Jeanne M. Durrant v. Department of Veterans Affairs
01A13031
9/4/02
.
Jeanne M. Durrant,
Complainant,
v.
Anthony J. Principi,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 01A13031
Agency No. 95-1152
DECISION
Complainant timely initiated an appeal from a final agency decision
(FAD) concerning her claim of compensatory damages, which stemmed from
her complaint of unlawful 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 Section 501 of the Rehabilitation Act of 1973
(Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq. The appeal
is accepted pursuant to 29 C.F.R. § 1614.405. For the following reasons,
the Commission AFFIRMS the agency’s final decision.
The record reveals that during the relevant time, complainant was
employed as a Psychologist at the agency’s Rochester, New York facility.
Complainant sought EEO counseling and subsequently filed a formal
complaint on December 29, 1994, alleging that she was discriminated
against on the bases of sex (female) and disability (polio) when her
supervisor: (1) applied work-related and non work-related standards to her
that he did not apply to her non-disabled male colleagues; (2) subjected
her to a level of scrutiny that was “unparalleled” and “irrational”;
(3) directed her to perform tasks that he never directed her non-disabled
male colleagues to perform; and (4) forced her to perform physical tasks
that he knew she was unable to perform.
Following an investigation into the complaint, the agency issued a
final decision finding no discrimination. Complainant appealed,
and we reversed. See Durrant v. Department of Veterans Affairs,
EEOC Appeal No. 01971885 (September 15, 2000). In that decision, we
determined complainant established she was subjected to discrimination
on the bases of sex and disability, and ordered appropriate relief,
including $70,000 in non-pecuniary damages. We also ordered the agency
to investigate complainant’s claim of future pecuniary damages since
there was no evidence that complainant was on notice of her right to
submit documentation as to her future medical expenses.
The agency completed a supplemental investigation as ordered, and issued
a final decision on March 28, 2001. In its final decision, the agency
noted that complainant claimed $4,917.00 for pecuniary damages for
chiropractic care, massage therapy, and drug prescriptions between 1995
and 2001. After a review of the testimony of complainant’s chiropractor,
massage therapist, and primary physician, the agency determined that
complainant’s elevated blood pressure, increased shoulder pain, back
pain, and complications from using crutches were caused by the agency’s
discriminatory practices. As such, the agency awarded complainant
$4,917.00 for medical expenses related to the issues between the time of
the original investigation in 1995, and the supplemental investigation
in 2001.
However, the agency also determined that complainant failed to provide
sufficient evidence to support her request for life time chiropractic
care, massage therapy, and drug prescriptions. Specifically, the agency
denied the request for future medical expenses because the agency was
unable to calculate the actual costs and frequency of each treatment.
In that regard, the agency noted the record was disputed as to how many
chiropractic sessions complainant required per month. Furthermore,
there was a dispute as to how much the massage therapy and nutritional
supplements cost.
Complainant also claimed medical expenses related to a wheelchair and
shoulder surgery that her witnesses testified may be necessary. However,
the agency denied this request because the expenses were too speculative.
Finally, complainant claimed future expenses related to orthodic shoes,
and modifications to her home including a bathtub with jets and wheelchair
accessible bathroom. The agency denied these claims because complainant
failed to produce evidence as to the costs of these expenses.
On appeal, complainant contends that if the agency was unclear about
complainant’s future medical expenses, it should have conducted a more
thorough investigation. Complainant presents an actuary table indicating
complainant’s life expectancy and urges us to consider this evidence in
determining complainant’s future medical expenses. Furthermore, she
argues that the shoulder surgery and wheelchair are not speculative,
and supplied receipts and estimates for the orthodic shoes, and home
remodeling plans. The agency requests that we affirm its FAD, and argues
that complainant had a full and fair opportunity to present all evidence
of costs and treatment duration during the investigation. The agency
also contends that complainant’s physical problems can be traced back
to other injuries and illnesses unrelated to the discrimination.
ANALYSIS AND FINDINGS
Pursuant to Section 102(a) of the Civil Rights Act of 1991, a complainant
who establishes her claim of unlawful discrimination may receive, in
addition to equitable remedies, compensatory damages for past and future
pecuniary losses (i.e., out-of-pocket expenses) and non-pecuniary losses
(i.e., pain and suffering, mental anguish). 42 U.S.C. § 1981a(b)(3).
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. The Supreme Court has confirmed that the
Commission possesses the legal authority to require federal agencies
to pay compensatory damages. See West v. Gibson, 527 U.S. 212 (1999).
The particulars of what relief may be awarded, and the proof necessary to
obtain that relief, are set forth in detail in Compensatory and Punitive
Damages Available Under Section 102 of the Civil Rights Act of 1991,
EEOC Notice No. 915.002 (July 14, 1992)(Compensatory Damages Notice).
Briefly stated, the complainant must submit evidence to show that the
agency’s discriminatory conduct directly or proximately caused the losses
for which damages are sought. See Damiano v. United States Postal
Service, EEOC Request No. 05980311 (February 26, 1999). The amount
awarded should reflect the extent to which the agency’s discriminatory
action directly or proximately caused harm to complainant and the extent
to which other factors may have played a part. See Compensatory Damages
Notice, at 11-12.
As an initial matter, we note that the agency already approved
complainant’s medical expenses incurred between the time of the original
investigation and the supplemental investigation in the amount of
$4,917.00. Complainant also claims, however, that she requires massage
therapy, chiropractic treatment, and prescription medication for the
rest of her life as a result of the agency’s discriminatory actions.
After a review of the record, however, we find that complainant’s evidence
does not contain sufficient specificity for us to make a determination
as to the costs of some of her treatments. For instance, complainant’s
massage therapist states that her therapy costs $50.00 per session,
but complainant states that the charge is $55.00. Furthermore, her
chiropractor claims that complainant requires treatment two times a month,
and complainant states that she requires treatment two times per week.
Disputes such as these should have been resolved by complainant and her
attorney during the supplemental investigation. It is the complainant’s
burden to provide objective evidence in support of her claim and proof
linking the damages to the alleged discrimination. See Papas v. USPS,
EEOC Appeal No. 01930547 (March 17, 1994); Mims v. Department of the
Navy, EEOC Appeal No. 01933956 (November 24, 1993). Furthermore,
the objective evidence must demonstrate that 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. Department of the Navy, EEOC Appeal No. 01934157 (July 22,
1994). Even on appeal, complainant only presents argument and an actuary
chart to determine how many years long the expected treatment should be,
rather than the costs of treatment.
As for complainant’s claim that she requires shoulder surgery,
a wheelchair, and home remodeling to accommodate her wheelchair,
we decline to award her damages for such expenses. In that regard,
we note complainant only submitted documentary evidence detailing these
expenses on appeal, despite our remand of this matter for the express
purpose of presenting and establishing her need for future medical
expenses. As a general rule, no new evidence will be considered on
appeal unless there is an affirmative showing that the evidence was not
reasonably available prior to or during the investigation. See Equal
Employment Opportunity Management Directive for 29 C.F.R. Part 1614
(EEO MD- 110), 9-15 (November 9, 1999). Furthermore, we note there
is limited evidence that complainant’s shoulder surgery was caused
by the agency’s discriminatory actions, as opposed to other factors.
Complainant’s claim for a wheelchair and home improvement costs stem from
the need for surgery, and are speculative in nature. As such, we decline
to award complainant future pecuniary damages related to these claims.
Complainant presented on appeal receipts related to her orthodic shoes.
However, she failed to provide any evidence as to who recommended
that she wear the shoes, and what problem they were meant to correct..
As such, we are unable to determine whether they were related to the
discrimination, or a pre-existing condition.
Finally, we note that complainant’s attorney has submitted his
fee petition in the instant appeal. EEOC Regulation 29 C.F.R. §
1614.501(e)(2) requires that complainant’s attorney submit his fee
petition to the agency for a decision along with a right to appeal to
the Office of Federal Operations. Complainant’s attorney is directed
to the paragraph and order below.
Therefore, after a careful review of the record, including complainant’s
contentions on appeal, the agency’s response, and arguments and evidence
not specifically addressed in this decision, we affirm the FAD.
ORDER (C0900)
The agency is ordered to take the following remedial action:
To the extent that the agency has not yet done so, the agency is ordered
to pay complainant $4,917.00 in pecuniary damages within thirty (30)
days of the date this decision becomes final.
To the extent that the agency has not yet done so, the agency shall
pay complainant’s reasonable attorney’s fees and costs in accordance
with the paragraph below.
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.
ATTORNEY’S FEES (H0900)
If complainant 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’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 this
decision becoming final. 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 (K0501)
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
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 (M0701)
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), 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 19848,
Washington, D.C. 20036. 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 (S0900)
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 (Z1199)
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:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
9/4/02
Date
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days after it was mailed. I certify
that this decision was mailed to complainant, complainant’s representative
(if applicable), and the agency on:
__________________
Date
______________________________
Equal Opportunity Assistant
