Gia M.v.Dep't of Def.

Equal Employment Opportunity Commission

Feb 8, 2019

EEOC Appeal No. 0120172952 (E.E.O.C. Feb. 8, 2019)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013

Gia M.,1
Complainant,

v.

James N. Mattis,
Secretary,
Department of Defense
(Department of Defense Education Activity),
Agency.

Appeal No. 0120172952

Agency No. DD-FY16-068

DECISION

On August 23, 2017, Complainant filed an appeal with the Equal Employment Opportunity
Commission (EEOC or Commission), pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s
August 14, 2017, final decision concerning her equal employment opportunity (EEO) complaint
alleging employment discrimination in violation of Section 501 of the Rehabilitation Act of 1973
(Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a Supervisory Food
Service Specialist at the Agency’s Murray Elementary School facility in Fort Stewart, Georgia.

In the Agency’s earlier decision, dated April 12, 2017, the Agency found that the Agency
discriminated against Complainant on the basis of her physical and mental disabilities when the
Agency failed to address her request for reasonable accommodation in an appropriate and timely
manner.2

1 This case has been randomly assigned a pseudonym which will replace Complainant’s name
when the decision is published to non-parties and the Commission’s website.

2 The Agency concluded that Complainant was physically unable to drive a van, that is was
reasonable and necessary for her to use her private vehicle and that she should have received the
full Joint Travel Regulation (JTR) mileage for use of her POV. The Agency found that rather
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Among other remedies, the Agency awarded Complainant $500 in non-pecuniary compensatory
damages for the harm she suffered as a result of the failure to accommodate her. The Agency
reasoned that the factual record did not support the claim that Complainant suffered new or
aggravated physical harm from driving a government van during the relevant dates from August
3, 2015, when she first requested a reasonable accommodation until her resignation from her
positon on July 26, 2016. The Agency concluded the evidence in the record regarding the
proximate cause of the “harm” Complainant experienced pointed only to symptoms attendant to
Complainant’s frustration regarding the refusal of the Agency to reimburse her for the use of her
private vehicle at a higher rate to which she believed she was entitled, the delay in the Agency’s
response, and being told that she would not have exclusive use of the government car. The
Agency concluded that Complainant’s evidence of a prior history of chronic pre-existing
physical and mental ailments goes back to her experiences in the military 16 years earlier.

This appeal followed.

ANALYSIS AND FINDINGS

When discrimination is found, the agency must provide the complainant with a remedy that
constitutes full, make-whole relief to restore her as nearly as possible to the position she would
have occupied absent the discrimination. See e.g. Franks v. Bowman Transportation Co., 424
U.S. 747, 764 (1976); Albemarle Paper Co. v. Moody, 422 U.S. 405, 418-419 (1975). A person
who established discrimination under the 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.

To receive an award of compensatory damages, a complainant must demonstrate that he or she
has been harmed as a result of the agency’s discriminatory action; the extent, nature, and severity
of the harm; and the duration of, or expected duration of, the harm. Ashlea P. v. United States
Postal Service, EEOC Appeal No. 0120141369 (April 19, 2016).

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, and loss of health. See EEOC Notice No. 915.002 at
10 (July 14, 1992).3

than accommodating Complainant, the Agency manager attempted to force Complainant to drive
a van, knowing that this caused Complainant pain. Once the District obtained a GOV car,
Complainant was still not granted full access to it. The Agency found that the eight-month delay
in taking action was unreasonable, amounted to a denial of reasonable accommodation and was a
clear violation of the disability law.

3 With regard to pecuniary damages, the Agency determined that Complainant was entitled to
full reimbursement for her mileage at the higher rate of $.50 per mile) for using her POV for
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Complainant submitted statements and medical evidence to the Agency, in support of her claim
of entitlement to non-pecuniary damages of $150,000.00 for her pain and suffering, including the
aggravation of her well-documented medical conditions. Complainant attested that she
experienced pain and suffering when she was forced to drive a government van after the Agency
was aware of her back and neck medication conditions. She stated she had to take pain
medication and had several hospital visits. She averred that she became withdrawn, no longer
socialized with friends, and had workplace anxieties and marital strain.

The record also contains a letter dated May 12. 2017, from Complainant’s husband, who stated
that Complainant pushed herself at work, even when she was in pain. He stated that in August
2015, he told Complainant to request accommodations to make things easier for Complainant’s
condition. He also stated Complainant started to isolate herself by December 2015 and this
affected their family life. Similarly, Complainant’s colleague stated in a signed written statement
dated May 5, 2017, that Complainant “changed drastically” in her last year and half of work and
was “angry, irritable and withdrawn.” The colleague stated Complainant was “in a very dark
place” and was no longer joining her for their monthly lunch dates. Complainant’s therapist
diagnosed Complainant as having sleep disturbance, problems with concentration, excessive
irritable behavior, feelings of detachment, and diminished interest in participating in activities.

In addition, the Agency acknowledged that. in support of her claim for compensatory damages,
Complainant provided copies of medical documents from several providers. According to one
report (Progress Notes from the VA regarding her treatment on July 28, 2015), Complainant was
on various psychiatric medications for irritability, anger, sleep disorder, pain, depression and
anxiety and that she reported having three panic attacks in the last month. By January 21, 2016,
the VA noted that Complainant was taking 16 outpatient VA medications, had five pending
medications and was taking four non-VA medications for a total of 25 medications. In a series
of treatment notes for appointments Complainant attended between June 13, 2016 (shortly before
leaving the Agency) and May 2017, one doctor described Complainant’s condition as loss of
cervical lordosis [an inward curvature] and advanced degenerative disc disease. He also treated
her for her neck and back pain. Complainant told the doctor her pain started several years in the
past.

In the Agency’s April 12, 2017 decision, it found that Complainant was subjected to
discrimination for a period of eight months. The Agency, in its decision on relief, dated April
14, 2017, attempts to minimize the length of time Complainant was harmed, noting that there
was no evidence that she ever drove a government van. We are not persuaded by the Agency’s
attempt to recant its finding of discrimination or limit the duration of the time of injury.

business reasons as opposed to the lower rate ($0.19 per mile) when a government vehicle was
available. The time period relevant to the finding is from August 3, 2015 to July 26, 2016. On
appeal, Complainant has requested that this award be enforced.

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Based upon our review of the record, and Commission precedent, we find that Complainant is
entitled to $10,000 in non-pecuniary damages. An award of $10,000 takes into account the
nature, severity, and duration of Complainant’s suffering, as well as her pre-existing medical
conditions, some of which were exacerbated by the failure to accommodate. This amount is also
consistent with other non-pecuniary compensatory damages awards given in similar cases and is
not “monstrously excessive” standing along, nor derived from passion or prejudice. See
Complainant v. Department of Homeland Security, EEOC Appeal No. 07A30094 (February 19,
2004 ($10,000 awarded where Complainant experienced an exacerbation of physical ailments as
well as low self-esteem, depression, anxiety and marital strain) and Complainant v. Dep’t of
Veterans Affairs, EEOC Appeal No. 0120070384 (June 19, 2009) ($10,000 awarded where
Complainant experienced stress, humiliation, anxiety, sleeplessness and depression).

We note that, on appeal, Complainant attempts to recover additional damages unrelated to the
Agency’s finding of a denial of reasonable accommodation. She now raises for the first time on
appeal a claim of constructive discharge.4 However, the record shows that Complainant resigned
her position and did not raise this constructive discharge claim in a timely manner. While we are
aware that, in its decision, the Agency stated that Complainant’s resignation was reasonable, this
does not necessarily equate to a finding that she was constructively discharged. We decline to
award her back pay or damages for loss of future earnings.

CONCLUSION

For the reasons stated above, we conclude that Complainant is not entitled to other past or future
pecuniary damages, but is entitled to an award of $10,000 in non-pecuniary damages. We
therefore MODIFY the Agency’s final decision regarding the amount of compensatory damages
and ORDER the Agency to take corrective action in accordance with this decision, which also
incorporates by reference the relief ordered in the Agency’s April 12, 2017 merits decision on
liability, and the Order below.

4 She seeks $2,4440.00 and $23,308.92 for 18 pay periods ending April 12, 2017. In addition,
she requests recovery of future loss of earnings in the amount of $64,697.00.
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ORDER
The Agency is ordered to take the following remedial action within sixty (60) days of the date of
this decision:
1. The Agency should authorize and pay the appropriate mileage reimbursement for
Complainant’s use of her POV for duty-related travel from August 3, 2015, until
the date of her resignation. Complainant’s POV mileage reimbursement at the full
JTR rate is estimated to be $.50 per mile. (rather than the reduced rate of .19 per
mile). Consistent with the liability decision, full reimbursement sought as
reasonable accommodation by Complainant would have amounted to less than
$1,000 extra for the entire covered period.
2. The Agency shall tender to Complainant the sum of $10,000.00 in non-pecuniary
damages.
The Agency is further directed to submit a report of compliance in digital format as provided in
the statement entitled "Implementation of the Commission's Decision." The report shall be
submitted via the Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). Further,
the report must include supporting documentation of the Agency's calculation of back pay and
other benefits due Complainant, including evidence that the corrective action has been
implemented.
ATTORNEY'S FEES (H1016)
If Complainant has been represented by an attorney (as defined by 29 C.F.R.
§ 1614.501(e)(1)(iii)), she is entitled to an award of reasonable attorney's fees incurred in the
processing of the complaint. 29 C.F.R. § 1614.501(e). The award of attorney's fees shall be paid
by the Agency. The attorney shall submit a verified statement of fees to the Agency -- not to the
Equal Employment Opportunity Commission, Office of Federal Operations -- within thirty (30)
calendar days of the date this decision was issued. The Agency shall then process the claim for
attorney's fees in accordance with 29 C.F.R. § 1614.501.
IMPLEMENTATION OF THE COMMISSION’S DECISION (K0618)
Under 29 C.F.R. § 1614.405(c) and §1614.502, compliance with the Commission’s corrective
action is mandatory. Within seven (7) calendar days of the completion of each ordered
corrective action, the Agency shall submit via the Federal Sector EEO Portal (FedSEP)
supporting documents in the digital format required by the Commission, referencing the
compliance docket number under which compliance was being monitored. Once all compliance
is complete, the Agency shall submit via FedSEP a final compliance report in the digital format
required by the Commission. See 29 C.F.R. § 1614.403(g). The Agency’s final report must
contain supporting documentation when previously not uploaded, and the Agency must send a
copy of all submissions to the Complainant and his/her representative.
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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 (M0617)
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 tends 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. A party
shall have twenty (20) calendar days of receipt of another party’s timely request for
reconsideration in which to submit a brief or statement in opposition. See 29 C.F.R. § 1614.405;
Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110),
at Chap. 9 § VII.B (Aug. 5, 2015). All requests and arguments must be submitted to the
Director, Office of Federal Operations, Equal Employment Opportunity Commission.
Complainant’s request may be submitted via regular mail to P.O. Box 77960, Washington, DC
20013, or by certified mail to 131 M Street, NE, Washington, DC 20507. 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
agency’s request must be submitted in digital format via the EEOC’s Federal Sector EEO Portal
(FedSEP). See 29 C.F.R. § 1614.403(g). 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).
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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 (Z0815)
If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may
request permission from the court to proceed with the civil action without paying these fees or
costs. Similarly, if you cannot afford an attorney to represent you in the civil action, you may
request the court to appoint an attorney for you. You must submit the requests for waiver of
court costs or appointment of an attorney directly to the court, not the Commission. The
court has the sole discretion to grant or deny these types of requests. Such requests do not alter
the time limits for filing a civil action (please read the paragraph titled Complainant’s Right to
File a Civil Action for the specific time limits).
FOR THE COMMISSION:

______________________________ Carlton M. Hadden’s signature
Carlton M. Hadden, Director
Office of Federal Operations

February 8, 2019
Date