[Redacted], Geraldine B., 1 Complainant,v.Kevin Shea, Acting Secretary, Department of Agriculture (Forest Service), Agency.

Equal Employment Opportunity Commission

Jan 25, 2021

Appeal No. 0720180025 (E.E.O.C. Jan. 25, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Geraldine B.,1 Complainant, v. Kevin Shea, Acting Secretary, Department of Agriculture (Forest Service), Agency. Request No. 2019004795 Appeal No. 0720180025 Hearing No. 551-2016-00023X Agency No. FS-2015-00567 DECISION ON REQUEST FOR RECONSIDERATION The Agency timely requested that the Equal Employment Opportunity Commission (EEOC or Commission) reconsider its decision in Geraldine B. v. Department of Agriculture, EEOC Appeal No. 0720180025 (June 5, 2019). EEOC regulations provide that the Commission may, in its discretion, grant a request to reconsider any previous Commission decision issued pursuant to 29 C.F.R. § 1614.405(a), where the requesting party demonstrates 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. See 29 C.F.R. § 1614.405(c). Complainant, an Administrative Support Assistant, filed an EEO complaint alleging that the Agency discriminated against her and subjected her to a hostile work environment based on disability (Post Traumatic Stress Disorder) when: 1. On April 29, 2015, management denied her request for reasonable accommodation and accused her of misconduct and had law enforcement escort her out of the office, and 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. 2019004795 2 2. From April 30, 2015 to May 17, 2015, management placed her on paid administrative leave and barred her from her duty location. Following the investigation, Complainant requested a hearing before an EEOC Administrative Judge (AJ). The AJ assigned to the matter held a hearing and issued a decision finding that Complainant was discriminated against on the basis of her disability. Therein, the AJ found that Complainant had confided in her first- and second-line supervisors at the time (S1a and S2a) that she suffered from PTSD and asked to be relieved of an obligation to provide front desk support to the general public. The AJ noted that such duties were secondary to Complainant’s primary job duties and that S2a, the District Ranger, agreed to allow Complainant to work from a desk in the back of the office, to have phone calls transferred to her desk, and to issue wood permits from her computer. In the summer of 2014, a new District Ranger came on board (S2b). S2b questioned why Complainant was not working at the front desk. Complainant sent S1a documentation from her physician. Complainant then went on her regularly scheduled non-pay status for the winter. While Complainant was on non-pay status, S1a retired. After Complainant returned in the spring, on April 29, 2015, S2b held a meeting with Complainant, Complainant’s union representative, and Complainant’s new immediate supervisor (S1b). S2b added front desk tasks to Complainant’s list of duties and gave Complainant a schedule that showed Complainant working the front desk once a day for the next two months. In response, Complainant asked S2b about the accommodations previously provided by S2a, but S2b told Complainant to formally apply for reasonable accommodations, and that she needed to work the front desk until any accommodations were approved. S2b referred to Complainant’s condition as an “unknown illness.” The record reflects that Complainant became upset and could not calm down even with a 10- minute break. She developed a full-blown panic attack and, in the process of trying to leave the room, tripped and knocked over a chair and an easel. In her testimony, S2b claimed that Complainant threw her chair and the easel. S2b testified that Complainant threw the chair and the easel. However, two witnesses who were in the meeting with Complainant and S2b corroborated Complainant’s testimony that she tripped over the easel and pushed the chair hard into the table. Therefore, the AJ found S2b’s testimony not credible. S2b subsequently called the police, suspended Complainant indefinitely, and had Complainant removed from the premises. After Complainant’s suspension ended, Complainant did not return to work until May 2016. During her year-long absence, Complainant exhausted her entitlement to FMLA leave, her annual and sick leave balances, and took leave without pay. When she returned in May 2016, a new second-level supervisor (S2c) had replaced S2b. S2c restored Complainant’s accommodation and Complainant worked with relative success. However, Complainant remained uneasy and anxious at work, and ultimately retired from Federal service. To remedy the discrimination, the AJ awarded Complainant $250,000 in nonpecuniary compensatory damages, $11,118.80 in pecuniary compensatory damages, reasonable attorney’s 2019004795 3 fees and costs, training for management and staff in the district where Complainant worked, and a posted notice of the finding of discrimination. The Agency issued a final order rejecting the AJ’s finding of discrimination and the relief ordered, and appealed the AJ’s decision to the Commission. In our appellate decision, the Commission reversed the Agency’s final order rejecting the AJ’s finding of discrimination and ordered the implementation of all remedies ordered by the AJ. In doing so the Commission determined the AJ’s findings of fact were supported by substantial evidence, and that the AJ correctly applied the law. The Commission rejected several arguments advanced by the Agency on appeal: that Complainant failed to show her accommodation was rescinded; that an employer has the right to review the need for accommodation, particularly where a disability is not obvious; that management did not direct Complainant to perform front desk duties, and that there was no documentation to support Complainant’s request for, or the Agency’s grant of, accommodation. The Commission also did not find persuasive the Agency’s argument that it attempted to engage Complainant in the interactive process only to have Complainant respond with belligerence and threats. Finally, the Commission determined that the awarded damages were not excessive. The Agency now seeks reconsideration of the Commission’s prior decision. In its request, the Agency raises many of the arguments that it has previously raised on appeal. Moreover, the Agency contends it would have taken the same actions it took regardless of Complainant’s disability; therefore, damages were not appropriate. Lastly, the Agency contends that our previous decision would have an adverse impact on Agency policy with respect to workplace violence. The Agency contends that our previous decision would require the Agency to disregard workplace violence protocol based on the disability of an employee. The Commission is not persuaded by the Agency’s arguments. The Commission emphasizes that a request for reconsideration is not a second appeal. Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), Chap. 9 § VI.A (Aug. 5, 2015); see, e.g., Lopez v. Dep’t of Agric., EEOC Request No. 0520070736 (Aug. 20, 2007). Rather, a reconsideration request is an opportunity to demonstrate that the appellate decision involved a clearly erroneous interpretation of material fact or law, or will have a substantial impact on the policies, practices, or operations of the Agency. The Agency has not done so here. The Commission appropriately determined the AJ’s findings of fact and application of law to be supported by substantial evidence. Moreover, we are not persuaded by the Agency’s position that the prior decision would have an adverse impact on its policies. We note that we do not question the prerogative of a supervisor or manager to address an occurrence of threats or violence in the workplace. In this instance, however, the circumstances lead us to the conclusion that S2b’s actions were not justified. We consider, as did the AJ, that two witnesses corroborated Complainant’s testimony that she tripped and fell, and did not throw either the chair or easel, as S2b asserted. Further, S2b removed an accommodation that had been in place, and described Complainant as having an “unknown illness” after she had already been provided with medical information regarding Complainant’s condition. 2019004795 4 In this decision, we emphasize that we are not imposing any requirement that an agency waive its workplace violence due to an employee’s disability. Rather, the AJ’s decision was proper because S2b’s account of the events was not credible and Complainant did not engage in conduct that came within the ambit of the Agency’s workplace violence policy. We do find merit, however, in the Agency’s argument that the damages award to Complainant was excessive. Section 102(a) of the 1991 Civil Rights Act authorizes an award of compensatory damages for pecuniary losses, and for non-pecuniary losses, such as, but not limited to, emotional pain, suffering, inconvenience, mental anguish, loss of enjoyment of life, injury to character and reputation, and loss of health. In this regard, the Commission has authority to award such damages in the administrative process. See West v. Gibson, 527 U.S. 212 (1999). 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.; 42 U.S.C. § 1981(b)(3)(D). Compensatory damages may be awarded for past (out-of-pocket) and future (likely future out-of- pocket) pecuniary losses, and, as in the instant appeal, also for non-pecuniary losses which are directly or proximately caused by the agency's discriminatory conduct. Enforcement Guidance: Compensatory and Punitive Damages Available under Section 102 of the Civil Rights Act of 1991 (Guidance on Compensatory Damages), EEOC Notice No. 915.002, at 8 (July 14, 1992). The amount of an award of compensatory damages is based on the following factors: (1) severity of the harm; (2) duration of the harm; and (3) extent to which the harm was caused by discriminatory conduct. See Rivera v. Dep't of the Navy, EEOC Appeal No. 01934157 (July 22, 1994), req. for recon. denied, EEOC Request No. 05940927 (Dec. 11, 1995); Guidance on Compensatory Damages, at 11-12, 14. The reasonableness of an amount of compensatory damages is measured by whether the award is “monstrously excessive” and consistent with awards in similar cases. Ward-Jenkins v. Dep't of the Interior, EEOC Appeal No. 01961483 (Mar. 4, 1999). (citing Cygnar v. City of Chicago, 865 F.2d 848 (7th Cir. 1989)). Complainant is required to provide objective evidence that would allow the Agency to assess the merits of his request for damages. See Carle v. Dep't of the Navy, EEOC Appeal No. 01922369 (Jan. 5, 1993). Complainant's own testimony, along with the circumstances of a particular case, can suffice, however, to sustain his burden in regard to harm. Sinott v. Dep't of Defense, EEOC Appeal No. 01952872 (Sept. 19, 1996). Objective evidence of compensatory damages can include statements from the complainant concerning his emotional pain or suffering, inconvenience, mental anguish, marital strain, loss of enjoyment of life and self-esteem, 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, health care providers, or other counselors (including clergy) could address the outward manifestations or physical consequences of emotional distress, including sleeplessness, anxiety, stress, depression, marital strain, humiliation, emotional distress, 2019004795 5 loss of self-esteem, excessive fatigue, or a nervous breakdown. Lawrence v. U.S. Postal Serv., EEOC Appeal No. 01952288 (Apr. 18, 1996) (citing Carle, supra, EEOC Appeal No. 01922369). Evidence from a health care provider or other expert is not a mandatory prerequisite for recovery of compensatory damages for emotional harm. Sinnott, supra, EEOC Appeal No. 01952872; Carpenter v. Dep't of Agriculture, EEOC Appeal No. 01945652 (July 17, 1995). The more inherently degrading or humiliating the agency's action is, the more reasonable it is to infer that a person would suffer humiliation or distress from that action. The absence of supporting evidence, however, may affect the amount of damages appropriate in specific cases. See Lawrence, supra, EEOC Appeal No. 01952288; Banks v. U. S. Postal Serv., EEOC Appeal No. 07A20037 (Sept. 29, 2003). In this case, Complainant and her husband provided testimony at the hearing that demonstrated she suffered from insomnia, weight gain, and depression as a result of the discrimination. Complainant testified that the depression following her meeting with S1b was the worst she had ever experienced, and that she was lucky if she was able to sleep more than four or five hours a night and experienced nightmares. Complainant also testified she stopped going to church and stopped socializing with friends. Complainant’s husband said that he encountered Complainant on the road after her meeting with S1b, and that Complainant was in tears, incoherent, and shouldn’t have been driving. Complainant’s husband further testified that her depression strained her relationship with her husband and children. This caused Complainant to miss the birth of her granddaughter. According to Complainant’s husband, it took approximately three years for her symptoms to subside. Because Complainant was unable to work, the family had to cut back on food and dip into their savings. Based on the testimony, we think $90,000 is a more appropriate measure of damages. See Emmett W. v. Dep’t of Agriculture, EEOC Appeal No. 0120143098 (May 3, 2016) (awarding $80,000 for termination following a failure to accommodate, which resulted in complainant’s worsening PTSD, depression, sleeplessness, anger, stress, weight loss, familial strain); Billy B. v. Dep’t of Veterans Affairs, EEOC Appeal No. 0120132680 (Nov. 19, 2015) ($85,000 for exacerbation of PTSD as a result of denial of accommodations). We note that these similar cases awarded less than we award now. However, the Commission may consider the present-day value of comparable awards, and adjust the current award accordingly. Lara G. v. U.S. Postal Serv., EEOC Appeal No. 0520130618 (June 9, 2017). We do so here. After reviewing the previous decision and the entire record, the Commission finds that the request fails to meet the criteria of 29 C.F.R. § 1614.405(c), and it is the decision of the Commission to DENY the request. The decision in EEOC Appeal No. 0720180025 remains the Commission's decision. There is no further right of administrative appeal on the decision of the Commission on this request. The Agency shall comply with the Order as set forth below. 2019004795 6 ORDER To the extent it has not already done so, the Agency shall provide the following remedial relief within sixty (60) calendar days (unless otherwise noted) of the date this decision is issued: 1. Pay Complainant $90,000 in non-pecuniary compensatory damages. 2. Pay Complainant $11,118.80 in pecuniary compensatory damages. 3. Pay Complainant her reasonable attorney’s fees and costs as detailed below in the paragraph entitled “Attorney’s Fees.” 4. Consider taking disciplinary action against the responsible management official, S2b. If the Agency decides not to take disciplinary action, it shall set forth the reason for its decision not to impose discipline. If the identified employees are no longer employed by the Agency, the Agency shall furnish proof of the date of separation. The Commission does not consider training to be disciplinary action. 5. Within 90 calendar days from the date this decision is issued, the Agency shall provide eight hours of in-person training to all supervisors, managers, and management advisory staff for the Republic, Washington facility regarding their responsibilities under the Rehabilitation Act with special emphasis on reasonable accommodation. The Agency shall provide proof of the contents of the training provided. 6. Within 30 calendar days of the date this decision is issued, the Agency shall post a finding notice, as provided in the statement entitled “Posting Order.” 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 implementation of the corrective actions ordered. POSTING ORDER (G0617) The Agency is ordered to post at its Republic, Washington facility copies of the attached notice. Copies of the notice, after being signed by the Agency's duly authorized representative, shall be posted both in hard copy and electronic format by the Agency within 30 calendar days of the date this decision was issued, and shall remain posted for 60 consecutive days, in conspicuous places, including all places where notices to employees are customarily posted. The Agency shall take reasonable steps to ensure that said notices are not altered, defaced, or covered by any other material. The original signed notice is to be submitted to the Compliance Officer as directed in the paragraph entitled "Implementation of the Commission's Decision," within 10 calendar days of the expiration of the posting period. The report must be in digital format, and must be submitted via the Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). 2019004795 7 ATTORNEY'S FEES (H1019) If Complainant has been represented by an attorney (as defined by 29 C.F.R. § 1614.501(e)(1)(iii)), she/he 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 receipt of this decision. The Agency shall then process the claim for attorney's fees in accordance with 29 C.F.R. § 1614.501. IMPLEMENTATION OF THE COMMISSION’S DECISION (K0719) Under 29 C.F.R. § 1614.405(c) and §1614.502, compliance with the Commission’s corrective action is mandatory. Within seven (7) calendar days of the completion of each ordered corrective action, the Agency shall submit via the Federal Sector EEO Portal (FedSEP) supporting documents in the digital format required by the Commission, referencing the compliance docket number under which compliance was being monitored. Once all compliance is complete, the Agency shall submit via FedSEP a final compliance report in the digital format required by the Commission. See 29 C.F.R. § 1614.403(g). The Agency’s final report must contain supporting documentation when previously not uploaded, and the Agency must send a copy of all submissions to the Complainant and his/her representative. If the Agency does not comply with the Commission’s order, the Complainant may petition the Commission for enforcement of the order. 29 C.F.R. § 1614.503(a). The Complainant also has the right to file a civil action to enforce compliance with the Commission’s order prior to or following an administrative petition for enforcement. See 29 C.F.R. §§ 1614.407, 1614.408, and 29 C.F.R. § 1614.503(g). Alternatively, the Complainant has the right to file a civil action on the underlying complaint in accordance with the paragraph below entitled “Right to File a Civil Action.” 29 C.F.R. §§ 1614.407 and 1614.408. A civil action for enforcement or a civil action on the underlying complaint is subject to the deadline stated in 42 U.S.C. 2000e-16(c) (1994 & Supp. IV 1999). If the Complainant files a civil action, the administrative processing of the complaint, including any petition for enforcement, will be terminated. See 29 C.F.R. § 1614.409. Failure by an agency to either file a compliance report or implement any of the orders set forth in this decision, without good cause shown, may result in the referral of this matter to the Office of Special Counsel pursuant to 29 CFR § 1614.503(f) for enforcement by that agency. COMPLAINANT’S RIGHT TO FILE A CIVIL ACTION (R0610) This is a decision requiring the Agency to continue its administrative processing of your complaint. However, if you wish to file a civil action, you have the right to file such action in an appropriate United States District Court within ninety (90) calendar days from the date that you receive this decision. In the alternative, you may file a civil action after one hundred and eighty (180) calendar days of the date you filed your complaint with the Agency or filed your appeal with the 2019004795 8 Commission. If you file a civil action, you must name as the defendant in the complaint the person who is the official Agency head or department head, identifying that person by his or her full name and official title. Failure to do so may result in the dismissal of your case in court. “Agency” or “department” means the national organization, and not the local office, facility or department in which you work. Filing a civil action will terminate the administrative processing of your complaint. RIGHT TO REQUEST COUNSEL (Z0815) If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may request permission from the court to proceed with the civil action without paying these fees or costs. Similarly, if you cannot afford an attorney to represent you in the civil action, you may request the court to appoint an attorney for you. You must submit the requests for waiver of court costs or appointment of an attorney directly to the court, not the Commission. 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 January 25, 2021 Date