Evelyn L. Orosz, Complainant,v.Mary E. Peters, Secretary, Department of Transportation, Agency.

Equal Employment Opportunity CommissionMar 24, 2009
0120065134 (E.E.O.C. Mar. 24, 2009)

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