0120064277
03-13-2009
Freda E. Ferguson, Complainant, v. Tom J. Vilsack, Secretary, Department of Agriculture, Agency.
Freda E. Ferguson,
Complainant,
v.
Tom J. Vilsack,
Secretary,
Department of Agriculture,
Agency.
Appeal No. 0120064277
Agency No. 980576
DECISION
On July 11, 2006, complainant timely filed an appeal from the agency's
June 9, 2006 final decision concerning her entitlement to compensatory
damages incurred as a result of the agency's unlawful employment
discrimination in violation of Section 501 of the Rehabilitation Act
of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq. The
appeal is accepted pursuant to 29 C.F.R. � 1614.405(a).
BACKGROUND
At the time of events giving rise to this complaint, complainant worked
as a Community and Business Programs Technician at the agency's facility
in Columbia, Missouri.
On April 20, 1998, complainant filed an EEO complaint alleging that she
was discriminated against on the basis of disability when the agency
failed to provide her with a reasonable accommodation of her disability
beginning on March 12, 1998. Complainant additionally alleged that
she was discriminated on the bases of disability, sex, and age when
a female co-worker was allowed to subject complainant to verbal abuse
and denied her the necessary training to be proficient in her job, and
her supervisor subjected her to an openly hostile work environment by
refusing to associate with her, and "biting her head off whenever she
asked him a question."
At the conclusion of the investigation, complainant was provided with a
copy of the report of investigation and notice of her right to request
a hearing before an EEOC Administrative Judge (AJ). In accordance with
complainant's request, the agency issued a final decision pursuant to
29 C.F.R. � 1614.110(b). The decision concluded that complainant proved
that the agency violated the Rehabilitation Act by denying complainant a
reasonable accommodation for her disability but did not prove that she
was subjected to a hostile work environment on the bases of sex, age,
and disability. The agency did not award complainant compensatory
damages on the basis that the agency did not act in "bad faith."
In an appellate decision on the matter, the Commission affirmed
the agency's finding of no hostile work environment but found that
complainant was entitled to compensatory damages because the agency failed
to reasonably accommodate her disability. Freda Ferguson v. Department
of Agriculture, EEOC Appeal No. 01A33341 (July 22, 2004). Accordingly,
the Commission ordered, in pertinent part, the agency to conduct a
supplemental investigation on the issue of complainant's entitlement
to compensatory damages and afford her an opportunity to establish a
causal relationship between the denial of reasonable accommodation and
her pecuniary or non-pecuniary losses.
In a memorandum to the agency dated September 30, 2004, complainant
requested $300,000 in compensatory damages. In that memorandum,
complainant stated that her back condition was "greatly aggravated"
by the agency's six-year failure to accommodate her by relieving her
from filing duties. Complainant further stated that when she filed,
she suffered a "great deal of pain" that sometimes lasted for days.
She also stated that her pain medication was not effective at relieving
the pain, which meant she was unable to do household chores or sleep well.
Complainant stated that it usually took two to three days to "get the
pain under control after a heavy bout of filing." Additionally,
complainant alleged that the agency has engaged in various acts of
retaliation against her, including denying her sick leave, harassment,
and failing to promote her.
On October 20, 2004, the agency requested that complainant provide
further evidence in support of her claim for compensatory damages.
In a letter dated November 17, 2004, complainant requested $500,000.00
in compensatory damages. Complainant further stated that because of the
agency's failure to accommodate her, she has lived in mortal fear that
she would lose her job and home. She stated that because of the failure
to accommodate, she hyperventilated; almost passed out; no longer went
to a physician because the physician told her that there is nothing that
can be done for her back; her pain medication failed to relieve her pain;
suffered from nausea; could not engage in household chores such as mowing
the lawn or cleaning; experienced sleeplessness; and, stopped gardening,
refinishing furniture, and grooming her dogs because of the pain.
Complainant further alleged that the agency subjected her to various acts
of discrimination and reprisal that humiliated and insulted complainant.
In its June 9, 2006 final decision, the agency determined that complainant
was entitled to $25,000.00 in non-pecuniary compensatory damages for
its failure to provide complainant with a reasonable accommodation
from March 1998 until October 20, 2004. In so finding, the agency
determined that complainant demonstrated that its failure to accommodate
complainant adversely affected her physical and emotional health through
statements from complainant, co-workers, and a friend. However, the
agency determined that complainant also presented evidence not related
to her successful accommodation claim, such as statements related to her
unsuccessful harassment, threatened termination, and non-promotion claims.
The agency further noted that complainant indicated that she is not
seeking attorney's fees.1
CONTENTIONS ON APPEAL
On appeal, complainant contends that she is entitled to the maximum
amount of compensatory damages in this case because the agency's failure
to accommodate her was a "deliberate act." Complainant also reiterates
claims that management has engaged in further acts of discrimination,
harassment, and reprisal against her since she prevailed on her failure
to accommodate claim.
ANALYSIS AND FINDINGS
As this is an appeal from a decision issued without a hearing, pursuant
to 29 C.F.R. � 1614.110(b), the agency's decision is subject to de novo
review by the Commission. 29 C.F.R. � 1614.405(a). See EEOC Management
Directive 110, Chapter 9, � VI.A. (November 9, 1999) (explaining that
the de novo standard of review "requires that the Commission examine
the record without regard to the factual and legal determinations of the
previous decision maker," and that EEOC "review the documents, statements,
and testimony of record, including any timely and relevant submissions
of the parties, and . . . issue its decision based on the Commission's
own assessment of the record and its interpretation of the law").
Pursuant to section 102(a) of the Civil Rights Act of 1991, a complainant
who establishes unlawful intentional discrimination under either Title VII
of the Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. � 2000e
et seq. or Section 501 of the Rehabilitation Act of 1973 (Rehabilitation
Act), as amended, 29 U.S.C. � 791 et seq. may receive 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) as part
of this "make whole" relief. 42 U.S.C. � 1981a(b)(3). In West v. Gibson,
527 U.S. 212 (1999), the Supreme Court held that the Commission has the
authority to award compensatory damages in the federal sector EEO process.
For an employer with more than 500 employees, such as the agency, the
limit of liability for future pecuniary and non-pecuniary damages is
$300,000. 42 U.S.C. �1981a(b)(3).
The particulars of what relief may be awarded, and what proof is
necessary to obtain that relief, are set forth in detail in EEOC's
Enforcement Guidance, Compensatory and Punitive Damages Available
Under Section 102 of the Civil Rights Act of 1991 (July 14, 1992)
( Enforcement Guidance). Briefly stated, the complainant must submit
evidence to show that the agency's discriminatory conduct directly
or proximately caused the losses for which damages are sought. Id. at
11-12, 14; Rivera v. Department of the Navy, EEOC Appeal No. 01934157
(July 22, 1994). The amount awarded should reflect the extent to which
the agency's discriminatory action directly or proximately caused harm
to the complainant and the extent to which other factors may have played
a part. Guidance at 11-12. The amount of non-pecuniary damages should
also reflect the nature and severity of the harm to the complainant,
and the duration or expected duration of the harm. Id. at 14.
As previously noted, the agency factored in evidence that indicated that
complainant had a pre-existing back condition and claimed discrimination
unrelated to its failure to accommodate her in awarding complainant only
$25,000.00 in non-pecuniary damages. Based on the record and statements,
the Commission finds the agency's award insufficient to remedy the harm
that the agency's actions caused complainant. In this case, complainant
provided evidence that for over a six year time period, her pre-existing
back condition was exacerbated by the agency's failure to provide her
with a reasonable accommodation. While some of evidence contained in
complainant's compensatory damages are not recoverable herein because
they are not related to complainant's successful reasonable accommodation
claim and concern claims of further discrimination, we determine that
complainant provided compelling evidence that because the agency denied
her a reasonable accommodation, she sometimes hyperventilated, could no
longer do household chores, could no longer engage in hobbies that she
once enjoyed, suffered from insomnia, experienced nausea, and lived in
pain because her medication became ineffective. Complainant's co-worker
also stated that after the agency failed to accommodate complainant in
1998, complainant reported that her back hurt when the agency directed
her to perform filing duties. The co-worker further stated that the
agency's failure to accommodate complainant was a "source of great
frustration" for complainant. Thus, we find that although complainant
had a pre-existing back condition, the condition was exacerbated by the
agency's failure to provide her with a reasonable accommodation.2
Consequently, we find that an award of $50,000.00 in non-pecuniary
compensatory damages is appropriate in this case because of the number
of years complainant suffered without an accommodation, as well the
fact that it is consistent with Commission precedent. See Katherine
D. Duncan v. Social Security Administration, EEOC Appeal No. 0120064557
(April 4, 2008)(Commission awarded $50,000 in non-pecuniary damages to
complainant who was not accommodated and whose medical condition was
exacerbated to the extent that she had difficulty sleeping and was unable
to perform household chores); Ortiz v. United States Postal Service,
EEOC Appeal No. 01A15376 (September 25, 2002) (Commission awarded
$50,000 in non-pecuniary damages to a complainant, who was denied an
accommodation for his disability and experienced emotional distress,
sleeplessness, insomnia, depression, and ulcers); Williams. V. United
States Postal Service, EEOC Appeal No. 01990520 (February 14, 2002)
(Commission awarded $50,000 in compensatory damages to a complainant
who was denied a reasonable accommodation for his disability and who
experienced an exacerbation of a pre-existing condition, depression, and
homicidal and suicidal thoughts). As such, an award of $50,000 takes into
account the nature, severity, and duration of complainant's suffering,
is consistent with other non-pecuniary compensatory damages awards given
in similar cases, and is not "monstrously excessive" standing alone or
derived from passion or prejudice.
CONCLUSION
Accordingly, after careful review of the record, we remand this matter
to agency and order it to take remedial action in accordance with this
decision and the Order below.
ORDER
To the extent that it has not already done so, the agency is ordered to
take the following remedial action:
Within thirty (30) calendar days from the date this decision becomes
final, the agency shall pay complainant $50,000.00 in non-pecuniary
compensatory damages.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K1208)
Compliance with the Commission's corrective action is mandatory.
The agency shall submit its compliance report within thirty (30) calendar
days of the completion of all ordered corrective action. The report shall
be submitted to the Compliance Officer, Office of Federal Operations,
Equal Employment Opportunity Commission, P.O. Box 77960, Washington,
DC 20013. The agency's report must contain supporting documentation,
and the agency must send a copy of all submissions to the complainant.
If the agency does not comply with the Commission's order, the complainant
may petition the Commission for enforcement of the order. 29 C.F.R. �
1614.503(a). The complainant also has the right to file a civil action
to enforce compliance with the Commission's order prior to or following
an administrative petition for enforcement. See 29 C.F.R. �� 1614.407,
1614.408, and 29 C.F.R. � 1614.503(g). Alternatively, the complainant
has the right to file a civil action on the underlying complaint in
accordance with the paragraph below entitled "Right to File A Civil
Action." 29 C.F.R. �� 1614.407 and 1614.408. A civil action for
enforcement or a civil action on the underlying complaint is subject
to the deadline stated in 42 U.S.C. 2000e-16(c) (1994 & Supp. IV 1999).
If the complainant files a civil action, the administrative processing of
the complaint, including any petition for enforcement, will be terminated.
See 29 C.F.R. � 1614.409.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1208)
The Commission may, in its discretion, reconsider the decision in this
case if the complainant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. The appellate decision involved a clearly erroneous interpretation
of material fact or law; or
2. The appellate decision will have a substantial impact on the
policies, practices, or operations of the agency.
Requests to reconsider, with supporting statement or brief, must be filed
with the Office of Federal Operations (OFO) within thirty (30) calendar
days of receipt of this decision or within twenty (20) calendar days of
receipt of another party's timely request for reconsideration. See 29
C.F.R. � 1614.405; Equal Employment Opportunity Management Directive for
29 C.F.R. Part 1614 (EEO MD-110), 9-18 (November 9, 1999). All requests
and arguments must be submitted to the Director, Office of Federal
Operations, Equal Employment Opportunity Commission, P.O. Box 77960,
Washington, DC 20013. In the absence of a legible postmark, the request
to reconsider shall be deemed timely filed if it is received by mail
within five days of the expiration of the applicable filing period.
See 29 C.F.R. � 1614.604. The request or opposition must also include
proof of service on the other party.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely, unless extenuating circumstances
prevented the timely filing of the request. Any supporting documentation
must be submitted with your request for reconsideration. The Commission
will consider requests for reconsideration filed after the deadline only
in very limited circumstances. See 29 C.F.R. � 1614.604(c).
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (R0408)
This is a decision requiring the agency to continue its administrative
processing of your complaint. However, if you wish to file a civil
action, you have the right to file such action in an appropriate United
States District Court within ninety (90) calendar days from the date
that you receive this decision. In the alternative, you may file a
civil action after one hundred and eighty (180) calendar days of the date
you filed your complaint with the agency, or filed your appeal with the
Commission. If you file a civil action, you must name as the defendant
in the complaint the person who is the official agency head or department
head, identifying that person by his or her full name and official title.
Failure to do so may result in the dismissal of your case in court.
"Agency" or "department" means the national organization, and not the
local office, facility or department in which you work. Filing a civil
action will terminate the administrative processing of your complaint.
RIGHT TO REQUEST COUNSEL (Z1008)
If you decide to file a civil action, and if you do not have or cannot
afford the services of an attorney, you may request from the Court that
the Court appoint an attorney to represent you and that the Court also
permit you to file the action without payment of fees, costs, or other
security. See Title VII of the Civil Rights Act of 1964, as amended,
42 U.S.C. � 2000e et seq.; the Rehabilitation Act of 1973, as amended,
29 U.S.C. �� 791, 794(c). The grant or denial of the request is within
the sole discretion of the Court. Filing a request for an attorney with
the Court does not extend your time in which to file a civil action.
Both the request and the civil action must be filed within the time
limits as stated in the paragraph above ("Right to File A Civil Action").
FOR THE COMMISSION:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
_March 13, 2009_________________
Date
1 We further note that complainant did not make a claim for pecuniary
compensatory damages.
2 The Commission applies the principle that "a tortfeasor takes its
victims as it finds them." Wallis v. United States Postal Service,
EEOC Appeal No. 01950510 (November 13, 1995) (quoting Williamson
v. Handy Button Machine Co., 817 F.2d 1290, 1295 (7th Cir. 1987)). The
Commission also applies two exceptions to this general rule. First, when
a complainant has a pre-existing condition, the agency is liable only for
the additional harm or aggravation caused by the discrimination. Second,
if the complainant's pre-existing condition inevitably would have
worsened, the agency is entitled to a reduction in damages reflecting
the extent to which the condition would have worsened even absent the
discrimination; the burden of proof being on the agency to establish
the extent of this entitlement. Wallis, EEOC Appeal No. 01950510
(citing Maurer v. United States, 668 F.2d 98 (2d Cir. 1981)); Finlay
v. United States Postal Service, EEOC Appeal No. 01942985 (April 29,
1997). The Commission notes, however, that complainant is entitled to
recover damages only for injury, or additional injury, caused by the
discrimination. Terrell v. Department of Housing and Urban Development,
EEOC Appeal No. 01961030 (October 25, 1996); EEOC Notice No. N 915.002
at 12.
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0120064277
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120064277
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