05960632
10-16-1998
Nancy P. Crider, Appellant, v. Togo D. West, Jr., Secretary, Department of Veterans Affairs,) Agency.
Nancy P. Crider v. Department of Veterans Affairs
05960632
October 16, 1998
Nancy P. Crider, )
Appellant, )
)
v. ) Request No. 05960632
) Appeal No. 01950282
Togo D. West, Jr., ) Agency No. 93-3304
Secretary, )
Department of Veterans Affairs,)
Agency. )
)
GRANT OF REQUEST FOR RECONSIDERATION
INTRODUCTION
On June 12, 1996, Nancy P. Crider (appellant) timely initiated a request
to the Equal Employment Opportunity Commission (EEOC or Commission) to
reconsider the decision in Nancy P. Crider v. Department of Veterans
Affairs, EEOC Appeal No. 01950282 (May 13, 1996). EEOC regulations
provide that the Commissioners may, in their discretion, reconsider
any previous Commission decision. 29 C.F.R. �1614.407(a). The party
requesting reconsideration must submit written argument or evidence
which tends to establish one or more of the following three criteria:
new and material evidence is available that was not readily available
when the previous decision was issued, 29 C.F.R. �1614.407(c)(1);
the previous decision involved an erroneous interpretation of law,
regulation, or material fact, or misapplication of established
policy, 29 C.F.R. �1614.407(c)(2); or the previous decision is of such
exceptional nature as to have substantial precedential implications, 29
C.F.R. �1614.407(c)(3). For the reasons set forth herein, appellant's
request is GRANTED.
The previous decision examined whether the agency discriminated against
appellant when she was removed from employment for inability to perform
the essential functions of her position. The previous decision
adopted the administrative judge's recommended decision finding no
discrimination.
BACKGROUND
The record reflects that appellant was employed by the agency at its
St. Paul, Minnesota, Regional Office and Insurance Center, Loan Guaranty
Division, as a Clerk-Typist, GS-3 (CT3). Appellant sustained injuries
to her spine in an automobile accident. When she returned to work, her
only medical restriction was no lifting more than 30 pounds. However,
she also requested and received the further accommodations of being
provided with a telephone headset and use of a room in which she could
perform therapeutic exercises.
Following a reorganization, all CT3 positions in the Loan Guaranty
Division were to be abolished, and the only remaining GS-3 positions
would be File Clerks and Mail Clerks,<1> positions having essentially
the same duties. The record reflects that a File Clerk, GS-3, (FC3)
retired, but could not be replaced until another position was abolished.
The agency determined that appellant's position, the last remaining CT3,
would be abolished in order to be able to fill the FC3 position.
On April 1, 1993, the Chief Loan Guaranty Officer (Chief LGO) informed
appellant that she would be reassigned to the FC3 position effective
April 2, 1993. Appellant immediately informed the Chief LGO that
she did not believe she could perform the duties of the position.
The Chief LGO e-mailed appellant later that day stating that he had
reviewed a January 23, 1992, note from her then-attending physician
which set forth a 30-pound weight-lifting limitation, but that this note
was "too old." The Chief LGO did not solicit new medical evidence from
appellant at that time. The record reflects that, nonetheless, appellant
was detailed,<2> not reassigned, to the FC3 position effective April 3,
1993; her CT3 position continued to exist until April 19, 1993, when
the proposal to reassign appellant to the FC3 position and to abolish
her CT3 position was approved. On April 6, 1993, appellant provided
the agency with a note from her attending chiropractor setting forth
restrictions of no pulling or pushing, no stooping or bending, and no
lifting more than 20 pounds, duties which appellant had not been required
to perform in her CT3 position. The agency did not solicit additional
medical evidence from appellant until May 3, 1993, at which time it
requested appellant to provide a report from a medical doctor rather than
a chiropractor. Appellant did so, supplying a report which contained
additional restrictions, including those set forth by her chiropractor.
Appellant subsequently stipulated, and does not now contest, that she
cannot perform the essential functions of the FC3 position with or
without reasonable accommodation.
ANALYSIS and FINDINGS
Disability Discrimination
The agency does not dispute that appellant is a "qualified individual with
disability" within the meaning of the Rehabilitation Act, and therefore
entitled to the Act's protection. See 29 C.F.R. �1614.203(a)(6); Burton
v. Dept. of Agriculture, EEOC Appeal No. 01932449 (October 28, 1994).
The only question is whether the agency met its burden to reasonably
accommodate appellant's known disability.
The Commission finds that the previous decision erred when it found that
the agency had met its burden. The Commission's regulations provide,
in relevant part, that when an employee becomes unable to perform
the essential functions of his or her position even with reasonable
accommodation due to a disability, an agency must offer to reassign the
individual to a funded vacant position at the same grade or level, the
essential functions of which the individual would be able to perform with
reasonable accommodation if necessary unless the agency can demonstrate
that the reassignment would impose an undue hardship on the operation
of its program. See 29 C.F.R. �1614.203(g); DeMeo v. Department of
the Navy, EEOC Appeal No. 01951047 (October 31, 1996). Further, the
Commission's regulations contemplate that an agency will engage in an
interactive process with the disabled employee in order to identify the
employee's precise limitations resulting from the disability, and the
potential reasonable accommodations that could overcome the limitations.
See 29 C.F.R. �1630.2(o)(3); Haug v. U.S. Postal Service, EEOC Appeal
No. 01951337 (January 9, 1998); Hupka v. Department of Defense, EEOC
Appeal No. 02960003 (August 13, 1997).
In the instant case, the agency abolished appellant's CT3 position and
reassigned her to the FC3 position. However, it immediately became
apparent that appellant, on account of her disability, could not perform
the essential functions of the FC3 position. At that point, the agency
became obligated to attempt to locate a position whose essential functions
appellant could perform, as set forth above. There is no evidence that
the agency looked beyond the Loan Guaranty Division of the St. Paul
Regional Office and Insurance Center to locate a suitable position for
appellant. There is no evidence that a suitable position could not be
found elsewhere in the St. Paul Regional Office and Insurance Center, or
at such other agency facilities as might exist in the St. Paul commuting
area. Further, although the agency finally solicited medical evidence
from appellant bearing on her limitations, once it became clear that the
duties of the FC3 position exceeded appellant's limitations the agency
failed to engage appellant in the exploration of how her disability might
be accommodated. Accordingly, the agency has not met its obligation to
reasonably accommodate appellant's disability.
Equitable Relief
When discrimination is found, the agency must provide the complainant
with an equitable remedy that constitutes full, make-whole relief to
restore him or her to the position he or she would have occupied absent
the discrimination. See, e.g., Franks v. Bowman Transportation Co., 424
U.S. 747, 764 (1976); Adesanya v. U.S. Postal Service, 01933395 (July
21, 1994). To avoid providing a remedy, the agency must show by clear
and convincing evidence that even absent discrimination, the complainant
would not have received the benefit sought. 29 C.F.R. �1614.501(c)(2);
see Day v. Mathews, 530 F.2d 1083 (D.C. Cir. 1976).
In this case, the remedy requested by appellant is reinstatement to a
clerical position with the agency. The record reflects, however, that
the only GS-3 positions which exist in the Loan Guaranty Division are
the FC3 position which appellant is unable to perform, and a Mail Clerk
position which has essentially the same physical requirements as the
FC3 position. Some five years have passed since the events at issue,
and it is not impossible that a vacant funded position suitable for
appellant may now exist. The Commission therefore will order the agency
on remand to attempt to locate a suitable position for appellant without
restricting its search to the Loan Guaranty Division. In addition, the
Commission will order the agency to pay appellant back pay and benefits
from the effective date of her removal through the effective date of her
reinstatement or the date on which the agency determines that a suitable
position for appellant does not exist, whichever is applicable.
Compensatory Damages
There remains one unresolved matter. The record contains a document
marked at the hearing as appellant's Exhibit 1, a July 27, 1993, note from
Dr. M, appellant's attending physician. Dr. M states, in relevant part:
[Appellant] has endoscopically documented reflux esophagitis with
aggravation of symptoms associated with increased anxiety. She developed
increased reflux symptoms associated with increased anxiety when she was
switched from a clerical position to a file clerk position. Her work as
a file clerk did not cause her reflux esophagitis -- but did aggravate
her reflux esophagitis.
Dr. M's statement clearly raises the prospect that appellant may be
entitled to compensatory damages related to the agency's discriminatory
conduct.
The Commission notes that compensatory damages may be raised at
any time during the administrative process, up to and including the
appeal stage, but not thereafter. Banks v. Dept. of the Interior, EEOC
Request No. 05920680 (March 4, 1994); Kyriazi v. Dept. of Defense, EEOC
Request No. 05930086 (March 4, 1994); York, EEOC Appeal No. 01930435;
Pacheco v. Dept. of the Interior, EEOC Appeal No. 01933253 (March 24,
1994); Stoll v. U.S. Postal Service, EEOC Request No. 05930057 (January
14, 1994). In this case, the issue of compensatory damages arose when
Dr. M's note was entered into evidence at the hearing. Where a finding of
discrimination is entered, and the claim for compensatory damages has not
been considered by the agency, the case will be remanded to the agency
for a supplemental investigation and a separate final agency decision
on the compensatory damages claim. York, EEOC Appeal No. 01930435;
McGowan-Butler v. Dept. of the Treasury, EEOC Appeal No. 01930662 (April
21, 1994), rev'd in part on other grounds, EEOC Request No. 05940636
(September 9, 1994).
Compensatory damages may be awarded for all pecuniary and non-pecuniary
losses attributable to acts of discrimination occurring on and after
November 21, 1991, the effective date of the Civil Rights Act of 1991.
See Landgraf v. USI Film Products, 511 U.S. 244 (1994). In Carle
v. Dept. of the Navy, EEOC Appeal No. 01922369 (January 5, 1993), the
Commission described the type of objective evidence that an agency may
obtain when assessing the merits of a complainant's request for emotional
distress damages:
[E]vidence could have taken the form of a statement by appellant
describing her emotional distress, and statements from witnesses, both
on and off the job, describing the distress. To properly explain the
emotional distress, such statements should include detailed information
on physical or behavioral manifestations of the distress, information on
the duration of the distress, and examples of how the distress affected
appellant day to day, both on and off the job. In addition, the agency
should have asked appellant to provide objective and other evidence
linking ... the distress to the unlawful discrimination ....
Objective evidence may include statements from appellant concerning her
emotional pain or suffering,<3> inconvenience, mental anguish, loss of
enjoyment of life, injury to professional standing, injury to character
or reputation, injury to credit standing, loss of health, and any other
non-pecuniary losses that are incurred as a result of the discriminatory
conduct. Statements from others, including family members, friends, and
health care providers could address the outward manifestations or physical
consequences of emotional distress, including sleeplessness, anxiety,
stress, depression, marital strain, humiliation, loss of self-esteem,
excessive fatigue, or a nervous breakdown. Objective evidence may also
include documents indicating appellant's actual out-of-pocket expenses
related to medical treatment, counseling, and so forth, related to the
injury caused by the respondent's discriminatory action.
Upon remand, the agency will afford appellant a period of time,
as specified below, to produce evidence in support of her claim for
compensatory damages. Thereafter, the agency will issue a new FAD
addressing only whether, and to what extent, appellant has established
her entitlement to compensatory damages.
CONCLUSION
Based upon a thorough review of the record, and for the foregoing reasons,
appellant's request for reconsideration is GRANTED. The decision in
Appeal No. 01950282 is REVERSED and the case is remanded to the agency
for further processing consistent with this Decision and the Order of the
Commission, below. There is no further right of administrative appeal
from the decision of the Commission on this request for reconsideration.
ORDER
The agency is ORDERED to take the following remedial action:
(1) The agency shall conduct a new investigation to determine whether
there exists a funded vacant position, in the same commuting area
and serviced by the same appointing authority as appellant's former
Clerk-Typist position, which would be suitable for appellant given her
current limitations, including any position which might be made suitable
through reasonable accommodation. Prior to initiating the job search,
the agency shall solicit from appellant medical evidence delineating
her current limitations.
(2) If a suitable position is located for appellant, the agency shall
offer the position to appellant, and shall allow appellant a period of
not less than five (5) business days to accept or reject the offer.
(3) The agency shall tender to appellant back pay and benefits for
the period July 23, 1993, to the date of appellant's reinstatement.
Should appellant reject the offer of reinstatement, her entitlement to
back pay shall cease on that date. Should the agency determine that
no suitable position exists for appellant and she therefore cannot be
reinstated, her entitlement to back pay shall cease on the date of that
determination.
(4) The agency shall conduct a supplemental investigation into the
matter of appellant's entitlement to compensatory damages. The agency
shall solicit from appellant evidence bearing on this matter, and shall
afford appellant no fewer than forty-five (45) days from the date she
receives its request to supply such evidence. Within sixty (60) days
after receipt of appellant's evidence, the agency shall issue a final
agency decision on the matter of compensatory damages.
(5) The agency shall pay appellant's reasonable attorney fees and costs
in accordance with the paragraph below entitled, "Attorney Fees."
(6) The agency shall post a notice of the finding of discrimination in
accordance with the paragraph below entitled, "Posting Order."
(7) The agency shall conduct EEO training for all supervisory/managerial
personnel in the Loan Guaranty Division of its St. Paul, Minnesota,
Regional Office and Insurance Center. Such training shall include,
but not be limited to, training on the agency's obligations toward its
disabled employees and applicants for employment.
The agency shall determine the appropriate amount of back pay,
with interest, and other benefits due appellant, pursuant to 29
C.F.R. �1614.501, no later than sixty (60) calendar days after the date
this decision becomes final. Appellant shall cooperate in the agency's
efforts to compute the amount of back pay and benefits due, and shall
provide all relevant information requested by the agency. If there
is a dispute regarding the exact amount of back pay and/or benefits,
the agency shall issue a check to appellant for the undisputed amount
within sixty (60) calendar days of the date the agency determines the
amount it believes to be due. Appellant may petition for enforcement or
clarification of the amount in dispute. The petition for clarification
or enforcement must be filed with the Compliance Officer, at the address
referenced in the statement entitled "Implementation of the Commission's
Decision."
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 of the
agency's calculation of back pay and other benefits due appellant,
including evidence that the corrective action has been implemented.
POSTING ORDER (G1092)
The agency is ORDERED to post at its St. Paul, Minnesota, Regional Office
and Insurance Center copies of the attached notice. Copies of the notice,
after being signed by the agency's duly authorized representative, shall
be posted by the agency within thirty (30) calendar days of the date
this decision becomes final, and shall remain posted for sixty (60)
consecutive days, in conspicuous places, including all places where
notices to employees are customarily posted. The agency shall take
reasonable steps to ensure that said notices are not altered, defaced,
or covered by any other material. The original signed notice is to be
submitted to the Compliance Officer at the address cited in the paragraph
entitled "Implementation of the Commission's Decision," within ten (10)
calendar days of the expiration of the posting period.
ATTORNEY FEES (H1092)
If appellant has been represented by an attorney (as defined by 29
C.F.R. �1614.501 (e)(1)(iii)), he/she is entitled to an award of
reasonable attorney fees incurred in the processing of the complaint.
29 C.F.R. �1614.501 (e). The award of attorney 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 fees in accordance with 29 C.F.R. �1614.501.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0595)
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 appellant. If the
agency does not comply with the Commission's order, appellant may petition
the Commission for enforcement of the order. 29 C.F.R. �1614.503 (a).
Appellant 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. ��1614.408, 1614.409, and
1614.503 (g). Alternatively, appellant 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. ��1614.408
and 1614.409. 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 appellant files a civil action,
the administrative processing of the complaint, including any petition
for enforcement, will be terminated. See 29 C.F.R. �1614.410.
RIGHT TO FILE a CIVIL ACTION (R0993)
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 an action in an appropriate
United States District Court. It is the position of the Commission
that 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. You should be aware, however, that
courts in some jurisdictions have interpreted the Civil Rights Act of
1991 in a manner suggesting that a civil action must be filed WITHIN
THIRTY (30) CALENDAR DAYS from the date that you receive this decision.
To ensure that your civil action is considered timely, you are advised to
file it WITHIN THIRTY (30) CALENDAR DAYS from the date that you receive
this decision or to consult an attorney concerning the applicable time
period in the jurisdiction in which your action would be filed. In the
alternative, you may file a civil action AFTER ONE HUNDRED EIGHTY (180)
CALENDARS 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 (Z1092)
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:
Oct. 16, 1998
Date Frances M. Hart
Executive Officer
Executive Secretariat
This Notice is posted pursuant to an Order by the United States Equal
Employment Opportunity Commission dated _____________ which found that a
violation of the Rehabilitation Act of 1973, as amended, 29 U.S.C. �791
et seq., has occurred at this facility.
Federal law requires that there be no discrimination against any
employee or applicant for employment because of that person's RACE,
COLOR, RELIGION, SEX, NATIONAL ORIGIN, AGE, or PHYSICAL or MENTAL
DISABILITY with respect to hiring, firing, promotion, compensation,
or other terms, conditions, or privileges of employment.
The Department of Veterans Affairs St. Paul, Minnesota, Regional Office
and Insurance Center supports and will comply with such Federal law and
will not take action against individuals because they have exercised
their rights under law.
The Department of Veterans Affairs St. Paul, Minnesota, Regional Office
and Insurance Center has been found to have discriminated against the
individual affected by the Commission's finding. The Department of
Veterans Affairs St. Paul, Minnesota, Regional Office and Insurance
Center shall attempt to locate a suitable position for the affected
individual and reinstate her with back pay and benefits; if a suitable
position does not exist, tender back pay and benefits through the date
on which such a determination is made; pay such compensatory damages as
may be proven; pay reasonable attorney fees and costs; and conduct EEO
training for the supervisory/managerial officials of its Loan Guaranty
division.
The Department of Veterans Affairs St. Paul, Minnesota, Regional
Office and Insurance Center will ensure that officials responsible for
personnel decisions and terms and conditions of employment will abide
by the requirements of all Federal equal employment opportunity laws
and will not retaliate against employees who file EEO complaints.
The Department of Veterans Affairs St. Paul, Minnesota, Regional Office
and Insurance Center will not in any manner restrain, interfere, coerce,
or retaliate against any individual who exercises his or her right to
oppose practices made unlawful by, or who participates in proceedings
pursuant to, Federal equal employment opportunity law.
_________________________
Date Posted: ____________________
Posting Expires: _________________
29 C.F.R. Part 1614
This Notice is posted pursuant to an Order by the United States Equal
Employment Opportunity Commission dated _____________ which found that a
violation of the Rehabilitation Act of 1973, as amended, 29 U.S.C. �791
et seq., has occurred at this facility.
Federal law requires that there be no discrimination against any
employee or applicant for employment because of that person's RACE,
COLOR, RELIGION, SEX, NATIONAL ORIGIN, AGE, or PHYSICAL or MENTAL
DISABILITY with respect to hiring, firing, promotion, compensation,
or other terms, conditions, or privileges of employment.
The Department of Veterans Affairs St. Paul, Minnesota, Regional Office
and Insurance Center supports and will comply with such Federal law and
will not take action against individuals because they have exercised
their rights under law.
The Department of Veterans Affairs St. Paul, Minnesota, Regional Office
and Insurance Center has been found to have discriminated against the
individual affected by the Commission's finding. The Department of
Veterans Affairs, St. Paul, Minnesota, Regional Office and Insurance
Center shall attempt to locate a suitable position for the affected
individual and reinstate her with back pay and benefits; if a suitable
position does not exist, tender back pay and benefits together with
one year of front pay; pay such compensatory damages as may be proven;
pay reasonable attorney fees and costs; and conduct EEO training for
the supervisory/managerial officials of its Loan Guaranty Division.
The Department of Veterans Affairs St. Paul, Minnesota, Regional
Office and Insurance Center will ensure that officials responsible for
personnel decisions and terms and conditions of employment will abide
by the requirements of all Federal equal employment opportunity laws
and will not retaliate against employees who file EEO complaints.
The Department of Veterans Affairs St. Paul, Minnesota, Regional Office
and Insurance Center will not in any manner restrain, interfere, coerce,
or retaliate against any individual who exercises his or her right to
oppose practices made unlawful by, or who participates in proceedings
pursuant to, Federal equal employment opportunity law.
_________________________
Date Posted: ____________________
Posting Expires: _________________
29 C.F.R. Part 1614
1Although referred to throughout the record as "Mail Clerk," this job
title does not appear on the table of positions provided by the agency.
Rather, the actual title of this position appears to be "Documents
Clerk."
2The memorandum apprising appellant of her change in position referred
to an "informal detail" that would be made permanent at a later date.
3The Commission notes that a request for compensatory damages related
to emotional pain and suffering may permit the agency to seek personal
and sensitive information from appellant in order to determine whether
the injury is linked solely, partially, or not at all to the alleged
discriminatory conduct.