01a40791
03-28-2005
Glenda Wynn, Complainant, v. John W. Snow, Secretary, Department of the Treasury, Agency.
Glenda Wynn v. Department of the Treasury
01A40791
March 28, 2005
.
Glenda Wynn,
Complainant,
v.
John W. Snow,
Secretary,
Department of the Treasury,
Agency.
Appeal No. 01A40791
Agency No. TD-02-1207
Hearing No. 110-A3-8206X-LL
DECISION
Complainant timely initiated an appeal from the agency's October 14,
2003 final order concerning the relief to which she is entitled as a
result of a finding of discrimination in violation of Title VII of the
Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. � 2000e et
seq. and Section 501 of the Rehabilitation Act of 1973 (Rehabilitation
Act), as amended, 29 U.S.C. � 791 et seq.
ISSUE
The issue on appeal is whether the agency properly determined that
complainant was entitled to payment of $1,000.00 in compensatory damages
as the sole relief for her complaint.
BACKGROUND
During the relevant time complainant was employed as a Bankruptcy
Specialist, GS 1101-09, at the agency's Small Business/Self-Employed
Division in Atlanta, Georgia facility. Complainant's attorney filed
a formal complaint on complainant's behalf with the agency on June
18, 2002, alleging that complainant was subjected to discrimination
on the bases of race (Black), disability (hypertension, anxiety, and
depression), and reprisal for prior protected activity when: management
denied complainant's request to work flexiplace three days a week.
Following 180 days after the filing of the complaint, complainant
requested a hearing before an EEOC Administrative Judge (AJ) on her
complaint. The EEOC's Atlanta District Office received complainant's
request for a hearing on January 14, 2003, and on January 21, 2003, the
agency was ordered to produce complainant's file within fifteen days or
explain why it could not do so. Without receiving a response from the
agency, the AJ assigned to the case issued a February 5, 2003 Notice
and Order to Show Cause for the agency to respond within 15 days why
it should not be sanctioned for its failure to produce the complaint
file or Report of Investigation (ROI). The Order warned the agency
that sanctions, including a decision in complainant's favor, could be
issued in complainant's favor if good cause was not shown. When the
agency failed to respond, the AJ issued a decision on March 13, 2003,
in complainant's favor as a sanction for the agency's failure to obey
the two orders to produce the complaint file and ROI. The AJ scheduled
a hearing to determine relief for 3:00 p.m. on April 9, 2003.
The record reveals that the original hearing on relief scheduled for
April 9, 2003, was postponed. On July 2, 2003, a hearing was held on
the relief to be awarded complainant. Complainant's attorney failed to
appear at the hearing but submitted a �List of Harm.� Complainant was
the sole witness to testify at the hearing on relief. The AJ issued a
bench decision awarding complainant $1,000.00 in compensatory damages.
The AJ found complainant was not entitled to back pay or front pay and
did not award attorney's fees. With regard to attorney's fees, the AJ
noted that complainant's attorney did not respond to her Order requiring
him to attend the hearing on relief, nor did he contact her to let her
know he would not be attending. Additionally, the AJ noted that he did
not submit a request for attorney's fees. The AJ's decision was mailed
to the parties on August 27, 2003.
The agency issued a final order dated October 14, 2003, fully implementing
the AJ's decision on compensatory damages.
CONTENTIONS ON APPEAL
On appeal, complainant's attorney claims that the AJ failed to provide
complainant relief for salary losses due to her illnesses which resulted
in severe financial difficulties resulting in foreclosure of her home
and her having to file a petition for bankruptcy in district court.
Complainant's attorney notes that after the AJ issued her March 13,
2003 decision finding in complainant's favor, she scheduling a hearing
on relief for April 9, 2003. Complainant's attorney explains that prior
to the scheduled hearing date, he made an unopposed verbal request for a
continuance on the grounds of inconvenience which was granted. He notes
that the AJ rescheduled the hearing for July 2, 2003. Complainant's
attorney states that on June 23, 2003, he was informed by his attorney
that a trial had been scheduled for his own EEO case in the United
States District Court, Northern District of Georgia, Atlanta District.
He states that he immediately filed an unopposed motion with the AJ
for a continuance. He states that from June 23, until July 2, 2003,
he was immersed in trial preparation and had assumed that the AJ would
grant the motion. He states that when he did not receive a response
from the AJ, he contacted the agency representative who stated that he
also had heard nothing and assumed that the hearing was to proceed as
scheduled. Complainant's attorney claims that on the morning of July 2,
2003, he filed an amended motion for a continuance via facsimile with
the AJ further explaining the circumstances and proving a copy of the
district court judge's trial scheduling order. He states that the AJ
did not respond and at 1:30 p.m. the agency representative informed him
that the AJ intended to conduct the hearing at 3:00 p.m. as scheduled.
Complainant's attorney states that since he was unable to attend the
hearing, he prepared a brief and cursory list of actual economic damages
incurred by complainant and forwarded that to the AJ via facsimile as
an exhibit for introduction into the record along with the testimony
presented by complainant. He notes that the AJ did not respond to
the amended motion and the hearing was held without his attendance as
complainant's representative.
Complainant's attorney argues that the AJ abused her discretion when
she did not respond to the motion for a continuance of the relief
hearing based on his inability to appear. Complainant's attorney
states that assuming arguendo that the AJ did not abuse her discretion,
the hearing transcript reflects a total abdication of the AJ's duty to
protect complainant's rights. He argues that despite the fact that the
AJ knew complainant had endured a lengthy financial crisis culminating in
the loss of her home causing mental and emotional stress, such economic
damages were not developed during the hearing. Additionally, he argues
that the denial of attorney's fees was a capricious and arbitrary abuse
of discretion by the AJ. Complainant's attorney requests the case be
remanded to the EEOC's Atlanta District Office for a fair hearing in
the matter of pecuniary and non-pecuniary compensatory damages.
The agency supplies a copy of a June 23, 2003 letter from complainant's
attorney addressed to the AJ stating that his personal EEO case is
scheduled for trial in U.S. District Court in mid-July and requesting
that complainant's damages hearing be rescheduled indefinitely pending
conclusion of the trial.
ANALYSIS
At the outset we note that on appeal neither party challenges the AJ's
finding that complainant is an individual with a disability within the
meaning of the Rehabilitation Act.
Motions for Continuance
We first address complainant's argument that the AJ abused her discretion
during the hearing when the AJ failed to address complainant's motions
for continuance. We have reviewed the hearing file and find no persuasive
evidence showing that complainant filed a request for a continuance with
the AJ on June 23, 2003, or a renewed motion for a continuance on July
2, 2003 or that the AJ denied such requests. Additionally, when the AJ
issued her July 2, 2003 decision she noted that complainant's attorney
did not respond to her order requiring him to attend the hearing and
did not contact her to let her know that he would not be attending
the hearing. Further, the hearing transcript reveals that complainant
failed to make any objection on the record regarding the AJ's denial of
a continuance due to her attorney's inability to attend. Accordingly, we
find that complainant has not provided any supporting evidence on appeal
to support her claim that she requested and was denied the opportunity
for a continuance of the July 2, 2003 hearing for relief.
Compensatory Damages
To receive an award of compensatory damages, complainant must demonstrate
that she has been harmed as a result of the agency's discriminatory
action; the extent, nature and severity of the harm; and the duration or
expected duration of the harm. See Rivera v. Department of the Navy,
EEOC Appeal No. 01934157 (July 22, 1994), request for reconsideration
denied, EEOC Request No. 05940927 (December 11, 1995); Compensatory and
Punitive Damages Available Under Section 102 of the Civil Rights Act of
1991, EEOC Notice No. N 915.002 at 11-12, 14 (July 14, 1992).
An award of compensatory damages for non-pecuniary losses, including
emotional harm, should reflect the extent to which the respondent directly
or proximately caused the harm, and the extent to which other factors
also caused the harm. The Commission has held that evidence from a
health care provider is not a mandatory prerequisite for recovery of
compensatory damages. See Carpenter v. Department of Agriculture, EEOC
Appeal No. 01945652 (July 17, 1995). The absence of supporting evidence
may affect the amount of damages deemed appropriate in specific cases.
See Lawrence v. USPS, EEOC Appeal No. 01952288 (April 18, 1996).
After a careful review of the record, considering the nature of the
discriminatory actions and the nature of the harm to complainant, we
find the award of $1,000.00 in non-pecuniary damages was appropriate.
The record reveals that complainant suffered from hypertension, anxiety,
sleep disorder, gastritis and depression, prior to the filing of her
complaint. Complainant's medical conditions led to her being out of
work from December 14, 2001, through January 30, 2002. As a result of
these medical ailments, complainant's doctor submitted a January 18,
2002 letter, requesting that complainant be allowed to work at home for
three days a week. Complainant's request to work from home three days a
week was subsequently denied by the agency and resulted in the filing of
the present complaint. In her �List of Harm� submitted at the hearing
on relief, complainant stated that she �had to endure health issues
because of the additional stress.� She states that she had to find a
new physician for a second opinion and on each visit her blood pressure
increased which would result in increases to her medication. She also
states that she �had to endure countless tests causing more stress and
emotional uprise, which lead to more anxiety, depression and medicine.�
At the hearing, complainant stated that she �switched to a second doctor
and he is treating me for anxiety and depression, he switched my high
blood pressure pills.� Complainant did not submit any other testimony or
documentation supporting her claim for non-pecuniary compensatory damages.
The Commission has awarded similar compensatory damages in cases similar
to complainant's case See Allen v. United States Postal Service, EEOC
Appeal No. 01990101 (May 22, 2002)($2,000.00 awarded in non-pecuniary
damages where agency's failure to provide reasonable accommodation
lead to complainant's removal), req. for recons. den., EEOC Request
No 05A20939 (August 27, 2002) ; Troupe v. Department of Treasury, EEOC
Appeal No. 01985836 (August 2, 2001)($2,000.00 awarded in non-pecuniary
damages where agency failed to provide reasonable accommodation),
req. for recons. den., EEOC Request No. 05A11097 (January 30, 2002),
req. for recons. den., EEOC Request No. 05A20789 (July 16, 2002); Mapoy
v. United States Postal Service, EEOC Appeal No. 01995433 (March 29,
2002) ($1,000.00 awarded in non-pecuniary damages where agency failed
to provide reasonable accommodation). Further, the amount of the award
meets the goals of not being "monstrously excessive" standing alone,
not being the product of passion or prejudice, and being consistent with
the amount awarded in similar cases.
Additionally, we find that complainant failed to provide documentation
to support her claim for the foreclosure on her home, her subsequent
bankruptcy filings and other economic harm claimed. Further, we find
these claims too tenuous for an award of damages. Upon review, we find
complainant failed to support an award of pecuniary damages.
Attorney's Fees
The Commissions regulations state that in cases where a complainant
prevails on claims alleging discrimination in violation Title VII
of the Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. �
2000e et seq. and the Section 501 of the Rehabilitation Act of 1973
(Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq. there is a
�presumption of entitlement to an award of attorney's fees.� 29 C.F.R. �
1614.501(e)(i). EEOC Regulations provide that �The amount of attorney's
fees shall be calculated using the following standards: The starting
point shall be the number of hours reasonably expended multiplied by a
reasonable hourly rate.� 29 C.F.R. � 1614.501(e)(2)(ii)(B).
In her July 2, 2003 decision, the AJ did not award attorney's fees to
complainant. The AJ noted that complainant's attorney did not respond
to her order requiring him to attend the hearing on relief and did
not contact her to let her know he was not attending. Further, the AJ
stated that complainant did not submit a request for attorney's fees.
A review of the record reveals that in her �List of Harm� referenced by
the AJ in her July 2, 2003 decision on relief, complainant did request
attorney's fees for her EEO complaint. Although complainant did not
specify the total amount of attorney's fees requested, we note that she
specified an hourly rate of $200.00 per hour and noted at least five
appointments with an attorney for her EEO complaint. Accordingly, we
vacate the AJ's decision not to award attorney's fees. The Commission
shall remand the issue regarding attorney's fees so that complainant may
be given the opportunity to provide to the agency a verified statement
of attorney's fees and costs.
Other Relief
The record reveals that both on appeal and at the hearing on relief,
complainant requested reimbursement for all leave taken as a result
of the agency's discriminatory denial of her request for reasonable
accommodation. Additionally, we note that complainant requested
reimbursement for the Leave Without Pay that she took after the agency
denied her request for reasonable accommodation to work flexiplace three
days per week at home. Upon review of the record we find that as a
result of the AJ's finding of discrimination, complainant is entitled to
reimbursement or restoration for all leave and Leave Without Pay taken
as a result of the agency's discriminatory denial of her reasonable
accommodation.
CONCLUSION
The agency's final order concerning compensatory damages is AFFIRMED.
The agency's final order concerning attorney's fees and other relief
is MODIFIED. The matter is REMANDED to the agency for compliance with
the Order herein.
ORDER
Within 30 days of the date this decision becomes final the agency shall
take the following actions:
The agency shall pay complainant $1,000.00 for non-pecuniary compensatory
damages;
The agency shall restore all leave used by complainant as a result
of the agency's denial of her request for reasonable accommodation
or compensate her for the amount of leave used. Specifically, the
agency shall determine the number of hours of leave complainant used as
a result of the denial of her request for accommodation. Complainant
shall cooperate in the agency's efforts to compute the number of hours
used and shall provide relevant information requested by the agency.
If there is a dispute regarding the exact amount of leave used, the
agency shall restore the leave for the undisputed amount or issue
complainant a check for the undisputed amount within thirty calendar
days of the date that the agency determines the amount it believes due.
Complainant may petition for enforcement or clarification for the amount
in dispute.
The agency shall reimburse complainant for all Leave Without Pay taken
by complainant as a result of its denial of her request for a reasonable
accommodation.
The agency shall notify complainant to provide a verified statement
of attorney's fees and costs itemizing the charges from her attorney,
attesting to the nature of the work performed, the attorney's hourly
rate, and the number of hours of work spent on complainant's case.
Within 30 days of receiving the fee petition, the agency shall issue a
decision on attorney's fees in accordance with 29 C.F.R. � 1614.501(e).
Complainant shall be given 30 days, after receipt of the agency's
notification, to respond to the agency's request for attorney fee
information. If complainant fails to submit this information to the
agency, then the agency may issue a decision stating that complainant
is not entitled to attorney's fees.
The agency shall post a copy of the attached NOTICE TO EMPLOYEES POSTED
BY ORDER OF THE EQUAL EMPLOYMENT OPPORTUNITY COMMISSION in accordance
with the provision herein entitled POSTING ORDER.
The agency shall provide appropriate EEO training to all agency officials
responsible for the discriminatory action in the instant matter.
Documentation of compliance with provisions 1 - 6 of this Order must
be sent to the Compliance Officer as referenced herein.
POSTING ORDER (G0900)
The agency is ordered to post at its Small Business/Self-Employed
Division, Atlanta, Georgia facility 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.
ATTORNEY'S FEES (H0900)
If complainant has been represented by an attorney (as defined by
29 C.F.R. � 1614.501(e)(1)(iii)), he/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 this
decision becoming final. 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 (K0501)
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 19848,
Washington, D.C. 20036. 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 (M0701)
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 19848,
Washington, D.C. 20036. 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 (T0900)
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 (Z1199)
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 that the Court appoint
an attorney to represent you and that the Court 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 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
__________________
Date
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
An Agency of the United States Government
This Notice is posted pursuant to an Order by the United States Equal
Employment Opportunity Commission, dated _____________________ ,which
found that a violation of Title VII of the Civil Rights Act of 1964,
as amended, 42 U.S.C. � 2000e et seq. and the Rehabilitation Act, 29
U.S.C. 791 et seq., has occurred at the Small Business/Self-Employed
Division, Atlanta, Georgia (hereinafter �facility�).
Federal law requires that there be no discrimination against any
employee or applicant for employment because of the person's RACE,
COLOR, RELIGION, SEX, NATIONAL ORIGIN, AGE or PHYSICAL OR MENTAL
DISABILITY with respect to hiring, firing, promotion, compensation,
or other terms, conditions or privileges of employment.
The facility supports and will comply with such Federal law and will
not take action against individuals because they have exercised their
rights under law.
The facility was found to have unlawfully discriminated against the
individual affected by the Commission's findings on the bases of race,
disability, and reprisal. The agency has been ordered to remedy
the discrimination by: providing complainant compensatory damages;
restoring all leave taken as a result of the discrimination; restoring
all Leave Without Pay taken as a result of the discrimination; paying
attorney's fees; and providing training to all officials involved in
the case. The facility will ensure that officials responsible for
personnel decisions and terms and conditions of employment will abide
by the requirements of all Federal equal employment opportunity laws.
The facility will not in any manner restrain, interfere, coerce, or
retaliate against any individual who exercises his or her right to
oppose practices made unlawful by, or who participates in proceedings
pursuant to, Federal equal employment opportunity law.
___________________________
Name and Title
Date Posted: _____________________
Posting Expires: _________________
29 C.F.R. Part 1614