0120113591
09-12-2013
William B. Smith, Complainant, v. Eric K. Shinseki, Secretary, Department of Veterans Affairs, Agency.
William B. Smith,
Complainant,
v.
Eric K. Shinseki,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 0120113591
Agency No. 200I-0534-2007101565
DECISION
On July 25, 2011, Complainant filed a timely appeal from a July 15, 2011, final Agency decision (FAD) with the Equal Employment Opportunity Commission (EEOC or Commission) concerning his 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. and the Equal Pay Act of 1963 (EPA), as amended, 29 U.S.C. � 206(d) et seq. The Commission accepts the appeal pursuant to 29 C.F.R. � 1614.405(a).
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Medical Administrative Officer at the Agency's Community Based Outpatient Clinic in Savannah, Georgia.
In Smith v. Department of Veterans Affairs (Veterans Health Administration), EEOC Appeal No. 0120091163 (Jan. 21, 2011), the EEOC found that the Agency violated the EPA, and hence Title VII based on Complainant's sex when effective April 17, 2005, it did not pay him at the GS-13 level. The EEOC ordered that that the Agency promote Complainant to GS-13 at the appropriate step retroactive to April 17, 2005, pay back pay with interest and other benefits, and awarded him under EPA liquidated damages totaling an amount equal to the back pay with interest. It also ordered the Agency to provide Complainant the opportunity to claim compensatory damages under Title VII and then issue a FAD thereon. The EEOC instructed that Complainant may recover under both EPA and Title VII for the same period of time so long as he does not receive duplicate relief for the same wrong. 29 C.F.R. � 1620.27(b). Citing case law, the EEOC advised that Title VII compensatory damages may be paid only to the extent that they exceed the amount of EPA liquidated damages.
Complainant stopped working on or about September 11, 2008, and he retired from the Agency on or about January 1, 2009. The Department of Veterans Affairs, in connection with receiving service connected disability compensation, rated Complainant with a permanent and total disability effective September 11, 2008. The Office of Personnel Management approved Complainant's disability retirement application by September 10, 2009.
On remand, the Agency conducted an investigation on compensatory damages. Complainant claimed past and future pecuniary damages, and non-pecuniary damages. He requested past pecuniary damages for moving expenses, storage fees, health insurance premiums, and medical co-pays for his psychiatrist; future pecuniary damages for health insurance premiums, medical co-pays for his psychiatrist, and loss of future pay, and non-pecuniary damages for a total amount of $86,740.
The Agency awarded Complainant a total of $1,500 in non-pecuniary damages. It reasoned that Complainant suffered from anxiety and depression long prior to the discrimination, and only a small portion of the exacerbation thereof was caused by the discrimination. The Agency noted that Complainant's marriage problems began prior to the discrimination. It found that Complainant did not prove any pecuniary damages. The Agency reasoned that he submitted no receipts, invoices or other documentation. In reference to moving expenses after his disability retirement, the Agency found that there was not a finding of discrimination regarding his retirement.
On appeal, Complainant contends that he was incorrectly advised by the EEO investigator that $30,000 was the acceptable limit for his claim of compensatory damages, and hence he lowered the amount of damages he requested. Complainant raises his request for damages to $300,000, and indicates he already submitted his evidence therefore. Regardless of what the investigator advised, we will award compensatory damages based on the evidence, not the amount Complainant initially requested.
ANALYSIS AND FINDINGS
Compensatory damages may be awarded for past pecuniary losses (out-of-pocket loss), future pecuniary losses (out-of-pocket loss likely to occur after the conclusion of the litigation), 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 suffering and loss of enjoyment of life. Damages for past pecuniary damages will not normally be sought without documentation such as receipts, records, bills, cancelled checks, or confirmation by other individuals, or other proof of actual losses or expenses. Id. Compensatory damages are awarded to compensate for losses or suffering inflicted due to discrimination.
Complainant wrote that he was diagnosed in 1979 by the Army with anxiety, major depression, and esophageal reflux; in 1983 with a herniated disc, in 1989 with insomnia, in 2000 with cervical radiculopathy, in 2002 with post traumatic stress disorder (PTSD), and in 2005 with obstructive sleep apnea. His primary care physician opined that the obstructive sleep apnea probably began years earlier when Complainant was on active duty. Complainant indicated the PTSD was caused by incidents in March 1996, May 1996, and April 1997 while he was still in the military.
Complainant wrote that his anxiety and depression caused him to feel bad and negative most of the time, to have continuous stomach and chest pains and negative obsessions, and to isolate himself, including from his wife and family. He wrote that the PTSD caused him to be in a state of paranoia and to feel guilty most of the time, to have daily flashback episodes, and stress makes him feel hyper vigilant and irritable. He stated his neck and back problems, as applicable, causes ongoing radiating pain, stiffness, restricts his ability to walk, sit, stand and type, and prevents him from sleeping more than four hours a day.
Complainant started working in Savannah, Georgia in June 2004, and indicated that the harassment there exacerbated virtually all his symptoms. In connection with this, in writings to the Office of Workers' Compensation Programs (OWCP) Complainant mentioned he did not get equal pay since he started working in with the Agency in a prior job in 2001, but did not emphasize this and went on at much greater length about alleged harassment. He wrote that the Savannah clinic did not have sufficient administrative and medical staff to handle the patient workload. He stated that while there was no psychiatrist available, management wanted him to schedule fictitious appointments for one, and refused to allow him to put patients on a wait list that could not be seen within 30 days. He wrote that that while there was an Agency mandatory electronic waitlist policy, management did not want people on the list, and when he created one got very upset. He stated that in Directors meetings in October and December 2005, which are attended by department chiefs and supervisors, he was blamed for the supervisors not getting bonuses because he would not make dishonest mental health appointments. In a September 2008 pre-hearing statement on compensatory damages, Complainant wrote that the biggest stress placed on him from August 20004 to April 2007 was his superiors trying to force him to accept a no wait list policy and make false patient wait time reports.
In his writings to OWCP explaining the exacerbation of his medical conditions, Complainant wrote his clinic did not have a desirable telephone answer rate because of insufficient staff. He wrote that he was forced to report his numbers at Directors meetings from August 2005 to April 2007, which occurred twice a week, and people would holler to boo his numbers and rejoice at others better numbers, and this was the most humiliating 18 months of his life. Complainant continued that due to the lack of administrative staff, he worked overtime and weekends to perform work himself. He stated that his appraisal ratings were lowered in November 2005, 2006 and 2007, and he was denied bonuses. Complainant wrote that he got a proposed suspension for three days on June 12, 2007, for inappropriate behavior to a Patient Services Assistant for not taking an emergency telephone call, which was reduced to one day, and this caused his PTSD to explode. He wrote he got a proposed seven day suspension on September 3, 2008, for refusing to make an appointment for a nurse, which "was like a bomb that had been ticking" and his health care professionals then removed him from the work environment.
In mentioning unequal pay in a compensatory damages questionnaire completed prior to the remand, Complainant wrote his stress level was high in 2004 when he found out the Agency was telling him they were going to compensate him but had no intention to do so, and the unfair pay lowered his self-esteem, and made him feel embarrassed, and he had been underpaid since 2001.
Complainant's psychologist wrote that she started seeing Complainant in April 2005 for treatment of PTSD, Stress Disorder, Major Depression, and Anxiety, and he did not disclose problems at work until June 2007. In October 2007, she expressed concern about Complainant's allegations that he was forced to participate in Directors meetings from August 2005 to April 2007 twice a week where he was ridiculed in front of his peers and superiors. In the papers Complainant submitted the psychologist did not mention unequal pay. Complainant started seeing a psychiatrist in September 2008. The psychiatrist suggested that in June 2007 Complainant reported to the psychologist that he had been working in a hostile environment without recognition of his achievements, without appropriate compensation, and was subject to weekly ridicule in meetings by his peers and supervisors. In October 2008, the psychologist opined that Complainant's emotional state was severely aggravated in the last year, and if things were at work as Complainant reported -- unfair performance evaluations, hostile and disrespectful superiors, not getting appropriate respect for his accomplishments, and not fulfilling promises of getting increased pay, this could aggravate his emotional conditions.
Complainant's primary care physician opined in September 2008 that work related stress would increase Complainant's pain perception level of cervical radiculopathy and back pain, and may worsen his reflux GERD (reflux) and insomnia. Report of Investigation, Exh. 9, 2nd page.
On the remand investigation regarding compensatory damages, Complainant stated it was depressing not to get fair pay, and it caused mistrust, and affected his anxiety and PTSD. He contended that one of the reasons he was unable to bring his wife to Savannah was that he had insufficient funds to maintain two households, but he did not explain why this prevented them from being together. Complainant described bad marital problems over the years with his wife, including the start of divorce proceedings in 2004 and 2008.
EEOC Appeal No. 0120091163 found discrimination only with regard to unequal pay, and ordered the Agency to calculate compensatory damages arising there from. Accordingly, Complainant is only entitled to compensatory damages arising from unequal pay, and no other matter in connection with this case.
As an initial matter, we find that at this point Complainant is not entitled to compensatory damages related to his disability retirement, i.e., moving and storage expenses, and to the extent they are related, ongoing health insurance premiums. Up to now there has not been a finding that he was constructively discharged, and the record does not show he retired on disability because of unequal pay.
Complainant asks for payment of his psychiatrist's medical bills, and health insurance premiums incurred or insurance he desires to have. He has not shown that he incurred medical expenses due to the unequal pay. While he started seeing a psychologist in April 2005, he did not raise work issues until June 2007, around the time of his first proposed suspension, and the psychologist mostly expressed concern about the allegedly harassing Directors meetings. Also, Complainant did not submit any bills or invoices for the psychiatrist expenses. Complainant has not proven pecuniary damages.
After careful consideration of the evidence of record, we find an award of $10,000 for nonpecuniary, compensatory damages is appropriate. This amount takes into consideration the severity of the harm suffered and is consistent with prior Commission precedent. See Rowan v. Department of Veterans Affairs, EEOC Appeal No. 0120070384 (June 19, 2009) (The EEOC awarded Complainant $10,000 for non-pecuniary damages where Complainant established that at least some of the exacerbation of his stress, humiliation, anxiety, sleeplessness, fears of termination, and depression were attributable to the discriminatory conduct). Complainant received unequal pay for over three years. While we find this was not the primary reason for the exacerbation, but one of many factors, it did contribute to the exacerbation of Complainant's anxiety, depression, PTSD, and perception of physical pain.
Complainant is awarded $10,000 in non-pecuniary damages.
ORDER
The Agency is ordered to take the following remedial action:
To the extent it has not already paid Complainant non-pecuniary damages in connection with this case, the Agency shall pay him $10,000 in non-pecuniary damages with the following proviso. The Agency shall make such payment only to the extent these compensatory damages exceed the liquidated damages in this case.1
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 verifying that the corrective action has been implemented.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0610)
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 77960, Washington, DC 20013. The Agency's report must contain supporting documentation, and the Agency must send a copy of all submissions to the Complainant. 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.
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
September 12, 2013
__________________
Date
1 In Smith v. Department of Veterans Affairs, Petition No. 0420120003 (Mar. 21, 2013), the EEOC recounted that Complainant submitted documentation indicating he received payments from the Agency for $48,109.05 in liquidated damages, and $1,500 in compensatory damages, but the record did not show what back pay had been paid. To the extent the Agency refers to payments already made in the process of complying with this order, the Agency shall submit documentation to the EEOC Compliance Officer of them.
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0120113591
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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