0120142226
08-11-2016
Lidia B.,1 Complainant, v. Robert McDonald, Secretary, Department of Veterans Affairs, Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Lidia B.,1
Complainant,
v.
Robert McDonald,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 0120142226
Hearing No. 420-2012-00047X\
Agency No. 200305202011102663
DECISION
Complainant filed an appeal with the Commission regarding the Agency's July 25, 2013 final order concerning her equal employment opportunity (EEO) complaint alleging employment discrimination in violation of Title VII of the Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. � 2000e et seq.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Medical Instrument Technician at the Agency's Gulf Coast Veterans Healthcare System facility in Biloxi, Mississippi. On May 13, 2011, Complainant filed a formal complaint alleging that the Agency discriminated against her on the basis of sex (female) when she was subjected to harassment and terminated her employment during the probationary period.
The matter was investigated. Complainant requested a hearing before an Equal Employment Opportunity Commission Administrative Judge (AJ). The AJ head a hearing from November 7-9, 2012. Following the hearing, the AJ issued a decision on June 24, 2013. The AJ's decision found that the Agency discriminated against Complainant on the basis of sex in connection with sexual harassment and the termination. The AJ issued appropriate remedies including providing Complainant with $ 150,000 in compensatory damages; calculating Complainant's entitlement to back pay including contributions to her thrift savings account; reimburse her for all "out-of-pocket expenses for health benefits;" restoring Complainant's leave; and expunge all official agency records in reference to the termination.
The Agency issued its decision on July 25, 2013, implementing the AJ's findings and conclusions. The Agency also agreed to the AJ's award of remedies and corrective action.
Complainant filed the instant appeal asserting that the Agency has not complied with its final order. Specifically, Complainant argued that she incurred out-of-pocket medical expenses for which the Agency has not reimbursed her. She indicated that she underwent significant and costly dental procedures that could have been avoided had she had her health insurance. Therefore, she requested that the Commission order the Agency to reimburse her for the $ 12,844.00 she paid for dental procedures. Complainant asserted that she has made "multiple attempts to meet with various Agency Officials in an effort to seek resolution to the medical expenses question." Complainant does not provide any further detail as to her "attempts." Complainant included a letter dated April 15, 2014, from her dentist stating that she needed extensive work due to the lack of preventative care. She also included a copy of her dental bill dated August 14, 2013.
In response, the Agency requested that the Commission find that it is in full compliance with the AJ's orders. The Agency noted that the Final Order provided Complainant with the relief ordered by the AJ. Complainant waited until April 2014, to raise her claim for reimbursement of the dental expenses. The Agency stated that Complainant's representative contacted the EEO Manager to provide some documentation to support her claim for reimbursement for out-of-pocket medical/dental expenses. Complainant provided the same bill from August 2013 and the dentist's note. In response, the Agency's EEO Manager emailed Complainant on May 8, 2014, that such expenses are beyond what the Agency was obligated to pay. The Agency argued that Complainant's dental bill occurred after the AJ's decision and the Agency's final order. As such, it should be construed as future pecuniary damages which were not awarded by the AJ and, therefore, the Agency claimed that Complainant is not entitled to an award. Further, the Agency argued that Complainant failed to show that the dental procedures were related to the discrimination for the dentist noted "high levels of stress and anxiety" but not discrimination.
ANALYSIS AND FINDINGS
We find that Complainant has argued that the AJ ordered the Agency to reimburse Complainant for out-of-pocket expense related to health benefits and that her dental costs constituted such an "out-of-pocket expense." We note that the AJ issued the order reimbursement for "health benefits" in the same order regarding "back pay." The Commission has stated that back pay includes all forms of compensation and reflects fluctuations in working time, overtime rates, penalty overtime, Sunday premium and night work, changing rates of pay, transfers, promotions, and privileges of employment. Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at 11-3. (Aug. 5, 2015). The Commission also construes "benefits" broadly to include annual leave, sick leave, health insurance, and retirement contributions. Id. Vereb v. Dep't. of Justice, EEOC Petition No. 04980008 (Feb. 26, 1999); Holly v. U.S. Postal Serv., EEOC Petition No. 04A50003 (Nov. 2, 2005). Based on our fair reading of the decision and the record at hand, we find that the AJ's reference to "out-of-pocket expenses for health benefits" is to reimburse Complainant for her expenses related to paying for health insurance based on her loss of health benefits when she was discriminatory terminated by the Agency. As such, we disagree with Complainant's assertion that the AJ ordered the Agency to reimburse her for the dental bill.
Instead, we find that Complainant has requested reimbursement for dental expenses which incurred after the Agency issued its Final Order. In other words, Complainant sought losses she incurred after litigation had completed. Compensatory damages may be awarded for past pecuniary losses, future pecuniary losses, and non-pecuniary losses that are directly or proximately caused by the agency's discriminatory conduct. Compensatory and Punitive Damages Available Under Section 102 of the Civil Rights Act of 1991, EEOC Notice No. N 915.002 (July 14, 1992), at 8. Pecuniary losses are out-of-pocket expenses incurred as a result of the employer's unlawful action, including medical and other quantifiable out-of-pocket expenses. Id. Past pecuniary losses are pecuniary losses incurred prior to the date of the resolution of the damage claim. Id. at 8-9. Future pecuniary losses are losses that are likely to occur after the resolution of litigation. Id. at 9.
Complainant indicated that she incurred losses when she could not maintain proper preventative care when she lost her health benefits. The note from Complainant's dentist also stated that Complainant "sustained high levels of stress and anxiety that cause severe bruxism." We find that Complainant is seeking reimbursement for losses caused by the Agency's discriminatory action. Further, we determine that Complainant's claim is based on the dental procedures which occurred in August 2013, after the Agency issued its Final Order.2 In other words, Complainant is seeking reimbursement for losses that occurred after the resolution of litigation. As such, Complainant sought future pecuniary damages. We note that the AJ did not order the Agency to pay or to calculate Complainant's future pecuniary damages. Complainant did not appeal the AJ's decision to the Commission to challenge the AJ's order of equitable relief. As such, we find that Complainant cannot, now, request reimbursement for future pecuniary losses.
Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we AFFIRM the Agency's determination that it has complied with the AJ's decision.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0416)
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), 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. The requests may be submitted via regular mail to P.O. Box 77960, Washington, DC 20013, or by certified mail to 131 M Street, NE, Washington, DC 20507. In the absence of a legible postmark, the request to reconsider shall be deemed timely filed if it is received by mail within five days of the expiration of the applicable filing period. See 29 C.F.R. � 1614.604. The 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 (S0610)
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. If you file a civil action, you must name as the defendant in the complaint the person who is the official Agency head or department head, identifying that person by his or her full name and official title. Failure to do so may result in the dismissal of your case in court. "Agency" or "department" means the national organization, and not the local office, facility or department in which you work. If you file a request to reconsider and also file a civil action, filing a civil action will terminate the administrative processing of your complaint.
RIGHT TO REQUEST COUNSEL (Z0815)
If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may request permission from the court to proceed with the civil action without paying these fees or costs. Similarly, if you cannot afford an attorney to represent you in the civil action, you may request the court to appoint an attorney for you. You must submit the requests for waiver of court costs or appointment of an attorney directly to the court, not the Commission. The court has the sole discretion to grant or deny these types of requests. Such requests do not alter the time limits for filing a civil action (please read the paragraph titled Complainant's Right to File a Civil Action for the specific time limits).
FOR THE COMMISSION:
______________________________ Carlton M. Hadden's signature
Carlton M. Hadden, Director
Office of Federal Operations
August 11, 2016
__________________
Date
1 This case has been randomly assigned a pseudonym which will replace Complainant's name when the decision is published to non-parties and the Commission's website.
2 There was no appeal filed with the Commission by either the Agency or Complainant.
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