[Redacted], Wanita Z., 1 Complainant,v.Denis R. McDonough, Secretary, Department of Veterans Affairs, Agency.Download PDFEqual Employment Opportunity CommissionJul 7, 2021Appeal No. 2020001077 (E.E.O.C. Jul. 7, 2021) Copy Citation U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Wanita Z.,1 Complainant, v. Denis R. McDonough, Secretary, Department of Veterans Affairs, Agency. Appeal No. 2020001077 Agency Nos. 200H-0310-2015100252 220H-0310-2015105502 DECISION Complainant filed an appeal with the Equal Employment Opportunity Commission (EEOC or Commission), pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s October 10, 2019 final decision regarding Complainant’s entitlement to compensatory damages. BACKGROUND During the period at issue, Complainant worked as an Assistant Coach at the Agency’s Regional Office, Pension Management Center, in Philadelphia, Pennsylvania. Complainant filed formal EEO complaints on the bases of disability, age, and in reprisal for prior protected EEO Activity when: 1. Between May 2014 and September 17, 2014, management delayed granting and ultimately denied her request to telework as a reasonable accommodation. 2. On August 10, 2015, the former Acting Pension Management Center Director threatened Complainant that she had to use her annual leave when she could not log into her computer. 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. 2020001077 2 3. On August 17, 2015, the Acting Assistant Pension Management Center Director denied her request to work credit time. 4. On August 28, 2015, the former Facility Director failed to respond to her emailed concerns over changes in the flex-time procedures and referred her back to the Center Director. 5. On September 11, 2015, she received an unsatisfactory monthly progress review the period of August 1 to August 31, 2015. 6. On September 18, 2015, the former Acting Pension Management Center Director issued her a notice that her telework agreement was under review and could be revoked. After an investigation, the Agency provided Complainant with a copy of the report of investigation and notice of her right to request a hearing before an Equal Employment Opportunity Commission Administrative Judge (AJ). In accordance with Complainant’s request, the Agency issued a final decision pursuant to 29 C.F.R. § 1614.110(b), finding no discrimination. Complainant appealed. In EEOC Appeal No. 0120171549 (May 17, 2019), we found that Complainant was subjected to unlawful retaliation for requesting a reasonable accommodation with respect to claims (5) and (6). The Agency was ordered to conduct a supplemental investigation regarding Complainant’s entitlement to compensatory damages. However, no discrimination was found regarding the other claims. On October 10, 2019, the Agency issued a final decision regarding Complainant’s entitlement to compensatory damages. The Agency denied Complainant’s request for pecuniary damages. The Agency found that Complainant was seeking back pay and front pay related to her time on leave without pay while awaiting disability retirement and her reduced income while on disability retirement. The Agency found that these were requests for “equitable relief” and were outside the scope of compensatory damages. The Agency awarded Complainant $11,000.00 in non-pecuniary compensatory damages. The Agency reasoned that “much of Complainant’s harm stemmed from factors unrelated to the ‘Unsatisfactory’ performance review, namely, conduct not found to be discriminatory or retaliatory, such as the allegedly hostile work environment…” Final Agency Decision at 13. The instant appeal followed. On appeal, Complainant, regarding her request for pecuniary compensatory damages, asserts that she was not planning to retire and was forced into a constructive discharge due to a hostile work environment. Complainant states that in June 2016, she went on leave without pay pending approval of her disability retirement, which took eight months to be approved. 2020001077 3 Complainant further asserts that her disability retirement has resulted in a reduced income. Finally, Complainant asserts that her award for compensatory damages should be substantially higher than the $11,000.00 awarded by the Agency. ANALYSIS AND FINDINGS As this is an appeal from a decision issued without a hearing, pursuant to 29 C.F.R. § 1614.110(b), the Agency's decision is subject to de novo review by the Commission. 29 C.F.R. § 1614.405(a). See Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614, at Chapter 9, § VI.A. (Aug. 5, 2015) (explaining that the de novo standard of review “requires that the Commission examine the record without regard to the factual and legal determinations of the previous decision maker,” and that EEOC “review the documents, statements, and testimony of record, including any timely and relevant submissions of the parties, and . . . issue its decision based on the Commission’s own assessment of the record and its interpretation of the law”). Pursuant to section 102(a) of the Civil Rights Act of 1991, a complainant who establishes unlawful intentional discrimination under either Title VII of the Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. § 2000e et seq. or Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq. may receive 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) as part of this “make whole” relief. 42 U.S.C. § 1981a(b)(3). In West v. Gibson, 527 U.S. 212 (1999), the Supreme Court held that Congress afforded the Commission the authority to award compensatory damages in the administrative process. 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. 42 U.S.C. § 1981a(b)(3). To receive an award of compensatory damages, a complainant must demonstrate that he or she has been harmed as a result of the agency's discriminatory action; the extent, nature, and severity of the harm; and the duration or expected duration of the harm. Rivera v. Dep't of the Navy, EEOC Appeal No. 01934157 (July 22, 1994), req. for recons. den., EEOC Request No. 05940927 (Dec. 11, 1995); Compensatory and Punitive Damages Available Under Section 102 of the Civil Rights Act of 1991, EEOC Notice No. 915.002 (July 14, 1992), at 11-12, 14. Pecuniary Compensatory Damages The Agency properly denied Complainant’s request for pecuniary damages. Complainant is seeking $791,968.00 for back pay, front pay, and financial losses regarding her disability retirement in 2016. In EEOC Appeal No. 0120171549, OFO only found that Complainant was subjected to retaliation with respect to claims (5) and (6). OFO did not find that Complainant was subjected to a hostile work environment or that Complainant was constructively discharged (by being forced into disability retirement). If Complainant disagreed with OFO’s findings on these matters, she should have requested reconsideration of EEOC Appeal 0120171549. 2020001077 4 However, Commission records reflect that Complainant did not file a request for reconsideration. Thus, Complainant’s request for back pay and front pay are outside the scope of OFO’s finding and Order set forth in EEOC Appeal No. 0120171549. In addition, Complainant’s requests for back pay and front are not compensatory damages, but rather equitable relief. See Carter v. Dep’t of Veterans Affairs, EEOC Appeal No. 0120122266 (Oct. 18, 2012). Thus, these requests and are beyond the scope of EEOC Appeal No. 0120171549. Non-pecuniary Compensatory Damages We further concur that the Agency’s award of $11,000.00 in non-pecuniary compensatory damages is appropriate.2 While Complainant submit statements from her children, brother, and physicians, these statements generally discuss Complainant’s anxiety, depression, and despondent feelings pertaining to an overall hostile work environment and her inability to no longer work. For example, the record contains a signed statement from one of Complainant’s daughters. Therein, one of the daughter states “[t]he inability to work has caused my mother a great deal of grief and anguish which could have been prevented if she did not feel that she was being forced into retirement due to the harsh and unfair treatment that she encountered.” In addition, the record contains a signed statement from a psychotherapist who stated that Complainant was assessed to have Adjustment Disorder with anxiety and depression and that “[t]he precipitating factor for said symptoms were her unexpectant loss of employment which put [Complainant] in a dire financial strait.” However, as discussed above, our decision in EEOC Appeal No. 012017159 only found retaliation with respect to claims (5) and (6), a one- month unsatisfactory progress review and a memorandum that her telework agreement was under review and could be revoked.3 However, we find that based on the record before us at least some of the mental anguish Complainant experienced during the relevant time period was due to the events set forth in claims (5) and (6). For example, Complainant asserts that her character and integrity were challenged by the negative evaluation. In addition, she asserts that the evaluation really upset her and that she became very anxious. We find that an award of $11,000.00 in non-pecuniary damages is not monstrously excessive and is consistent with the awards in similar cases. See Kit. R. v. Dep’t of Defense, EEOC Appeal No. 0120140952 (Sept. 23, 2016) (awarding Complainant $8,000.00 in non-pecuniary damages for a negative performance appraisal that was due to unlawful retaliation; however, OFO noted that some of the documentation from family members and physicians regarding complainant’s pain and suffering focused on general working conditions rather than specifically the retaliatory performance appraisal). 2 Complainant is seeking $500,000.00 in non-pecuniary compensatory damages. 3 The record reflects that Complainant was allowed to continue to telework subsequent to the memorandum. 2020001077 5 Accordingly, we AFFIRM the Agency’s final decision and we REMAND this matter to the Agency to take the corrective action set forth in the ORDER below. ORDER Within sixty (60) days from the date this decision is issued, to the extent it has not already done so, the Agency shall take the following actions: 1. Pay Complainant $11,000.00 in non-pecuniary compensatory damages. 2. The Agency is further directed to submit a report of compliance, as provided, in the statement entitled “Implementation of the Commission’s Decision.” 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 C.F.R. § 1614.503(f) for enforcement by that agency. 2020001077 6 STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0920) The Commission may, in its discretion, reconsider this appellate decision if Complainant or the Agency submits a written request that contains arguments or evidence that 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 for reconsideration must be filed with EEOC’s Office of Federal Operations (OFO) within thirty (30) calendar days of receipt of this decision. If the party requesting reconsideration elects to file a statement or brief in support of the request, that statement or brief must be filed together with the request for reconsideration. A party shall have twenty (20) calendar days from receipt of another party’s request for reconsideration within which to submit a brief or statement in opposition. 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). Complainant should submit his or her request for reconsideration, and any statement or brief in support of his or her request, via the EEOC Public Portal, which can be found at https://publicportal.eeoc.gov/Portal/Login.aspx Alternatively, Complainant can submit his or her request and arguments to the Director, Office of Federal Operations, Equal Employment Opportunity Commission, via regular mail addressed to P.O. Box 77960, Washington, DC 20013, or by certified mail addressed to 131 M Street, NE, Washington, DC 20507. In the absence of a legible postmark, a complainant’s request to reconsider shall be deemed timely filed if OFO receives it by mail within five days of the expiration of the applicable filing period. See 29 C.F.R. § 1614.604. An agency’s request for reconsideration must be submitted in digital format via the EEOC’s Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). Either party’s request and/or statement or brief in opposition must also include proof of service on the other party, unless Complainant files his or her request via the EEOC Public Portal, in which case no proof of service is required. Failure to file within the 30-day time period will result in dismissal of the party’s request for reconsideration as untimely, unless extenuating circumstances prevented the timely filing of the request. Any supporting documentation must be submitted together with the 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). 2020001077 7 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 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 July 7, 2021 Date Copy with citationCopy as parenthetical citation