with the Compliance Officer, at the address referenced in
the statement entitled “Implementation of the Commission's Decision.”
3. Within 60 calendar days after the date this decision becomes final,
the Agency shall pay Complainant $17,210.00 in past and future pecuniary
compensatory damages.
4. Within 60 calendar days after the date this decision becomes final,
the Agency shall pay Complainant $200,000.00 in non-pecuniary compensatory
damages.
5. Within 60 calendar days after the date this decision becomes final, the
Agency shall pay Complainant $112,613.79 for attorney’s fees and costs.
6. Within 60 days after the date this decision becomes final, the Agency
shall provide training to the responsible management officials at the
San Francisco Division of the FBI regarding their obligations under
the Rehabilitation Act, with special emphasis on providing reasonable
accommodations and engaging in the interactive process. If the officials
are no longer employees of the Agency, then the Agency shall furnish
documentation of their departure dates.
7. Within 30 days after the date this decision becomes final, the
Agency shall consider taking appropriate disciplinary action against
all responsible management officials still employed by the Agency.
The Commission does not consider training to be disciplinary action.
The Agency shall report its decision to the Compliance Officer. 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. If any
of the responsible management officials have left the Agency's employment,
the Agency shall furnish documentation of their departure date(s).
The Agency shall provide a report of its compliance with paragraphs 1 to
7 of this Order to the Compliance Officer, as provided in the statement
titled “Implementation of the Commission's Decision.” The report
shall include supporting documentation of the Agency's calculation of
backpay and other benefits due Complainant, including evidence that
the corrective actions have been implemented. Copies must be sent
to Complainant.
POSTING ORDER (G0610)
The Agency is ordered to post at the San Francisco Division of the FBI in
San Francisco, CA 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 (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
___11/23/11_______________
Date
1 That day, Complainant saw her doctor, who removed her from work until
the Agency could finish evaluating the ergonomics of her workstation.
The first-level supervisor did not end up charging her with being absent
without leave because Complainant met with the Acting Special Agent in
Charge, who assured her that her leave would be approved.
2 Adverse actions need not qualify as ultimate employment actions or
materially affect the terms or conditions of employment to constitute
retaliation. Any adverse treatment that is reasonably likely to deter
protected activity by Complainant or other employees can be an adverse
action. EEOC Compliance Manual Section 8: “Retaliation,” No. 915.003,
at 8-13, 8-14 (May 20, 1998).
3 The Commission need not address every factual dispute raised by the
Agency in its appellate brief. Suffice it to say, the record contains
numerous emails in which Complainant’s supervisors talked about
Complainant’s reasonable accommodation requests and EEO activities,
and expressed their skepticism and incredulity about Complainant’s
demands and actions. We find such emails, among other relevant evidence
in the record, to constitute substantial evidence to support the AJ’s
finding that the supervisors, more likely than not, were motivated by
retaliatory animus.
For example, after Complainant protested her performance evaluation to
the second-level supervisor, the second-level supervisor wrote in an
November 28, 2007 email:
The danger I can clearly see here is a potential for her to file an EEO
complaint . . . . She has absolutely no basis for claiming what she does.
At the same time I don’t see how we can prevent an employee from filing
any complaint they wish.
So far . . . I haven’t observed [the first-level supervisor] behave
“unethically” at work or heard him make threatening statements
to employees. This is absurd.
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0720100040
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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