01971885
09-18-2000
Jeanne M. Durrant, Complainant, v. Togo D. West, Jr., Secretary, Department of Veteran's Affairs, Agency.
Jeanne M. Durrant v. Department of Veteran's Affairs
01971885
September 18, 2000
Jeanne M. Durrant, )
Complainant, )
) Appeal No. 01971885
v. ) Agency No. 95-1152
)
Togo D. West, Jr., )
Secretary, )
Department of Veteran's Affairs, )
Agency. )
)
DECISION
INTRODUCTION
Complainant timely initiated an appeal from a final agency decision (FAD)
concerning her complaint of unlawful employment discrimination on the
bases of sex (female) and physical disability (polio), in violation of
Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e
et seq. and the Rehabilitation Act of 1973, as amended, 29 U.S.C. � 791,
et seq.<1> Complainant alleged she was discriminated against when her
supervisor: (1) applied work-related and non work-related standards to her
that he did not apply to her non-disabled male colleagues; (2) subjected
her to a level of scrutiny that was �unparalleled� and �irrational�;
(3) directed her to perform tasks that he never directed her non-disabled
male colleagues to perform; and (4) forced her to perform physical tasks
that he knew she was unable to perform. The appeal is accepted pursuant
to 64 Fed. Reg. 37,644, 37,659 (1999)(to be codified at 29 C.F.R. �
1614.405). For the following reasons, the agency's decision is REVERSED
and REMANDED.
In its final decision, the agency found that the issue in the case was
whether complainant was discriminated against on the bases of sex and
disability with regard to her work assignments and supervision, and
whether she should have been provided a reasonable accommodation. As an
initial matter, we find it necessary, given the facts of the case, to note
that this complaint was not correctly defined by the agency in its final
decision. Rather, we find, based upon a review of the EEO Counselor's
Report, the formal complaint and affidavits, that complainant's complaint
is properly construed as one which alleges discrimination on the basis
of sex (female), when her new supervisor (male, no disability)(Officer)
applied work related, as well as non-work related standards and tasks
which were not similarly applied to complainant's male colleagues.
Complainant also alleged that the Officer subjected her to a level of
scrutiny which was unparalleled, and assigned her tasks which were
beyond her physical limitations. Finally, complainant alleged that
the agency discriminated against her on the basis of disability (polio)
when it failed to accommodate her disability by assigning her additional
tasks outside of her physical limitations, and failed to provide her
with necessary office equipment.
BACKGROUND
The record reveals that during the relevant time, complainant was employed
as a Counseling Psychologist, at the agency's Vocational Rehabilitation
and Counseling Division (VR & C), Rochester New York. Believing she
was a victim of discrimination, complainant sought EEO counseling and,
subsequently filed a formal complaint on December 29, 1994. The agency
accepted the above four issues and conducted an investigation.<2> At
the conclusion of the investigation, the investigator recommended a
finding of discrimination.
The agency then notified complainant that a supplemental investigation
would be conducted as there had been no testimony by agency officials.
After the testimony of a management official, the agency concluded the
supplemental investigation, finding no discrimination. Complainant
was then informed of her right to request a hearing before an EEOC
Administrative Judge or alternatively, to receive a final decision
by the agency. Complainant did not request a hearing, and the agency
proceeded to issue a final decision.
Complainant's Disability
The record reveals that complainant was infected with infantile paralysis
(polio) as a child. She testified that she has had three surgeries which
have left her with the ability to walk without a brace, however there
have always been limitations on her ability to walk. Over time, and as
a consequence of her polio, she has developed arthritis and degeneration
of the spine, and has had her right hip replaced. In addition, she
suffered injuries to her shoulders and both wrists, which coupled with
the effects of polio, have made it very difficult to lift and carry
items. Complainant testified that she does not have a lot of strength in
her legs and her balance is often uncontrollable. Complainant testified
that she suffers from chronic pain, and that getting up and down from
a seated position is very difficult for her. She currently walks with
Canadian Crutches, although the record reveals that at times relevant
to the instant complaint, complainant utilized a wheelchair. The agency
does not dispute that complainant is an individual with a disability.
Complainant's Work Environment
The VR & C Division is located in Buffalo, NY, with regional offices in
Syracuse and Rochester. Complainant worked at the Rochester office.
The Buffalo location employs the Officer, one Counseling Psychologist
(CP #1)(male)(no disability), two other males, and three females, who
worked as either Vocational Rehabilitation Specialists or support staff.
The Syracuse office has one CP (CP #2)(male)(no disability) as well as two
other male employees who worked as Vocational Rehabilitation Specialists.
Complainant worked in the Rochester office with one other individual, who
did not work for the VR & C. Complainant was the only female professional
in the VR & C Division. It appears from the record that the location of
the Rochester office, which was in the Federal Building in Rochester,
NY, was temporary in nature. There is no indication in the record,
however, that this location has changed since the events in question.
Increased Scrutiny and New Duties Assigned to Complainant
A) Search for Office Space and Computer Duties
In September of 1994, the Officer became the Vocational Rehabilitation
and Counseling Officer and complainant's new supervisor. On October 7,
1994, the Officer came to the Rochester office to introduce himself.
During this meeting, complainant and the Officer spoke about the temporary
location of the Rochester Office and the problems complainant encountered
at the location. Complainant averred that during this conversation,
the Officer instructed her to look into alternate work space for the
office in Rochester. Although complainant was surprised at this request
as this was not one of her duties as a Counseling Psychologist, she did
begin to investigate a new location for the office.
Also during this meeting, the Officer told complainant that he had
developed a new computer system which she needed to use, as it would
facilitate case processing. Complainant testified that she was never
trained on the use of this program, that the program never worked
appropriately on her computer, and that it caused associated problems
on her computer which impeded her regular duties. Complainant testified
that neither CP #1 nor CP #2 were required to utilize this new computer
program.
On October 18, 1994, the Director of the Regional Office (Director)(male,
no disability) visited Complainant's office. During this visit,
complainant spoke with the Director about her search for new office space.
Complainant averred that once the Director learned that she had been
charged with such activity, he ordered her to stop the exploration.
Then, on October 24, 1994, the Officer instructed complainant to continue
with the office space investigation, and told complainant that he �felt
compromised� that complainant spoke with the Director because he hadn't
planned on telling the Director about the plan for new office space.
The record reveals that later, after the Director spoke with the
Officer, the Officer indicated to complainant that any exploration for
new office space was indeed, �on hold.� Complainant averred that this
entire experience left her feeling stressed and confused as she was
told conflicting orders by her superiors. Furthermore, the project
was very time consuming and left her little time for her to perform her
regular duties. Complainant averred that neither CP #1 nor CP #2 were
charged with such a duty.
B) Caseload Scrutiny
Over the course of the next few months, complainant believed that the
Officer repeatedly called her early in the morning in order to �check
up on her� and make sure she was in the office. Furthermore, during
the month of November 1994, the Officer notified complainant that she
was not following agency regulations that required her to organize her
files by appointment date, instead of alphabetically. Additionally,
the Officer told complainant that she was violating agency regulations
by not scheduling a new appointment for each veteran at the end of each
counseling session. Complainant told the Officer that she was unaware of
such regulations. Complainant averred that it was only later, after the
Officer spoke with CP #2 and found out that he also organized his files
alphabetically, did the Officer permit complainant to do the same.
On November 8, 1994, complainant received a memorandum from the Officer,
which instructed all CP's to provide him with detailed case status reports
on their entire workload. The memorandum stated that all reports had
to be submitted to the Buffalo office by close of business on November
14th, which was the following Monday. According to complainant, although
all CP's were instructed to generate the reports, she was the only one
instructed to compose the reports on the computer by using a specific
computerized form. She averred that the preparation of the reports was
very time consuming, and that she was left her with only a day and a
half to complete them, whereas others had a longer time to finish the
reports since they received the memo by hand, rather than by mail.
According to complainant's affidavit, this task was very difficult for her
and caused her pain as it involved carrying items, including heavy files.
Furthermore, the task was difficult for her as it involved getting up
and down from her seat, carrying files from her cabinet to her desk,
all of which caused her great pain. Complainant averred that she got
as much of the assignment done as possible, and mailed what she had
completed to Buffalo.
When complainant returned from the weekend on November 14th, she continued
to work on the assignment. However, on that day, the Officer phoned
complainant and asked her where the reports were. Complainant averred
that she informed the Officer that she had completed what she could,
but that she would send him the rest as soon as possible. According to
complainant, the Officer spoke to her in a very stern voice and she
could tell he was very angry.
C) The Files
The following day, the Officer phoned complainant and ordered her to
gather her entire caseload, which was roughly 125 cases. The Office
informed her that he would be in Rochester for a meeting, and would take
the files back with him to Buffalo on November 16th, 1994. Complainant
stated that the Officer would not provide her with an explanation
for this request. She then called CP #1, complainant's counterpart in
Buffalo, and asked him if the Officer had made a similar request of him.
CP #1 responded that the officer had not made such a request of him,
and stated that he was surprised to hear of such a request, as a full
review of cases usually only happens if there is planned punitive action
against an employee.
As such, complainant became very concerned and contacted the Acting Chief,
Human Resources Management Division (Acting Chief)(female, no disability).
She informed the Acting Chief of the actions of the Officer. In response,
the Acting Chief told complainant that she would speak with the Director
and get back to her. After speaking with the Director, the Acting
Chief informed complainant that the Director had assured her there was
no pending punitive action against her, and to follow the orders of the
Officer, lest she be accused of insubordination. The Acting Chief's
affidavit corroborated that of complainant's.
According to complainant, the process of gathering the files for review
was very painful as it required her to line up her chairs in her office
in order to balance herself, as she was unable to use her crutches.
If she dropped a stack of files on the floor, an office-mate came in to
help her, although it was not within his responsibilities. With the
co-worker's help, she was able to accomplish this task, despite great
difficulty and pain.
When the Officer arrived in Rochester for a group meeting, he came into
complainant's office and ordered her to re-organize the files with the
reports she had submitted. Complainant stated the Officer was obviously
aware she could not bend over, use both hands, and then straighten herself
back up. Others who were in town for the meeting assisted complainant
with this task. At the conclusion of the meeting, the Officer placed
the files into plastic grocery bags and had co-workers bring them back
to Buffalo. The record is not disputed that complainant was the only
one instructed to gather her files for review.
Complainant later learned her files were sent to another office for
further review. At some point subsequent to the filing her informal EEO
complaint, complainant spoke directly with the Director about her files.
The Director told complainant that once he found out that the Officer
had collected complainant's files, he had them returned to her.
Soon thereafter, complainant's case files were in fact returned to her.
According to complainant, the files arrived in plastic grocery bags,
were not bound together, and did not contain the transmittal slips
necessary to determine the location of each file. She averred that the
bags tore and papers fell all over the floor, and she was not provided
any assistance. Complainant began the immense task of again reviewing
each file in order to determine its status, and then place them back
into her filing cabinets. At the same time, she was required to continue
counseling veterans, sometimes without their file, as it may have still
been in a grocery bag. Complainant averred that this duty was beyond her
normal capabilities as it required her to work on the floor and get up
and down repeatedly, which caused her much pain. Moreover, complainant
averred she sent a memorandum to the Officer alerting him to the fact
that she was experiencing pain in accomplishing these duties.
November 28, 1994 Memorandum
On November 28, 1994, complainant received a memorandum from the Officer
dated November 18, 1994. Therein, the Officer instructed complainant
to submit, among other things, weekly reports to him on her upcoming
appointment schedule, based on a computer program that she was supposed
to develop herself.<3> Furthermore, he instructed her to complete all
report evaluations and narratives by using the computer, as opposed
to dictating such reports, which she had always done in the past.
The record is not disputed that neither CP #1 nor CP #2 were sent this
memo; rather both were permitted to continue dictating their reports.
Complainant testified that these new duties placed tremendous stress
on her as she was now working on administrative tasks more often than
her counseling duties, which caused a backlog. Complainant subsequently
contacted an EEO Counselor and initiated this complaint.
2) Reasonable Accommodation
Complainant averred that her office work station was not accommodated
despite repeated requests. The record reveals that as early as October
1994, complainant asked the Officer for a two drawer file cabinet so
she would not have to get up and down from her desk in order to access
her files. On November 29, 1994, she requested an update on the status
of that request. Also contained in that November 29, 1994, memo was
a request for an update on her November 16, 1994, request for a more
appropriate work station. Among other things, complainant averred that
since her computer was located on her credenza, she needed to place her
crutches on each side of her chair in order to have something to balance
her case file on while reviewing it. Nothing in the record indicates
that any of complainant's requests for accommodation were substantively
acknowledged.
During the month of November and December 1994, complainant sent the
Officer several memoranda informing him that she was experiencing
difficulties. Specifically, on December 5, 1994, she told the Officer
that the constant bending related to the replacement of her files caused
her back pain, and that her health was being medically compromised.
According to complainant's affidavit, she needed to work on the floor
in order to continue the task.
There is evidence in the record that complainant continued to seek
accommodations as late as April and May 1995. Specifically, by memorandum
to the Officer, complainant requested that the agency provide her with a
two drawer file cabinet, appropriate work station, swinging keyboard, as
well a floor mat so that her chair could move smoothly across the floor.
Complainant testified that she has never received a response from the
Officer or the Director related to her requests.
Co-Worker's Affidavits
Also contained in the record are 15 affidavits from complainant's
co-workers, who describe complainant as an exceptional employee who was
targeted for poor treatment by the Officer. Although the co-workers
averred that most individuals in the office were treated poorly by the
Officer, the vast majority agree that complainant received the brunt
of this treatment. The majority of the affidavits express the belief
that the Officer could not supervise women, and targeted complainant
because of her sex and/or disability. All of the affidavits mentioned
complainant's emotional distress and stress that she suffered as a
result of the Officer's treatment. The affidavits from the two other
CP's corroborate complainant's testimony that she was assigned the above
additional duties whereas they were not. Furthermore, an affidavit
in the record reveals that the Officer's former secretary (female)(no
disability) initiated an informal complaint of harassment against the
Officer in late October 1994, and that she was transferred out of the
office in response thereto. There is no indication that the Officer
was disciplined for his actions related to this co-worker.
Management's Response to Complainant's Allegations
Both the Director, as well as the Assistant Director (male, no
disability), averred that the Officer was terminated from his employment
with the agency in June 1995. According to the testimony of the Assistant
Director, who was the Officer's first level supervisor, the Officer was
terminated for failing to meet a critical element, that being, �Program
Direction and Implementation.� Contained in the record is the Officer's
last performance appraisal wherein he received an �unacceptable� rating
in that critical element.
The Officer did not submit an affidavit during the investigation, although
he was repeatedly requested to do so. Instead, his psychologist submitted
a note which has largely been redacted.
That which remains reads:
if exposed to difficult, demanding or otherwise stressful circumstances,
including those which could very well occur in the work environment,
there is a distinctly marked risk that [the Officer] could encounter such
difficulty.
The letter goes on to add, �...including those that could be posed by
work, should be steadfastly avoided.� Report of Investigation (ROI)
at C-16.
As such, the only affidavit in the record which articulates management's
response to complainant's allegations is that of the Director, which was
filed during the supplemental investigation. The Director testified in
his affidavit that he knew of problems in the office as they pertained
to the Officer, and attempted to correct those problems. In response to
complainant's allegations, the Director largely stated that the Officer
was responsible for the actions alleged.
The Director acknowledged that complainant contacted him regarding her
concerns about her files, and averred that he instructed the Acting
Director of Human Resources to intervene. Furthermore, he offered
testimony that, to the best of his knowledge, the Officer requested
the files because complainant failed to submit a case status report by
the deadline. Moreover, a review of the workload was necessary at that
time in order to determine the accuracy of the workload and efficiency
of operations.
With respect to complainant's allegation that she was denied alterations
to her work space as an accommodation, the Director testified that he did
not recall when complainant first made a request to him for such changes.
However, after a review of his affidavit, it is evident that complainant
requested a two drawer file cabinet and spoke to him about her office
space in October 1994.
In its FAD, the agency concluded that complainant established a prima
facie case of sex and disability discrimination. However, the agency
also concluded that the agency proffered legitimate, nondiscriminatory
reasons for its actions, which will be discussed in more detail below.
Finally, the agency found that complainant had failed to show these
reasons were a pretext for discrimination. Complainant submits no
contentions on appeal, and the agency requests that we affirm its FAD.
ANALYSIS AND FINDINGS
Sex Discrimination
A claim of disparate treatment is examined under the three-part analysis
first enunciated in McDonnell Douglas Corporation v. Green, 411 U.S. 792
(1973). For complainant to prevail, she must first establish a prima
facie case of discrimination by presenting facts that, if unexplained,
reasonably give rise to an inference of discrimination, i.e., that a
prohibited consideration was a factor in the adverse employment action.
McDonnell Douglas, 411 U.S. at 802; Furnco Construction Corp. v. Waters,
438 U.S. S67 (1978). The burden then shifts to the agency to articulate a
legitimate, nondiscriminatory reason for its actions. Texas Department of
Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). Once the agency
has met its burden, the complainant bears the ultimate responsibility
to persuade the fact finder by a preponderance of the evidence that
the agency acted on the basis of a prohibited reason. St. Mary's Honor
Center v. Hicks, 509 U.S. 502 (1993).
After a review of the record, we find complainant established a prima
facie case of discrimination on the basis of sex when she was subjected
to work related and non-work related standards that her male colleagues
were not, and when she was subjected to higher level of scrutiny than that
of her male colleagues. In so finding, we note again that there is no
dispute in the record that complainant was ordered to perform additional
duties that were not required of her male colleagues. Specifically,
complainant was required to look for new office space, type her reports
instead of dictating them, and pull her entire caseload for review, only
to have to replace it days later. Furthermore, the record reveals that
complainant, the only female professional in the division, suffered more
intense scrutiny than her male colleagues. Specifically, the Officer
referred complainant to alleged agency regulations regarding the manner
in which she organized her files. It was only after the Officer found
out that CP #2 did not organize his files according to appointment date
did the officer agree to allow complainant to file them alphabetically.
Furthermore, after reviewing the affidavits contained in the record, we
find substantial evidence that such actions were based on complainant's
sex. Most of the affiants believed complainant was being targeted because
of her gender. The Officer's new secretary (female) testified that the
Officer repeatedly requested her to double check complainant's work,
but stated that �the other guys were ok.� In sum, the preponderance of
the evidence reveals that the Officer took the aforementioned actions
because of complainant's sex.
As noted above, complainant's supervisor failed to file an affidavit
in this matter as his psychologist reported that he should avoid work
related matters. We therefore turn to the proffered reasons contained
in the agency's final decision. Therein, the agency found that male
CPs were permitted to dictate their reports because of a larger volume
of cases than complainant's. The agency also found that complainant
was in fact assigned the duty of finding new office space, but that
once the Director discovered that she had been assigned this task, he
abandoned that request. Furthermore, the agency found that all CP's
files were reviewed and that her files were collected on that day due to
a staff meeting at the Rochester location that day. Moreover, the agency
contends that complainant never requested assistance in reviewing her
files. In sum, the agency found that management articulated legitimate
nondiscriminatory reasons for its actions.
After a review of the final decision, as well as of the record as a
whole, we find that the agency only marginally satisfied its burden of
articulating legitimate, nondiscriminatory reasons for its action.<4>
Specifically, we find that the Director's testimony that relates to
complainant's allegations is insufficient to carry the agency's burden.
We also find his testimony was largely not credible. For example,
the Director averred that once he found out about the request that
complainant gather all her files, he asked the Acting Director for Human
Resources to intervene. However, complainant's testimony and that of the
Acting Director reveals that the Director in fact referred complainant
to the rules of insubordination, and only had her files returned to her,
without assistance.
The final decision also found that complainant was required to type
reports rather than dictate them, as complainant's male colleagues were
permitted to do. Although the Director testified at length regarding
the breakdown in caseloads between the CPs, the agency failed to provided
any specific number of cases that each CP worked on in order so that we
could determine that there was such a great disparity in the workload,
that the dictation was justified only for the male CPs.
The Director averred that complainant's files were collected and reviewed
because she failed to submit a case status report by the deadline.
We find this explanation is not credible and is inconsistent with
other testimony as well as with the Director's own prior actions.
The Director stated that once he learned the files had been requested,
he told the Acting Director of Human Resources to �intervene� and then
ordered the files returned. Furthermore, complainant averred that
when she contacted the office which had her files, she was told that
the Director had instructed them that the files should be returned,
and that they had been requested �by mistake.� Based on this testimony,
we find that the Director did not approve of the Office's file request.
This posture is therefore not consistent with his current position that
the files were requested for acceptable reasons. We therefore find his
reasons are not credible and are pretext for discrimination.
After a careful review of the record, we find that the agency's reasons,
as articulated by the Director, are not credible, and that complainant has
proven, by a preponderance of the evidence, that she was discriminated
against on the basis of sex when she was ordered to perform additional
duties, and subjected to more scrutiny than her male colleagues.
Reasonable Accommodation
To bring a claim of disability discrimination, complainant must first
establish that she has disability within the meaning of the Rehabilitation
Act. Murphy v. United Parcel Service, Inc., 119 S.Ct. 2133 (1999); Sutton
v. United Air Lines, Inc., 119 S.Ct. 2139, 2141-42 (1999); Albertsons,
Inc., v. Kirkingburg, 119 S.Ct. 2162, 2167-68(1999). An individual with
a disability is one who has, has a record of, or is regarded as having
a physical impairment that substantially limits one or more of his
major life activities. 29 C.F.R. � 1630.2(g). Major life activities
include functions such as self care, performing manual tasks, walking,
seeing, hearing, speaking, breathing, learning, and working. 29 C.F.R. �
1630.2(j). The agency concedes in its final decision that complainant
is a person with a physical disability as defined by the Rehabilitation
Act. We agree. Complainant, who has polio, is substantially limited
in the major life activity of walking since she walks with crutches,
and has always had difficulty walking and maintaining her balance.
The agency also acknowledges that complainant was "qualified" to perform
the essential functions of her position as a Counseling Psychologist.
Complaint is therefore within the protection of the Rehabilitation Act.
Federal agencies must make reasonable accommodation for the known
physical and mental limitations of a qualified disabled employee,
unless the agency can demonstrate that accommodation would prove to be
an "undue hardship." 29 C.F.R. � 1630.9. When an individual decides
to request an accommodation, the individual must let the employer know
that she needs an adjustment or change at work for a reason related to
a medical condition. To request accommodation, an individual may use
�plain English� and need not mention the Americans With Disabilities Act
or the phrase �reasonable accommodation.� See Enforcement Guidance:
Reasonable Accommodation and Undue Hardship Under the Americans With
Disabilities Act, EEOC Notice No. 915.002 (March 1, 1999).
The record reveals that in October 1994, complainant requested a
two-drawer file cabinet and on November 29, 1994, sent a memorandum to the
Officer wherein she requested an update on this request. Furthermore, on
November 29, 1994, she also reiterated her request of November 16, 1994,
regarding an appropriate work station for her computer. On December 5,
1994, complainant told the Officer, what could only have been obvious,
that she was experiencing pain and was having difficulties returning her
files to their original locations. The record also reveals that as late
as April and May 1995, complainant continued to request accommodations.
However, she averred that her requests for a new computer work station and
rolling surface for her office were ignored by the Officer. Moreover,
she averred that she e-mailed the Director and Acting Director of
Human Resources alerting them to the fact that she was back to using
a wheelchair due to the exacerbation of her condition. At that time,
the Officer contacted complainant and requested her to send a request
for accommodation to him again. However, complainant reports that these
requests were again ignored, as she is still without the equipment.
Although the Director testified that he cannot recall when complainant
first requested appropriate office space equipment, he did seem to
acknowledge in his affidavit that he became aware of her requests in
October 1994. Once he became aware of this request, he testified that he
referred this matter to the Officer, and admits he failed to follow up.
Furthermore, he also testified that he knew of the situation concerning
complainant's files, but assumed others would help her.
We also note that there is no evidence whatsoever in the record that the
Officer received any instruction from the Director about complainant's
complaints regarding her inability to perform the additional duties,
or her inappropriate workplace. The record is devoid of any evidence
that training was given to the Officer regarding his responsibilities and
duties under the Rehabilitation Act. Furthermore, although the Officer
was in fact terminated for failure to meet a critical element in June
1995, some eight months after complainant first complained to Human
Resources, there is no indication of any discipline levied against the
Officer for his specific actions.
Based upon a review of the evidence, the Commission finds that the
agency failed in its affirmative duty to provide complainant with a
reasonable accommodation. In essence, the evidence overwhelmingly
supports complainant's contention that the Officer, as well as the
Director, ignored complainant's repeated requests for alterations to
her work site. Although the agency maintains in its final decision
that complainant never requested an accommodation, we find that she has
produced sufficient evidence of such requests by way of her memoranda,
wherein she repeatedly requested status updates on prior requests.
Furthermore, we note that complainant need not use �magic words� when
requesting an accommodation; here, the agency admits in its final decision
that it was well aware that she was having problems performing her duties,
yet it failed to provide her with the equipment she needed. Finally,
we note that both the Director and Officer were aware of complainant's
need to gather her entire caseload files; common sense dictates that an
individual on crutches due to polio would need assistance in reviewing,
collecting, and stacking 125 cases in the short period of time that
complainant was allotted.
In this case, the agency makes no showing that providing complainant with
a two drawer file cabinet, computer work station, swing out keyboard,
desk floor mat, and assistance replacing her files, would have imposed an
undue hardship on its operation. Based on these facts, the Commission
finds that the agency violated the Rehabilitation Act when it denied
complainant's requested changes to her work site, and when it denied
her an accommodation for the new duties imposed on her by the Officer.
Accordingly, as we have found that the agency discriminated against
complainant, we now turn our analysis to complainant's claim for
compensatory damages.
Compensatory Damages
A) Legal Standards for an Award of Compensatory Damages
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. �1981
a(b)(3). 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. Id. In West v. Gibson, 119 S. Ct. 1906 (1999),
the Supreme Court held that Congress afforded the Commission with the
authority to award such damages in the administrative process.
The particulars of what relief may be awarded, and what proof is necessary
to obtain that relief, are set forth in detail in EEOC Notice No. 915.002,
Compensatory and Punitive Damages Available Under Section 102 of the Civil
Rights Act of 1991 (July 14, 1992). 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. Dept. 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. EEOC Notice No. 915.002 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.
In Carle v. Dept. of the Navy, the Commission explained that "objective
evidence" of non-pecuniary damages could include a statement
by the complainant explaining how he or she was affected by the
discrimination. EEOC Appeal No. 01922369 (January 5, 1993). Statements
from others, including family members, friends, and health care
providers could address the outward manifestations of the impact of the
discrimination on the complainant. Id. The complainant could also submit
documentation of medical or psychiatric treatment related to the effects
of the discrimination. Id.
B) Evidence of Causation
Complainant averred that the agency's assignment of extra duties which
were outside of her physical abilities, when it did not similarly
do the same for her male colleagues, as well as the agency's failure
to accommodate her disabilities caused her great emotional distress,
stress and depression, and required her to be placed on anti-depressant
medication. She further stated that during the relevant time, she
suffered headaches, weight gain, insomnia, crying spells, anxiety and
nausea. Complainant averred that she was so distraught during this time
that she was unable to celebrate Christmas in the manner she normally did,
which included cooking and decorating her house. Physically, complainant
suffered an increase in her high blood pressure which required an increase
in her medication. Most significantly, complainant averred that the
duties she was ordered to do were outside of her medical capabilities,
and thus, caused a deterioration in her condition which has left her
working in a wheelchair. Complainant testified that:
I continued to see [her physicians] more frequently than I had before
because, my physical condition has not rebounded to what it had been
previously. In fact, it is significantly worse in terms of the pain
and level of actual tolerance for any activity. It has worsened to
the extent that when I do any kind of shopping, [sic] grocery store,
even the discount stores, anything along that line I must use one of
the electric carts because I don't have the tolerance to get all the
way through the shopping. This is different than it was before.
Complainant's affidavit at 25.
She also testified that, �it is pretty evident that I will never return
to the physical level that I had been previously.� Complainant testified
that her physician gave her a prescription for a wheelchair for a five
week period due to the deterioration of her overall condition. However,
according to complainant's testimony, she still uses the wheelchair while
at work. Even a cursory view of complainant's testimony reveals that the
duties imposed on her, which were outside of her physical abilities and
not accommodated by the agency, caused complainant significant physical
problems, tremendous pain and emotional distress. She stated:
I advised [her physician] that [the pain in her shoulders] was due to
the fact that when my cases were returned to me in plastic bags and they
were on the floor, I was offered no assistance in trying to arrange them,
it was necessary for me to get on the floor and actually work through
the cases. Since I can't crawl, it was necessary for me to scoot along
using my arms and my hand lifting my body up and shoving along, similar
to what someone who is a parapalegic might do.
Complainant's affidavit at 25.
Complainant also averred that she suffered humiliation by the agency's
actions. Specifically, she, as well as other co-workers, testified
that the Officer made a remark during a meeting that was well known to
be directed at complainant. Furthermore, complainant testified that
when her files were removed, she was unable to properly counsel her
clients as she was without their files. She testified that this caused
her embarrassment and great stress.
Testimony from complainant's co-workers revealed that prior to the events
in question, complainant was a very strong, independent, �nineties
woman� with an outgoing and bubbly personality. However, shortly
after the Officer took over, they noticed a change in complainant.
Specifically, they described that complainant became tense, emotional,
and found that they �couldn't talk with [her] without [complainant]
crying.� Nearly all of complainant's witnesses testified that they
witnessed complainant's stress and emotional distress during this time,
and they attributed it to the actions of the Officer.
Most significantly, many witnesses testified that complainant's overall
physical condition had deteriorated significantly since the events in
question, and had not improved since then. One witness testified:
I'd also like to express my concern because [complainant] has not
recovered fully from this episode. The work load, the stress, the pain,
she has not bounced back. Her health is not the same as it was years ago.
She continues to seek treatment for those things, for pain and orthopedic
difficulties, but its taken a toll and it continues with her....she's
paler. She's moving slower now. She has to take pain medication now.
Her walks are shorter. Orthopedically, she's a lot more limited in her
ability to be independent and move around.
ROI at B-8.
The record also contains documentation from complainant's physicians,
describing the physical and emotional difficulties complainant experienced
in response to the increase in duties at work. Complainant's chiropractor
reported that, �this recent exacerbation of acute, lumbo-sacral pain
disability appears to be directly related to a change in requirements in
her job activities.� ROI at C-6. Complainant's regular physician stated
that complainant suffered from depression due to work related stress,
which required her to take anti-depressant medication. Furthermore,
he describes that complainant has been less able to ambulate, and
has therefore gained a substantial amount of weight. Complainant's
orthopedist prescribed a wheelchair for complainant's use, and stated
that other modifications of complainant's workplace would be necessary.
Based on the entire record before us, we find that complainant has
established that she suffered physical and emotional distress as the
result of treatment she received by her supervisor, as well as from his
bad faith failure to accommodate her disability. Accordingly, we find
that complainant is entitled to an award of compensatory damages for
the agency's discriminatory actions.
C) Calculation of Damages Payable
1. Past Pecuniary Damages
Complainant testified that she sought medical treatment for chiropractic
care due to back pain associated with her injuries. Furthermore, she
submitted documentation from office visits to her physician relating to
her depression. Finally, complainant submitted documentation relating to
her office visits to her orthopedist. In total, complainant stated that
she incurred $636.00 in out-of-pocket medical expenses. Accordingly,
the Commission finds that complainant has established her entitlement
to past pecuniary damages in the amount of $636.00, which the agency
will pay to complainant in accordance with the order below.
2. Future Pecuniary Damages
Complainant neither requested nor submitted evidence in connection with a
claim for future pecuniary damages. However, we find that the evidence
overwhelmingly supports the notion that complainant will continue to
suffer the affects of the discriminatory treatment she received at
the agency. Furthermore, there is no indication in the record that
complainant was given adequate notice of her right to submit documentation
for these expenses. Without the full documentation, the Commission cannot
properly calculate complainant's award for these expenses. See Turner
v. Interior, EEOC Appeal No. 01956390 (April 27, 1998). Accordingly,
the agency will conduct a supplementary investigation pursuant to the
order below in order that complainant may submit documentation supporting
her claim for future pecuniary damages.
3. Non - Pecuniary Damages
Complainant has requested $150,000 in non-pecuniary damages. There are
no "hard and fast" rules governing the amount to be awarded. However,
non-pecuniary damages must be limited to the sums necessary to compensate
the injured party for actual harm, even where the harm is intangible,
see Carter v. Duncan - Hogans, Ltd., 727 F.2d 1225 (D.C. Cir. 1994),
and should take into account the severity of the harm and the length
of time that the injured party has suffered from the harm. Carpenter
v. Dept. of Agriculture, EEOC Appeal No. 01945652 (July 17,1995); EEOC
Notice No. 915.002 at 14.
We also note that the Commission applies the principle that "a tortfeasor
takes its victims as it finds them." Wallis v. U.S. 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 v. United States Postal Service,
EEOC Appeal No. 01950510 (November 13, 1995) (citing Maurer v. United
States, 668 F.2d 98 (2d Cir. 1981); Finlay v. U.S. Postal Service,
EEOC Appeal No. 01942985 (April 29, 1997).
However, the fact that complainant suffered from a pre-existing
condition in and of itself should not serve to reduce the amount of
compensatory damages she suffered where, as here, there has been no
showing that complainant suffered from the aforementioned aggravated
physical manifestations of that condition prior to the discrimination.
Here, the agency has not even argued that complainant suffered from pain
due to her illness prior to the discrimination. Rather, the evidence
overwhelmingly supports the notion that complainant was otherwise
physically well and pain free prior to the discrimination. As such,
we note that our award of compensatory damages was not reduced based on
complainant's pre-existing condition, since we find insufficient evidence
that complainant's aggravated pain and suffering was caused by factors
other than the discrimination.
The amount of compensatory damages awarded by the Commission has varied
accordingly to the injury sustained by the complainant in each case:
Bernard v. Dept. of Veterans Affairs, EEOC Appeal No. 01966861 (July 17,
1998) ($80,000.00 award for emotional distress caused by a long term
denial of reasonable accommodation and a discriminatory nonselection
where numerous witnesses testified regarding negative effects on the
complainant's emotional and physical health); Terrell v. Dept. of
Housing and Urban Development, EEOC Appeal No. 01961030 (October
25, 1996) ($25,000 award for emotional harm where discriminatory
activity exacerbated, for at least two years, problems unrelated to
discrimination); Smith v. Dept. Of Defense, EEOC Appeal No. 01943844
(May 9, 1996) ($25,000 award for emotional harm, where many aggravating
factors not related to discrimination also were present); Johnson
v. Dept. of the Interior, EEOC Appeal No. 01961812 (June 18, 1998) (award
of $35,000 for diagnosed depression); Wallis, EEOC Appeal No. 01950510
($50,000 award for aggravation of pre-existing emotional condition, where
effects were expected to last at least seven years); Carpenter, EEOC
Appeal No. 01945652 (award of $75,000 for emotional distress resulting
in complainant's disability retirement); Finlay v. U.S. Postal Service,
EEOC Appeal No. 01942985 (April 29, 1997) ($100,000 award for emotional
injury resulting in indefinite total disability).
Taking into account the evidence of non-pecuniary damages submitted
by complainant, the Commission finds that complainant is entitled to
non-pecuniary damages in the amount of $70,000. This amount takes into
account the severity and duration of the harm done to complainant by
the additional duties imposed on her, as well as the agency's repeated
failure to accommodate her. Furthermore, we note that this sum is meant
to compensate complainant for the aggravation of her illness, caused
entirely by the agency's discriminatory actions. Most importantly, this
award is meant to compensate complainant for the physical manifestations
of the discrimination which have, according to evidence in the record,
rendered her to a wheelchair. However, this amount takes into account
that, unlike cases where greater damages were awarded, complainant's
injury did not render her totally incapacitated either for work or in
her personal life. Finally, this amount meets the goals of not being
motivated by passion or prejudice, not being "monstrously excessive"
standing alone, and being consistent with the amounts awarded in similar
cases. See Cygnar v. City of Chicago, 865 F.2d 827, 848 (7th Cir. 1989);
AIC Security Investigations, 823 F.Supp. 573 at 574.
Equitable Relief
Complainant's request for compensation for leave taken due to emotional
distress as a result of the discrimination is a claim for equitable
relief. McGowan - Butler v. Department of the Treasury, EEOC Request
No. 05940636 (September 9, 1994). The Commission has previously held
that restoration of leave taken for purposes of avoiding or recovering
from discriminatory harassment is a valid component of equitable relief.
See Whiting v. ACTION, EEOC Request No. 05900093 (June 27, 1990).
Complainant claims that she used 80.0 hours of annual leave and 44.75
hours of sick leave during this time, for a total of 124.75 hours.
She writes that her annual leave was, �severely affected negatively by the
situation with [the Officer]. Over the course of the Christmas holidays,
I stayed in bed most of the time.� ROI at C-14. As the agency has not
argued that this leave was taken for any other reason other than the
direct actions of the Officer, we find that complainant is entitled to
reimbursement of the annual and sick leave that she used as a result of
the unlawful discrimination.
CONCLUSION
Therefore, after a careful review of the record, and arguments and
evidence not specifically addressed in this decision, we REVERSE the FAD
and REMAND this case to the agency to take remedial actions in accordance
with this decision and order below.
ORDER (D1092)
The agency is ORDERED to take the following remedial action:
1) the agency shall pay complainant compensatory damages in the amount of
$70,636.00, as follows: $636.00 for past pecuniary damages, and $70,000
for non-pecuniary damages. The agency shall tender full payment to
complainant no later than thirty (30) calendar days after the date on
which this decision becomes final;
in addition, the agency shall, within ten (10) days of the date
this decision becomes final, afford complainant thirty (30) days to
resubmit the documentation which fully supports amounts requested for
future medical expenses. Within thirty (30) days of its receipt of
the subject documentation, the agency shall calculate complainant's
entitlement to future medical expenses, pay the medical expenses for
which documentation has been submitted, and issue a final agency
decision with appropriate appeal rights determining the amount
of future medical expenses awarded. A copy of the agency's final
decision and of its letter to complainant forwarding payment of the
determined compensatory damages, as well as documentation supporting
the calculation and payment of future medical expenses, must be sent
to the Compliance Officer, as referenced below;
within thirty (30) calendar days after the date on which this decision
becomes final, the agency shall restore to complainant, 80.0 hours of
annual leave and 44.75 hours of sick leave, which she used during the
period of unlawful discrimination;
within sixty (60) calendar days after the date on which this decision
becomes final, the agency shall make the following accommodations to
complainant's workplace: the agency shall provide complainant with two
(2) two-drawer file cabinets and two (2) plastic floor mats. The agency
shall also provide, with complainant's consultation and cooperation,
an appropriate work station which will include all equipment necessary
so that complainant may perform the essential functions of her job,
including, an appropriate location for her computer, carpel tunnel bar,
swing away tray for her keyboard, work table and work space;
the agency shall pay complainant's reasonable attorney's fees, including
those incurred in connection with the instant appeal, in accordance
with the paragraph below; and
the agency shall post a notice in accordance with the paragraph below.
As the responsible officials in this action are no longer employed
by the agency, the agency shall provide a minimum of eight (8)
hours of remedial training for all managers and supervisors located
at the Buffalo Regional Office of the VR & C, to ensure that acts of
discrimination do not recur, that duties and obligations pursuant to
the Rehabilitation Act are complied with, and that no retaliatory acts
are taken against any employee who opposes unlawful discrimination.
The agency is further directed to submit a report of compliance, as
provided in the statement entitled "Implementation of the Commission's
Decision." The report shall include supporting documentation including
evidence that the corrective action has been implemented.
POSTING ORDER (G1092)
The agency is ORDERED to post at its Vocational Rehabilitation &
Counseling Office, Buffalo, N.Y. 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.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K1199)
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 64
Fed. Reg. 37,644, 37,659-60 (1999) (to be codified and hereinafter
referred to as 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)(Supp. V 1993). If the complainant files a civil action, the
administrative processing of the complaint, including any petition for
enforcement, will be terminated. See 64 Fed. Reg. 37,644, 37,659 (1999)
(to be codified and hereinafter referred to as 29 C.F.R. � 1614.409).
ATTORNEY'S FEES (H1199)
If complainant has been represented by an attorney (as defined by 64
Fed. Reg. 37,644, 37,659-60 (1999) (to be codified and hereinafter
referred to as 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.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0300)
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 64
Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter referred
to as 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 64 Fed. Reg. 37,644, 37,661 (1999) (to be codified and hereinafter
referred to as 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).
COMPLAINANTS' RIGHT TO FILE A CIVIL ACTION (R0400)
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 (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:
September 18, 2000
_______________ _____________________
Date Frances M. Hart
Executive Officer
Executive Secretariat
1On November 9, 1999, revised regulations governing the EEOC's federal
sector complaint process went into effect. These regulations apply to all
federal sector EEO complaints pending at any stage in the administrative
process. Consequently, the Commission will apply the revised regulations
found at 64 Fed. Reg. 37,644 (1999), where applicable, in deciding the
present appeal. The regulations, as amended, may also be found at the
Commission's website at WWW.EEOC.GOV.
2The record reveals that the agency dismissed complainant's allegation
of discrimination on the basis of reprisal when she was not permitted
to adjust her vacation schedule. There is no record of an appeal from
that agency decision.
3The memorandum also instructed complainant to type all information
regarding the prior week's cases, as well as her appointment schedule,
including details such as whether a veteran kept an appointment,
rescheduled, or canceled without rescheduling.
4The FAD is largely based on the Officer's statement made to the EEO
Counselor.