0120123060
01-10-2013
Maryann Light, Complainant, v. Eric K. Shinseki, Secretary, Department of Veterans Affairs, Agency.
Maryann Light,
Complainant,
v.
Eric K. Shinseki,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 0120123060
Agency No. 200I-0673-2009104378
DECISION
Complainant filed an appeal from a May 31, 2012 final Agency decision (FAD) 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. The Commission deems the appeal timely and accepts it pursuant to 29 C.F.R. � 1614.405(a).1
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a probationary Medical Records Technician at the Agency's James A. Haley Veterans Hospital in Tampa, Florida.
On December 8, 2009, Complainant filed a formal complaint alleging discrimination based on her race (Caucasian) when during her employment she was harassed from July 5, 2009 to July 9, 2009, was constructively discharged on July 9, 2009, and after her separation was harassed again on or about July 21, 2009.
Following an investigation, the Agency notified Complainant of her right to request a hearing before an EEOC Administrative Judge or a FAD. Since Complainant did not respond, the Agency issued a FAD pursuant to 29 C.F.R. � 1614.110(b).
The Agency found no discrimination on all the allegations in Complainant's complaint. However, it sua sponte found unlawful reprisal had occurred against Complainant largely based on the statement by her second level supervisor about what she said to Complainant on July 9, 2009.
In Light v. Department of Veterans Affairs, EEOC Appeal No. 0120111229 (Nov. 22, 2011), request for reconsideration denied, EEOC Request No. 0520120207 (June 6, 2012), the EEOC affirmed the Agency's finding of no race discrimination, finding Complainant was not discriminatorily harassed and was not constructively discharged.
On the reprisal claim, the EEOC noted that Complainant told her second level supervisor that she was being discriminated against because of her race, and the second level supervisor stated she responded she was offended by the accusation. The second level supervisor described what she said and thought during this conversation, and the EEOC in part quoted her as follows:
You were white when we interviewed you and you were white when we hired you and we brought you on board like any other employee to develop you into doing a good job... I am black. I'm still black. That's not going to change. So how is it that you can make those allegations...?
The EEOC affirmed the Agency's finding of reprisal discrimination, finding that the second level supervisor's statement to Complainant that she was offended by her allegations of race discrimination would reasonably likely deter EEO activity. The EEOC, in relevant part, remanded the complaint to the Agency for a determination on compensatory damages.
On remand, the Agency advised Complainant in writing about how to prove damages. This included information that she could submit statements from credible witnesses, including family members, friends, and health care providers, and that she must establish a connection between the discriminatory action and harm or injury. It advised that if reimbursement is claimed for expenses, she must provide credible evidence such as bills, receipts, or other verifiable evidence. As part of the supplemental investigation, the Agency took a transcribed affidavit from Complainant, and asked her if it was possible for her to submit medical records.
Complainant provided a listing from the Social Security Administration of treatments and diagnosis from April 1, 2010, to January 3, 2012. It indicated Complainant had a second stroke on April 1, 2010, of the occipital and temporal lobes; a "CVA" and crises with blood thinners in April 2010; a mid-brain stroke in November 2011; and two mini strokes in December 2011, affecting her swallowing; and was treated in January 2012 for multiple CVA, seizures, and hypertension. She submitted a one-page health care provider follow-up note from February 2011, indicating stroke(s) impacted her vision. This was all the medical evidence she provided. Complainant submitted no statements from others, and submitted no bills or receipts, or other documentary evidence of medical expenses.
Based on Complainant's transcribed affidavit, the Agency found that she had an aggravation of high blood pressure and four strokes after July 2009, with the first stroke occurring in September 2009, and the strokes caused blindness in one eye and legal blindness in the other. Complainant also suggested that the strokes impacted her memory. The Agency found that given the close proximity between the discrimination and the first stroke in September 2009, there was an inference that some of Complainant's injuries were caused by the discrimination. The Agency also noted Complainant's testimony that she had high blood pressure since the age of 16, well prior to the discrimination. The Agency found that Complainant's deterioration in health was part of an ongoing condition, which it suggested was unrelated to the discrimination, and that she may have also had emotional distress because of matters she raised in her complaint on which no discrimination was found.
Based on this evidence, the Agency concluded that Complainant was entitled to an award of $20,000 in non-pecuniary damages to compensate for the discrimination. The instant appeal followed.
ANALYSIS AND FINDINGS
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 (July 14, 1992) (available at www.eeoc.gov.) Non-pecuniary losses are losses that are not subject to precise quantification including emotional pain and injury to character, professional standing, and reputation. Compensatory damages are awarded to compensate for losses or suffering inflicted due to discrimination.
On appeal, Complainant indicates that she was debilitated by her strokes, i.e., loss of vision, memory, emotional problems, and numbness and weakness on the left side. She writes that she has incurred medical bills over $270,000. Complainant submits her medical records, and documentary evidence of large medical expenses.
In opposition to the appeal, the Agency, citing EEOC precedent, argues that Complainant is prohibited from providing additional evidence on appeal that was readily available during the investigation. While we are not inclined to accept much of the evidence Complainant submits on appeal for this reason, even if we did it would not impact our decision. None of the medical evidence in the record or submitted on appeal indicated in any way that Complainant's high blood pressure and strokes were caused by events which occurred at work. One medical note indicated Complainant had hypertension since the age of 16.
Given the tenuous evidentiary link between the unlawful reprisal based on the second level supervisor telling Complainant in one conversation that she was offended by her accusation of discrimination and Complainant's subsequent deterioration in health, we find that Complainant has not shown she is entitled to an award beyond that already made by the Agency of $20,000 in non-pecuniary damages.
The FAD is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0610)
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 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 77960, Washington, DC 20013. 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 (Z0610)
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 from the Court that the Court appoint an attorney to represent you and that the Court also 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 with the Court does not extend your time in which to file a
civil action. Both the request and the civil action must be filed within the time limits as stated in the paragraph above ("Right to File a Civil Action").
FOR THE COMMISSION:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
January 10, 2013
__________________
Date
1 While Complainant filed her appeal on or about July 18, 2012, beyond the 30 calendar day time limit to do so, we have extended the time limit because she is legally blind and asked the Agency to send her correspondence in large print. The FAD does not appear to be in large print. Further, Complainant has had multiple strokes which she states make it difficult for her to retain information that is read to her by other people. This appellate decision is printed in a 16 point font.
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0120123060
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120123060