Jade R.v.Dep't of the Interior

Equal Employment Opportunity Commission

Mar 23, 2018

EEOC Appeal No. 0720170032 (E.E.O.C. Mar. 23, 2018)

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

Jade R.,1
Complainant,

v.

Ryan K. Zinke,
Secretary,
Department of the Interior
(Office of Surface Mining Reclamation & Enforcement),
Agency.

Appeal No. 0720170032

Hearing No. 570-2015-00119X

Agency Nos. DOI-OSMRE-13-0449; DOI-OSM-14-0513;
DOI-OSM-15-0591

DECISION

Following its July 20, 2017, final order, the Agency filed a timely appeal with the Equal
Employment Opportunity Commission (EEOC or Commission) pursuant to 29 C.F.R.
§1614.403(a). On appeal, the Agency requests that the Commission affirm its rejection of an
EEOC Administrative Judge’s (AJ) finding of discrimination in violation of Section 501 of the
Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq. For the
following reasons, the Commission REVERSES the Agency’s final order.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a Surface Mining
Reclamations Specialist, GS-12, at the Agency’s facility in London, Kentucky. On January 14,
2015, Complainant filed one of several EEO complaints which were consolidated, alleging that
the Agency discriminated against her on the bases of race (White), sex (female), disability
(bipolar disorder), and in reprisal for prior protected EEO activity when:

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.
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1. on August 2, 2013, management denied her the opportunity to be a member of the
remote sensing development team;
2. on May 7, 2014, management demanded that Complainant continue working in
violation of the family and medical leave act (FMLA);
3. on May 7, 2014, management placed her in AWOL status;
4. in September 2014, management denied her the opportunity to participate in the
Agency leave share program; and
5. on March 4, 2015, Complainant became aware of a similarly situated employee
who was allowed to stay in his position after his spouse was promoted to a
supervisory position, when, in contrast, she was forced to move from her position
after her husband was offered a supervisory position in her office.

At the conclusion of the investigation, the Agency provided Complainant with a copy of the
report of investigation and notice of her right to request a hearing before an Equal Employment
Opportunity Commission Administrative Judge (AJ). Complainant requested a hearing and the
AJ held a hearing on April 19-20, 2017, and issued a decision on June 13, 2017. In her decision,
the AJ found no discrimination with respect to claims (1) - (4). The AJ also found that, with
respect to claim (5), Complainant failed to establish a prima facie case of race, sex, or reprisal
discrimination. The AJ also found, however, that Complainant established that she is a qualified
individual with a disability, and that the Agency failed to provide her with a reasonable
accommodation.

By way of relief, the AJ ordered the Agency to: (1) provide management officials with a
minimum of four hours training on their rights and responsibilities under the Rehabilitation Act,
with a focus on reasonable accommodation; (2) pay Complainant $90,000.00 in nonpecuniary,
compensatory damages; and (3) pay Complainant proven pecuniary compensatory damages. The
Agency subsequently issued a final order affirming the AJ’s finding of no discrimination with
respect to claims (1) - (4), and rejecting the AJ’s finding that Complainant proved that the
Agency denied her a reasonable accommodation in violation of the Rehabilitation Act. On
appeal, the Agency contends that the AJ erred in finding discrimination. Specifically, the Agency
argues that Complainant was not a qualified individual with a disability, and that she did not
request a reasonable accommodation. The Agency requests that we reverse the AJ’s finding and
affirm its final order.

ANALYSIS AND FINDINGS

Pursuant to 29 C.F.R. § 1614.405(a), all post-hearing factual findings by an AJ will be upheld if
supported by substantial evidence in the record. Substantial evidence is defined as “such
relevant evidence as a reasonable mind might accept as adequate to support a conclusion.”
Universal Camera Corp. v. National Labor Relations Board, 340 U.S. 474, 477 (1951) (citation
omitted). A finding regarding whether or not discriminatory intent existed is a factual finding.
See Pullman-Standard Co. v. Swint, 456 U.S. 273, 293 (1982). An AJ's conclusions of law are
subject to a de novo standard of review, whether or not a hearing was held.
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Initially, we note that Complainant has not challenged the findings of no discrimination or the
remedies awarded by the AJ. We find no reason to alter the findings of no discrimination. We
note that although the AJ allowed Complainant 14 days to submit evidence of pecuniary
damages there is no indication that such a request or submission was made by Complainant.
Furthermore, in her brief on appeal, Complainant makes no mention of pecuniary damages.
Therefore, we shall not order an award of pecuniary damages.

As to claim (5), we concur with the AJ’s finding that the Agency failed to provide Complainant
with a reasonable accommodation. In so finding, we note that the Federal Government is directed
to “be a model employer of individuals with disabilities.” 29 C.F.R. § 1614.203. Under the
Commission’s regulations, an agency is required to make reasonable accommodation to the
known physical limitations of an employee individual with a disability, unless the agency can
show that the accommodation would cause an undue hardship. 29 C.F.R. § 1630.9. Reasonable
accommodation includes modifications to the manner in which a position is customarily
performed in order to enable a qualified individual with a disability to perform the essential
functions of the position. To establish the Agency denied Complainant a reasonable
accommodation, Complainant must show that: (1) she was an individual with a disability; (2) she
was a qualified individual with a disability; and (3) the Agency failed to provide a reasonable
accommodation. See EEOC Enforcement Guidance on Reasonable Accommodation and Undue
Hardship Under the Americans with Disabilities Act, No. 915.002 (Oct. 17, 2002). Complainants
with disabilities are not entitled to the accommodation of their choice, only to an effective one.
See U.S. Airways. Inc. v. Barnett, 533 U.S. 391, 400 (2002).

Here, the record shows that Complainant was employed by the Agency beginning in November
1987, and at the time of the events at issue, she was assigned to the position of Surface Mining
Reclamations Specialist working as a Title V inspector. The record further shows that in August,
2012, after Complainant’s husband was promoted to a supervisory position, management
reassigned Complainant from Title V inspector to Title IV inspector, for the stated reason that
Complainant could not be supervised by her spouse. Following this reassignment (which, the AJ
found, Complainant objected to), Complainant’s performance began to decline until she ceased
being able to function in the position. The record shows that Complainant made repeated
requests to management for assistance with the new position, but that the Agency failed to
engage in the interactive process to determine whether there was a reasonable accommodation
available that would have allowed her to effectively perform the essential functions of the new
position.

The AJ noted that the Agency stipulated that Complainant had a disability covered under the
Rehabilitation Act. The AJ also found that the Agency was aware of Complainant’s bipolar
disorder and that Complainant had performed well in her position for over 25 years before she
was transferred. We concur with the AJ’s finding that Complainant was a qualified individual
with a disability. In so finding, we note that the discussion of “qualified” does not end at
Complainant’s position of record. The term “qualified individual with a disability,” with respect
to employment, is defined as an individual with a disability who, with or without a reasonable
accommodation, can perform the essential functions of the position held or desired. 29 C.F.R.
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§1630.2(m). The term “position” is not limited to the position held by the employee, but also
includes positions that the employee could have held as a result of reassignment. Therefore, in
determining whether an employee is “qualified,” an agency must look beyond the position which
the employee presently encumbers. EEOC Enforcement Guidance on Reasonable
Accommodation and Undue Hardship Under the Americans With Disabilities Act (Enforcement
Guidance - Reasonable Accommodation), No. 915.002 (revised October 17, 2002); see
Interpretive Guidance on Title I of the Americans With Disabilities Act, Appendix, to 29 C.F.R.
Part 1630.2(o).

In the instant case, it is clear that Complainant is a qualified individual with a disability as she
had been performing effectively in her prior position for more than twenty-five years.
Additionally, we concur with the AJ’s finding that the Agency was aware of Complainant’s
disability, and that by transferring her into a new position, the Agency created the circumstances
under which Complainant’s performance began to deteriorate. Further, when it became evident
that she was no longer able to perform the essential functions of the new position without a
reasonable accommodation, despite Complainant’s requests for assistance, the Agency failed to
engage in the interactive process. Accordingly, we conclude that the AJ’s finding that the
Agency violated the Rehabilitation Act by failing to provide Complainant with a reasonable
accommodation is supported by substantial evidence.

Finally, we address the AJ’s award of compensatory damages. Nonpecuniary damages are
available to compensate the injured party for actual harm, even where the harm is intangible.
Carter v. Duncan-Higgins, Ltd., 727 F.2d 1225 (D.C. Cir. 1984). Emotional harm will not be
presumed simply because a complainant is a victim of discrimination. The existence, nature, and
severity of emotional harm must be proved. The method for computing nonpecuniary damages
should typically be based on a consideration of the severity and duration of harm. Complainant
v. Department of Agriculture, EEOC Appeal No. 01945652 (July 17, 1995). We note that for a
proper award of nonpecuniary damages, the amount of the award should not be ‘monstrously
excessive’ standing alone, should not be the product of passion or prejudice, and should be
consistent with the amount awarded in similar cases. See Complainant v. Department of the
Interior, EEOC Appeal No. 01961483 (March 4, 1999) (citation omitted).

Here, the AJ awarded Complainant $90,000.00 in nonpecuniary, compensatory damages, finding
that the discrimination suffered by Complainant resulted in an aggravation of her preexisting
mental disability to such a degree that she needed to increase her medication, and that her
condition deteriorated to the point where she was unable to function at work and had to leave her
position. We find that given the hearing testimony and other evidence, the AJ’s award of
$90,000.00 is supported by the evidence of record and is consistent with the amount awarded in
similar cases. See Nia G. v. Department of Homeland Security, EEOC Appeal No. 0120160716
(February 6, 2018) (Commission awarded $110,000 in nonpecuniary, compensatory damages
where the Agency’s termination resulted in loss of identity, self-esteem, and great emotional
pain); Billy B. v. Department of Veterans Affairs, EEOC Appeal No. 0120132680 (November
19, 2015) (Commission awarded $85,000 in nonpecuniary, compensatory damages where
Agency denied reasonable accommodation to and discharged Complainant, which exacerbated
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his preexisting condition and caused emotional distress), request for reconsideration denied,
EEOC Request No. 0520160135 (May 12, 2016).

We shall order the Agency to comply with the AJ’s order as slightly modified herein.

CONCLUSION

The Agency’s final order finding no discrimination regarding claim (5) is REVERSED. The
complaint is REMANDED to the Agency for compliance with the Order herein.

ORDER

To the extent it has not already done so, the Agency shall take the following remedial actions:

(1) Within 60 days from the date this decision is issued, the Agency shall pay
Complainant $90,000.00 in nonpecuniary, compensatory damages.
(2) Within 90 days from the date this decision is issued, the Agency shall provide a
minimum of eight hours of in-person or interactive training to all responsible
management officials found to have discriminated against Complainant regarding
their responsibilities under the Rehabilitation Act, with a special emphasis on
reasonable accommodation.
(3) Within 60 days from the date this decision is issued, the Agency shall consider taking
disciplinary action against all responsible management officials found to have
discriminated against Complainant. The Agency shall report its decision to the
Commission. If the Agency decides to take disciplinary action, then it shall identify
the action taken. If the Agency decides not to take disciplinary action, then it shall set
forth the reasons for its decision not to impose discipline.

The Agency shall 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).
POSTING ORDER (G0617)
The Agency is ordered to post at its London, Kentucky facility copies of the attached notice.
Copies of the notice, after being signed by the Agency's duly authorized representative, shall be
posted both in hard copy and electronic format by the Agency within 30 calendar days of the
date this decision was issued, and shall remain posted for 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.

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The original signed notice is to be submitted to the Compliance Officer as directed in the
paragraph entitled “Implementation of the Commission’s Decision,” within 10 calendar days of
the expiration of the posting period. The report must be in digital format, and must be submitted
via the Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g).

IMPLEMENTATION OF THE COMMISSION’S DECISION (K0617)
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 in the digital format required by the Commission, and submitted via
the Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). 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 (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 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. 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
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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).

COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (R0610)
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 (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.