0120065134
03-24-2009
Evelyn L. Orosz, Complainant, v. Mary E. Peters, Secretary, Department of Transportation, Agency.
Evelyn L. Orosz,
Complainant,
v.
Mary E. Peters,
Secretary,
Department of Transportation,
Agency.
Appeal No. 0120065134
Agency Nos. 94-54-0260, 94-54-0132
DECISION
On September 9, 2006, complainant timely initiated an appeal from the
Department of Transportation's (Transportation) final agency decision
dated August 8, 2006 regarding complainant's entitlement to future
pecuniary damages. The appeal is deemed timely and is accepted pursuant
to 29 C.F.R. � 1614.405(a). For the following reasons, the Commission
MODIFIES Transportation's final decision.
BACKGROUND
The record reflects that complainant was employed by the Department
of Commerce (Commerce) as a Computer Specialist, GS-9, with Commerce's
National Oceanic and Atmospheric Administration, Office of Aeronautical
Charting & Cartography in Silver Spring, Maryland. In 1992, complainant
became eligible, and was recommended for, a career ladder promotion
to the GS-11 level. Complainant's supervisor informed her that she
would be required to accept rotating assignments at three facilities
located in Rockville, Maryland; Riverdale, Maryland; and Washington,
D.C. in order to obtain the GS-11 position. Thereafter, as a reasonable
accommodation for her disability, complainant requested a promotion
to the GS-11 position without having to do the rotating assignments.
Complainant contended that she was unable to do the rotating assignments
because her physical disability prevented her from traveling to the
rotation sites.1 Complainant's request was denied.
In June and December 1994, complainant filed two formal complaints that
were consolidated for investigation alleging, in pertinent part, that
she was discriminated against based on her disability (lower back and
disc injury) in violation of Section 501 of the Rehabilitation Act of
1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq., when, on
January 12, 1994, her supervisor failed to provide her with a reasonable
accommodation.2 On October 17, 1996, Commerce issued a decision finding
no discrimination. Complainant appealed Commerce's decision.
In February 1997, while complainant's appeal was pending before the
Commission, Commerce informed her that she was being rotated/reassigned
to the Riverdale, Maryland facility due to staffing and mission needs.
Complainant contested Commerce's decision, arguing that she was
unable to comply with the reassignment because she was unable to take
public transportation or drive an automobile to Riverdale due to her
physical disability. Complainant requested that Commerce allow her
to stay in Silver Spring, Maryland as a reasonable accommodation.
After complainant's request was denied, she refused to report to the
Riverdale, Maryland facility. On August 21, 1997, complainant was
issued a proposed notice of removal for failure to perform the full
range of her duties and her "mental inability to report to work."
Complainant was terminated effective October 31, 1997. On February 19,
1998, complainant's request for disability retirement was approved by
the Office of Personnel Management.
On April 5, 2000, also while complainant's appeal with the Commission
was pending, a statute was enacted transferring complainant's office
and job functions from Commerce to Transportation effective October 1,
2000. 114 Stat. 61, Sections 601, 602, and 604. Following enactment
of the statute, complainant's case was transferred from Commerce to
Transportation in June 2000. Neither Commerce nor Transportation
informed the Commission that Transportation had assumed responsibility
over complainant's case at that time.
In Fall 2000, the Commission issued a decision reversing Commerce's
final decision. The Commission found that complainant was a qualified
individual with a disability and that Commerce discriminated against
complainant based on her disability when it failed to provide her
with a reasonable accommodation with respect to the GS-11 promotion.
Orosz v. Department of Commerce, EEOC Appeal No. 01970955 (October
20, 2000). The Commission ordered Commerce to offer complainant a
retroactive promotion to the GS-11 Computer Specialist position, or a
substantially similar position with any necessary accommodations. Id.
Commerce was also ordered to provide complainant with back pay, interest,
and benefits from January 12, 1994 until complainant accepted or rejected
the promotion. Id. The Commission ordered Commerce to post a notice,
provide training on the Rehabilitation Act to the responsible agency
officials, and offer a temporary or conditional restoration of the
complainant to duty status in the GS-11 position as interim relief
in the event that Commerce filed a request for reconsideration. Id.
With respect to damages, the Commission ordered Commerce to conduct
a supplemental investigation regarding complainant's entitlement to
compensatory damages and award attorney's fees. Id.
In November 2000, although Commerce had already transferred complainant's
case to Transportation, Commerce conditionally offered complainant
instatement to the position of Computer Specialist, GS-11, pending
the outcome of its request for reconsideration. Complainant declined
the offer on December 11, 2000, citing health reasons. The Commission
denied Commerce's request for reconsideration and ordered the same relief
as in its previous decision. Orosz v. Department of Commerce, EEOC
Request No. 05A10114 (May 30, 2002). Commerce subsequently conducted
a supplementary investigation on compensatory damages and processed
complainant's attorney's fees petition pursuant to the Commission's
order.
On December 1, 2002, Commerce issued a final decision ordering that
Commerce pay complainant $31,835.25 in attorney's fees and $68,763.75
in past pecuniary and non-pecuniary damages. The decision also found
that complainant was entitled to future pecuniary damages and ordered
Commerce to calculate complainant's future pecuniary damages for wage
loss compensation from December 11, 2000 to the earliest date on which
complainant would have been eligible for retirement, not to exceed
$235,000.
In March 2003, Commerce informed Transportation that Transportation
was responsible for payment. Transportation conducted a review and
agreed to pay complainant the past and non-pecuniary damages award,
back pay with benefits and interest, and the attorney's fees awarded to
complainant in Commerce's final decision because Transportation determined
these calculations to be accurate. However, with respect to the future
pecuniary damages award, Transportation argued that Commerce did not
have authority to issue its December 1, 2002 final decision.
On appeal, the Commission determined that Commerce did not have authority
to issue the December 1, 2002 final decision because complainant's office,
and the handling of her case, had been transferred to Transportation.
Orosz v. Department of Transportation, Department of Commerce, EEOC
Appeal Nos. 01A43499, 01A44038 (January 10, 2006).3 The Commission
ordered Transportation, in pertinent part, to "conduct a supplemental
investigation on the complainant's entitlement to future pecuniary damages
for wage loss compensation and medical expenses if any, the numerical
amount of such entitlement, and issue a FAD thereon." Id. The Commission
indicated that, for purposes of this case, future pecuniary damages for
medical expenses are those incurred from September 17, 2002 onward.
AGENCY'S DECISION
On August 8, 2006, Transportation issued a final decision denying
complainant's request for future pecuniary damages. Specifically,
Transportation found that complainant was not entitled to payment for
lost wages from 1997 through 2002 because she failed to establish that
any of the alleged damages she suffered after her separation from the
agency in 1997 were directly related to the agency's January 12, 1994
failure to provide a reasonable accommodation. Transportation's decision
indicated that complainant "is entitled to damages which flow from this
discrimination; however, any damages stemming from her separation are not
available at this time." Transportation similarly denied complainant's
request for future medical expenses because complainant "cannot show a
causal nexus between any damages for future medical expenses incurred
from September 17, 2002 forward and the January 12, 1994, failure to
accommodate." Finally, Transportation noted that "complainant is not
entitled to compensation for stress incurred as a result of participating
in the EEO process."
CONTENTIONS ON APPEAL
On appeal, complainant argues that Transportation erred in refusing
to award future pecuniary damages for lost wages and future medical
expenses. Complainant contends that she suffered from depression at
the time Commerce denied her request for an accommodation, and that
her work situation from 1993 to 1997 culminated in her "emotional and
mental breakdown." Complainant further contends that Commerce "could
have prevented her breakdown by waiving the rotation assignment and
affording her an accommodation for her disability which she had been
requesting since 1993." Complainant indicates that, as a result of
Commerce's discrimination, she is "unemployable due to her injuries
(physical and mental disabilities) which limit her ability in the future
to earn a salary comparable with what she earned before her injuries."
In response, Transportation urges the Commission to affirm its final
decision. Transportation argues that complainant "has failed to establish
a causal connection between her claims for lost wages commencing in
April 1997 and the Department of Commerce's failure to accommodate
on January 12, 1994." The agency argues that complainant "failed to
provide any evidence to support entitlement to future medical expenses
from September 17, 2002 forward." Additionally, Transportation argues
that "complainant is not entitled to compensation for stress incurred
by participating in the EEO process."
ANALYSIS AND FINDINGS
Pursuant to section 102(a) of the Civil Rights Act of 1991, a
complainant who establishes his or her claim of unlawful discrimination
may receive, in addition to equitable remedies, compensatory damages
for past and future pecuniary losses (i.e., out-of-pocket expenses)
and non-pecuniary losses (e.g., pain and suffering, mental anguish).
42 U.S.C. �1981a(b)(3). For an employer with more than 500 employees,
such as Commerce or Transportation, the limit of liability for future
pecuniary and non-pecuniary damages is $300,000. Id.
Pecuniary damages may be awarded for losses that are directly or
proximately caused by the agency's discriminatory conduct. See EEOC's
Enforcement Guidance: Compensatory and Punitive Damages Available Under
Section 102 of the Civil Rights Act of 1991, EEOC Notice No. 915.002 at 8
(July 14, 1992). Pecuniary losses are out-of-pocket expense incurred as
a result of the agency's unlawful action, including job search expenses,
medical expenses, and other quantifiable out-of-pocket expenses that
are incurred as a result of the discriminatory conduct. Id. Future
pecuniary losses are likely to occur after resolution of the complaint.
Id.
Upon review, we concur with Transportation's determination that
complainant was not entitled to an award of damages for loss of future
earning capacity. The Commission has awarded future pecuniary damages
for the loss of future earning capacity where a complainant has shown
that his or her future earning power has been diminished as a result of
the agency's discrimination. See Moore v. United States Postal Service,
EEOC Appeal No. 0720050084 (March 6, 2007); Hernandez v. United States
Postal Service, EEOC Appeal No. 07A30005 (July 16, 2004); Brinkley
v. United States Postal Service, EEOC Request No. 05980429 (August
12, 1999). Proof of entitlement to damages for loss of future earning
capacity involves evidence suggesting that an individual's injuries have
narrowed the range of economic opportunities available to her. Brinkley,
EEOC Appeal No. 05980429. Generally, the party seeking compensation for
loss of earning capacity needs to provide evidence to demonstrate with
reasonable certainty or reasonable probability that the earning capacity
has been impaired and there must be evidence "which will permit the
[fact finder] to arrive at a pecuniary value for the loss." Id. (quoting
Carpenter v. Department of Agriculture, EEOC Appeal No. 01945652 (July
17, 1995)).
Complainant contends that she should be awarded future pecuniary damages
for loss of future earning capacity because Commerce's denial of her
request for a reasonable accommodation in 1994 led to her termination and
subsequent inability to work in 1997. However, the record reflects that
Commerce's refusal to grant complainant's request to be exempt from three
rotational requirements (in order to receive a promotion) as a reasonable
accommodation in 1994 was separate and distinct from Commerce's refusal
to allow complainant to continue working in Silver Spring, Maryland as an
accommodation in 1997 (when she was ordered to report to the Riverdale,
Maryland facility due to staffing and mission needs). The record further
reflects that complainant was able to continue working at Commerce after
her accommodation request was denied in 1994 with no apparent loss of
future earning capacity at that time. Complainant's depression and
anxiety deteriorated to a point where her future earning capacity was
limited only after she was denied the second request for an accommodation
and terminated in 1997.4 Complainant's treating psychiatrist confirmed
this in a July 8, 2002 letter, where she stated that "[complainant's]
present mental condition is work related and is a direct result of the
added stress her office imposed upon her by insisting that she report
to another work location (Riverdale) . . . complainant is not ready to
resume any form or kind of employment at this time."
Based on our review of the evidence, we find that complainant failed to
establish that Commerce's discriminatory failure to accommodate in 1994
was the proximate cause of her loss of future earning capacity. See Ortiz
v. Social Security Administration, EEOC Appeal No. 0120062670 (February
4, 2009) (finding that complainant was not entitled to compensatory
damages because he failed to establish the requisite proximate cause
between the agency's adverse action and the alleged harm). We note that
it is complainant's burden to provide objective evidence in support of
her claim and proof linking the damages to the alleged discrimination.
Papas v. United States Postal Service, EEOC Appeal No. 01930547 (March
17, 1994). Therefore, we find that complainant is not entitled to an
award of future pecuniary damages for loss of future earning capacity.
With respect to complainant's request for future medical expenses, we
find that Transportation erred in finding no causal connection between
complainant's future medical expenses and Commerce's 1994 failure to
accommodate. The record reflects that complainant suffered depression
and anxiety as a result of the agency's failure to provide her with
an accommodation in 1994 and that complainant's medical treatments
are ongoing. The July 8, 2002 letter from complainant's psychiatrist
indicates that complainant's treatments focused on coping with her
depression and anxiety from her work situation beginning in 1993.
Although complainant is also receiving treatment for other events that
exacerbated her depression and anxiety, including the death of her son in
1992, Commerce's decision to deny her second request for an accommodation,
her termination, and her physical disability, we find that complainant
established that the agency's 1994 denial of her accommodation is a
proximate cause of a portion of her future medical expenses. See Howen
v. Department of Veterans Affairs, EEOC Appeal No. 01A42618 (December
13, 2004) (awarding a part of complainant's requested future pecuniary
damages based on the diagnosis of her treating physician).
In terms of remedy, our prior decision awarded complainant $68,763.65 in
past pecuniary and non-pecuniary damages, and complainant's award for
future pecuniary losses therefore cannot exceed $231,236.35. See 42
U.S.C. � 1981a(b)(3). On appeal, complainant requests $13,438.56 for
medical expenses incurred between July 2002 through October 2006,5 and
$3,359.64 in medical expenses for 23 additional years, or $77,271.72, for
a total of $90,710.28. Complainant indicates that she bases this estimate
on her annual medical costs from July 2002 - October 2006 and a 23 year
life expectancy after October 2006.6 We find that there is insufficient
information in the record to calculate the size of complainant's future
medical expenses as a result of the agency's discriminatory denial of her
reasonable accommodation request in 1994. The record contains a petition
and supporting documentation complainant submitted to Transportation
in 2004, regarding her request for damages for loss of future earning
capacity, and her petition for compensatory damages submitted to Commerce
in 2002, but there is no evidence regarding her medical expenses after
2002. We note that our previous decision ordered Transportation to
conduct a supplemental investigation to determine, in pertinent part,
complainant's entitlement to future medical expenses after September
17, 2002. Orosz, EEOC Appeal Nos. 0120043499, 0120044038. However,
there is no evidence in the record that Transportation ever requested
or collected further documentation from complainant. Therefore, we
remand the matter to Transportation for a supplemental investigation and
determination as to the amount of future pecuniary damages for medical
expenses complainant is to be awarded.
CONCLUSION
Based on a thorough review of the record and the contentions on
appeal, including those not specifically addressed herein, we AFFIRM
Transportation's decision to deny complainant's request for future
pecuniary damages for the loss of future earning capacity. We VACATE
and REMAND Transportation's decision to deny complainant's request for
future pecuniary damages for medical expenses.
ORDER
The agency (Department of Transportation) is ordered to conduct a
supplemental investigation, which shall include the following actions:
(1) Within sixty (60) calendar days from the date this decision becomes
final, Transportation shall conduct a supplemental investigation on the
numerical amount of future pecuniary damages complainant is entitled to
for medical expenses incurred after September 17, 2002, and thereafter,
issue a final decision.
(2) Transportation shall remit payment to complainant within thirty (30)
days after the issuance of its final decision.
A copy of Transportation's supplemental investigation and the final
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 (T0408)
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 (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
March 24, 2009
Date
1 Complainant's permanent physical restrictions, which stem from
on-the-job injuries in 1986 and 1989, limit her from sitting more than
15 minutes at a time and from lifting over 10 pounds.
2 Complainant's reasonable accommodation claim was initially dismissed
by Commerce for untimely EEO Counselor contact. However, the Commission
reversed Commerce's decision and remanded the reasonable accommodation
claim to Commerce for further processing. Orosz v. Department of
Commerce, EEOC Appeal No. 01945621 (January 25, 1995).
3 The Commission's decision noted that Transportation fully implemented
the portions of the December 1, 2002 decision awarding past pecuniary
damages, non-pecuniary damages, and attorney's fees and that neither
party contested the Commission's previous decisions. Id.
4 There is no evidence in the record that complainant filed a timely
EEO complaint against Commerce for the second reasonable accommodation
request and/or termination in 1997.
5 Complainant calculated damages from July 2, 2002 despite the fact that
the Commission's previous decision specifically limited future medical
expenses to those incurred after September 17, 2002. See Orosz, EEOC
Appeal Nos. 01A43499, 01A44038.
6 We note that the Commission has previously found that a complainant's
general claim that she will continue to incur medical expenses for
the rest of her life without specific supporting documentation to be
insufficient evidence to support a claim for future medical expenses.
See Sorg v. Department of Commerce, EEOC Appeal No. 0720060065 (July 23,
2008).
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0120065134
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120065134