0120111751
02-23-2012
Dasari Reddy, Complainant, v. Eric K. Shinseki, Secretary, Department of Veterans Affairs, Agency.
Dasari Reddy,
Complainant,
v.
Eric K. Shinseki,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 0120111751
Hearing No. 480-2009-00418X
Agency No. 200P-0691-2008103569
DECISION
Complainant filed an appeal from the Agency’s January 20, 2011 Final
Order 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
Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act),
as amended, 29 U.S.C. § 791 et seq. For the following reasons, the
Commission AFFIRMS the Agency’s Final Order.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked
as a Staff Nurse at the Agency’s Veterans Administration (VA) Greater
Los Angeles (GLA) Healthcare System facility in Los Angeles, California.
On October 10, 2009, Complainant filed an EEO complaint alleging that the
Agency discriminated against him on the bases of sex (male), disability
(neck/spinal cord injuries and shoulder/knee injuries), and in reprisal
for prior protected EEO activity when:
A. On June 9, 2008, Complainant was not permitted to return to
his position when he was allowed to report to work, and he was told
"do what is told" when he asked for an explanation;
B. On October 1, 2008, Complainant was taken out of his current
position in Nursing and reassigned back to nursing recruitment for
two days;
C. On October 6, 2008, Complainant was reassigned from nursing
recruitment to the employee health department;
D. Complainant also contends that he was subjected to a hostile
work environment based upon his sex, disability and in reprisal for his
prior EEO activity, when:
1. On January 3, 2008, RN Case Manager N1 called Complainant
incompetent;
2. On January 17, 2008, N1 yelled and spoke to Complainant in a
disrespectful manner in the morning, and again in the afternoon in front
of the Licensed Vocational Nurse ("LVN") Board;
3. On January 17, 2008, Complainant was falsely accused of
threatening N1;
4. (a) On January 28, 2008, the Police were sent to Complainant's
office asking him to leave the workplace for no reason; (b) On January
27, 2008, N2 unlawfully accessed Complainant’s medical records and
terminated his employee access to the VA system;
5. On January 30, 2008, Complainant was placed on administrative
absence and not provided with any explanation;
6. From February 1, 2008 and ongoing, Complainant was removed from
his recruitment position and not provided with any explanation;
7. On March 23, 2008, Complainant was threatened when he was told
to go see a psychiatrist, and that if he did not do so, he would be
terminated by Chief of Employee/Labor Relations M1;
8. On March 27, 2008, Complainant was told by M1 that if he did
not take the fitness for duty examination she was going to terminate
him from his position;
9. On June 9, 2008, Complainant was not permitted to return to
his position when he was allowed to report to work, and he was told
"do what is told" when he asked for an explanation (also identified as
"Claim A." infra);
10. On June 12, 2008, Complainant received two threatening messages,
stating that N1 and M1 were going to get Complainant to lose his job or
they would make him quit;
11. On June 13, 2008, Complainant was advised not to contact N1,
and when he inquired as to why he would try to talk with her, M1 simply
walked away;
12. On June 13, 2008, Complainant was told to move his lunch, and
he has to walk back and forth from his former office to the doctor's
lounge to use the computer;
13. On June 18, 2008, Complainant requested relocation of N1 as a
result of "unknown people" threatening Complainant, that N1 was a "big
shot," and that M1 would help N1 get rid of Complainant from Building 500;
14. On July 15, 2008, Complainant was advised by M1 that he is never
to bring his child to work;
15. On July 28, 2008, while providing a deposition to an investigating
team. Complainant was asked questions about his military career not
related to the incident of January 17, 2008);
16. On July 28, 2008, M1 allowed a close friend of N1 (N2) to be in
the confidential interview room listening to Complainant’s testimony;
17. Between August 1, 2008 and August 23, 2008, M1 called the Long
Beach VA and advised them that Complainant was facing misconduct charges
at the GLA facility;
18. On August 25, 2008, negative information was shared with the
Long Beach VA Medical Center, which prevented Complainant from obtaining
a new position;
19. On September 15, 2008, Complainant advised the Chief of
Human Resources (“HR1") of the misconduct of M1, but HR has avoided
Complainant's request for a personal appointment to discuss the issue;
20. On October 1, 2008, Complainant was taken out of his current
position in Nursing and reassigned back to nursing recruitment for two
days (also identified as "Claim B" infra);
21. On October 6, 2008, Complainant was reassigned from nursing
recruitment to the employee health department (also identified as "Claim
C" in this complaint); and
22. In October 2008, Complainant was asked to move out of a room, which
he used for his daily physical therapy.
At the conclusion of the investigation, the Agency provided Complainant
with a copy of the report of investigation and notice of his right to
request a hearing before an EEOC Administrative Judge (AJ). Complainant
requested a hearing. By order dated June 2, 2010, the assigned AJ (AJ1)
granted in part the Agency’s Motion for a Decision without a Hearing.
Therein, AJ1 determined that Complainant’s complaint, insofar as it is
based on reprisal, did not state a claim because viewing the evidence
in the light most favorable to Complainant, no evidence supported
Complainant’s allegation that he participated in any prior protected
activity other than the filing of the instant complaint. Further,
the AJ found that the material facts surrounding claim (A) were not in
dispute and found no discrimination for claim (A) and for the portion
of the harassment claim concerning incidents (1) - (4(a)) and (5) -
(16). AJ1 denied the remainder of the Agency’s Motion and found that
a hearing was necessary to develop the record with respect to claims (B)
and (C), as well as to the portion of harassment claim (D) concerning
((4)(b)) and (17) - (22). AJ1 held a hearing on July 26, 2010.
Thereafter, AJ2 was assigned to Complainant’s complaint. By order
dated October 21, 2010, AJ2 ordered the parties and specified witnesses to
reconvene for the purpose of adjudicating Complainant’s reprisal claim.
Specifically, AJ2 found that certain facts remained in dispute requiring
a hearing regarding Complainant's retaliation claim, after the date he
requested EEO counseling on June 25, 2008. AJ2 conducted a hearing on
November 2, 2010. Thereafter, AJ2 issued a decision on December 15, 2010.
In her Decision, AJ2 found that the Agency discriminated against
Complainant based on his disability with respect to claim (D)(22)
when Complainant was denied the space and opportunity he required to
perform physical therapy as a reasonable accommodation for his known
disability and with respect to claim (D)(4)(b) when Complainant’s
medical records were twice accessed without Complainant’s knowledge
or consent. With respect to Complainant’s harassment claim, AJ2 noted
that most of the events that comprise Complainant’s harassment claim
were the consequences of N2 overhearing what she claimed was a threat
against N1 made by Complainant. AJ2 found that the Agency’s actions
in claims (5) – (13), (15), and (18) – (22) (not including the claim
of disability for claims (D)(22) and (D)(4)(b)), were taken in direct
response to N2’s report. Though N2’s own credibility was doubtful,
AJ2 found that the Agency articulated legitimate, non-discriminatory
reasons for its actions that Complainant did not show were a pretext.
AJ2 found that the evidence did not support Complainant’s belief that
the remaining events were motivated by discrimination. Accordingly,
AJ2 found that Complainant failed to establish that he was subjected to
a hostile work environment on any basis.
As a remedy, AJ2 ordered the Agency to pay Complainant $6,500.00 for
non-pecuniary, compensatory damages. Specifically, AJ2 found that
Complainant’s knee and shoulder pain was exacerbated by his inability
to perform his physical therapy when he was removed from the room
he used. Further, the AJ found that Complainant endured humiliation
and embarrassment when his confidential medical records were improperly
accessed by N2. AJ2 considered Complainant’s petition for Attorney’s
Fees and awarded Complainant the sum of $8,312.50 for Complainant’s
attorney’s fees. AJ2 ordered the Agency to provide training to N2 and
appropriate Agency staff, to consider discipline for N2, to develop
procedures regarding confidential medical information, and to post a
notice that discrimination occurred at the Agency’s GLA facility.
The Agency subsequently issued a Final Order adopting AJ2’s finding
that Complainant proved that the Agency subjected him to disability
discrimination and fully implementing the relief ordered by AJ2.
On appeal, Complainant challenges the AJ’s findings of
non-discrimination with respect to Complainant’s harassment claim (D),
and further requests that the Commission award the sum of $150,000.00
in non-pecuniary, compensatory damages.
ANALYSIS AND FINDINGS
As a preliminary matter, we find that neither party disputes AJ2’s
finding of discrimination with respect to N2’s unauthorized accessing
of Complainant’s medical records in claim (D)(4)(b) or the Agency’s
denial of Complainant’s reasonable accommodation as described in claim
(D)(22). We therefore confine our discussion to Complainant’s overall
harassment claim (D) and the award of compensatory damages.
Pursuant to 29 C.F.R. § 1614.405(a), all post-hearing factual
findings by an AJ will be upheld if supported by substantial evidence
in the record. Substantial evidence is defined as “such relevant
evidence as a reasonable mind might accept as adequate to support
a conclusion.” Universal Camera Corp. v. National Labor Relations
Board, 340 U.S. 474, 477 (1951) (citation omitted). A finding regarding
whether or not discriminatory intent existed is a factual finding.
See Pullman-Standard Co. v. Swint, 456 U.S. 273, 293 (1982). An AJ's
conclusions of law are subject to a de novo standard of review, whether
or not a hearing was held.
An AJ’s credibility determination based on the demeanor of a witness
or on the tone of voice of a witness will be accepted unless documents or
other objective evidence so contradicts the testimony or the testimony so
lacks in credibility that a reasonable fact finder would not credit it.
See EEOC Management Directive 110, Chapter 9, at § VI.B. (November
9, 1999).
Harassment claim
In Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993), the Supreme
Court reaffirmed the holding of Meritor Sav. Bank v. Vinson, 477 U.S. 57,
67 (1986), that harassment is actionable if it is sufficiently severe
or pervasive to alter the conditions of a complainant's employment.
The Court explained that an "objectively hostile or abusive work
environment [is created when] a reasonable person would find [it]
hostile or abusive:” and the complainant subjectively perceives it
as such. Harris, supra at 21-22. Thus, not all claims of harassment
are actionable. Where a complaint does not challenge an agency action or
inaction regarding a specific term, condition or privilege of employment,
a claim of harassment is actionable only if, allegedly, the harassment
to which the complainant has been subjected was sufficiently severe or
pervasive to alter the conditions of the complainant's employment.
However, it is well-settled that, unless the conduct is very severe,
a single incident or a group of isolated incidents will not be regarded
as creating a discriminatory work environment. See James v. Dep’t of
Health and Human Services, EEOC Request No. 05940327 (Sept. 20, 1994);
Walker v. Ford Motor Company, 684 F.2d 1355 (11th Cir. 1982).
Complainant can establish a prima facie case of reprisal discrimination
by presenting facts that, if unexplained, reasonably give rise to an
inference of discrimination. Shapiro v. Soc. Sec. Admin., EEOC Request
No. 05960403 (Dec. 6, 1996) (citing McDonnell Douglas Corp. v. Green,
411 U.S. 792, 802 (1973)). Specifically, in a reprisal claim, and in
accordance with the burdens set forth in McDonnell Douglas, Hochstadt
v. Worcester Foundation for Experimental Biology, 425 F. Supp. 318, 324
(D. Mass.), aff'd, 545 F.2d 222 (1st Cir. 1976), and Coffman v. Dep’t of
Veteran Affairs, EEOC Request No. 05960473 (Nov. 20, 1997), a complainant
may establish a prima facie case of reprisal by showing that: (1)
he or she engaged in a protected activity; (2) the agency was aware
of the protected activity; (3) subsequently, he or she was subjected
to adverse treatment by the agency; and (4) a nexus exists between the
protected activity and the adverse treatment. Whitmire v. Dep’t of
the Air Force, EEOC Appeal No. 01A00340 (Sept. 25, 2000).
We find no basis upon which to disturb AJ2’s determination that
Complainant was not subjected to a hostile work environment based upon
his sex, disability, or in reprisal for prior protected activity.
We concur with the AJ2 that the Agency provided legitimate,
non-discriminatory reasons for its actions with respect to the
events that comprise Complainant’s harassment claim. For example,
AJ2 considered M1’s explanation that she felt obligated to respond
truthfully when asked a direct question regarding whether Complainant
was under an internal investigation. In another example, AJ2 found,
and we concur, that Complainant was not subjected to any improper
or adverse action when M1 advised Complainant that the hospital was
not an appropriate place for Complainant’s child (claim (D)(14)).
We find AJ2 properly considered the documentary evidence presented and
in her Decision, assessed the credibility of the Agency’s witnesses,
as well as Complainant’s testimony. We find no basis upon which to
disturb AJ2’s findings with respect to Complainant’s harassment
claim, and we find that Complainant did not show that more likely than
not the Agency’s actions were motivated by his sex, disability, or in
reprisal for his prior protected activity. AJ2’s decision finding no
discriminatory harassment is supported by substantial evidence.
Compensatory damages
Compensatory damages may be awarded for the past pecuniary losses,
future pecuniary losses, and non-pecuniary losses which are directly or
proximately caused by an agency's discriminatory conduct. EEOC Enforcement
Guidance: Compensatory and Punitive Damages Available under § 102 of
the Civil Rights Act of 1991, EEOC Notice No. 915.002, at II.A. (July
14, 1992).
Objective evidence of compensatory damages can include statements from
an employee concerning his emotional pain or suffering, 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, 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,
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 v. Dep't of the Navy, EEOC Appeal No. 01922369 (Jan. 5, 1993)).
An award of non-pecuniary, compensatory damages should reflect the extent
to which an agency's discriminatory action directly or proximately caused
the harm as well as the extent to which other factors also caused the
harm. Johnson v. Dep't of the Interior, EEOC Appeal No. 01961812 (June
18, 1998). It is the employee's burden to provide objective evidence
in support of his claim and proof linking the damages to the alleged
discrimination. Papas v. U.S. Postal Serv., EEOC Appeal No. 01930547
(Mar. 17, 1994); Mims v. Dep't of the Navy, EEOC Appeal No. 01933956
(Nov. 24, 1993). The Commission recognizes that not all harms are
amenable to a precise quantification; the burden of limiting the remedy,
however, rests with the employer. Chow v. Dep't of the Army, EEOC Appeal
No. 01981308 (Feb. 12, 2001).
In support of his claim, AJ2 properly considered Complainant’s testimony
that his physical condition was exacerbated by the loss of the reasonable
accommodation Complainant used to be able to conduct physical therapy.
Additionally, Complainant was entitled to an award for the emotional
damage he suffered when his medical records pertaining to his medical
condition were accessed by N2 without his consent. AJ2 noted that
“the record has sparse evidence regarding the duration” of the pain
to Complainant resulting from the denial of accommodation. AJ2 Decision
at 46.
We find that the AJ’s award of $6,500.00 in non-pecuniary, compensatory
damages to be appropriate and is consistent with similar cases.
McCleese v. United States Postal Serv., EEOC Appeal No. 01A32993
(April 22, 2004) (award of $7,500.00 in non-pecuniary, compensatory
damages where Complainant suffered pain to his knee as a result of
having to walk from his workstation, and slipped numerous times; in
addition, the discrimination exacerbated his depression, as confirmed
by his psychiatrist and psychologist, for a period of over six years).
The duration and nature of Complainant’s harm, even considering the
improper access of his medical records, is not as severe as the damages
suffered by the Complainant in McCleese. Therefore, we shall order
the Agency to implement the relief in the AJ’s decision as slightly
modified herein.
CONCLUSION
We AFFIRM the Agency’s Final Order and we Order the Agency to implement
the relief, to the extent it has not already done so, ordered by AJ2 as
slightly modified herein.
ORDER
To the extent that it has not already done so, the Agency shall take
the following remedial actions:
1. Within 60 days of the date this decision becomes final, the Agency
shall pay Complainant $6,500.00 in non-pecuniary, compensatory damages.
2. Within 60 days of the date this decision becomes final, the
Agency shall pay Complainant $8,312.50 for reasonable attorney’s fees.
3. Within 180 days of the date this decision becomes final,
the Agency shall provide training to the employee identified as N2 in
this decision and to all other staff assigned to review the records of
patients who are also employees to ensure such staff are aware of the
confidential nature of the records and how and when such records may be
either accessed or disseminated. The Agency shall institute a protocol
to prevent accidental or "random" access of employee medical records by
non-authorized employees reviewing patient records in the course of their
duties. The Agency shall further ensure that its managers and supervisors
are aware of this protocol, receive training on same, and are required to
train employees new to patient record review duties with respect to the
confidentiality of its employees' medical records. The training shall
also address the proper procedures for accessing the records described
above and the limits of authorization for such access.
4. Within 180 days of the date this decision becomes final, the
Agency shall develop procedures to ensure that Agency staff who access
confidential medical information for the purposes stated in provision
3 of this Order document their compliance with the proper procedures.
5. Within 180 days of the date this decision becomes final,
the Agency shall develop procedures to ensure that the Agency manager
who supervises the Agency staff described in provision 3 of this Order
regularly audits the staff accessing of confidential medical information
to ensure that the proper procedures are followed and appropriate
documentation is generated.
6. Within 180 days of the date this decision becomes final,
the Agency shall consider imposing disciplinary action against N2
for unauthorized access to Complainant’s medical information and for
unauthorized termination of Complainant’s access to the Agency computer
system. The Agency shall report its decision to the Compliance Officer,
referenced herein. If the Agency decides to take disciplinary action,
it shall identify the action taken. If the Agency decides not to take
disciplinary action, it shall set forth the reason(s) for its decision
not to impose discipline. If N2 has left the Agency's employment, then
the Agency shall furnish documentation of N2’s departure dates.
7. Within 180 days of the date this decision becomes final, the
Agency shall provide EEO training to all responsible Agency managers
at GLA Healthcare System facility regarding appropriate procedures for
identifying and responding to requests by Agency employees for reasonable
accommodations and procedures for modifying reasonable accommodations.
The Agency shall send evidence that they have complied with this Order
to the Compliance Officer as referenced herein.
POSTING ORDER (G0610)
The Agency is ordered to post at its Veterans Administration Greater
Los Angeles (GLA) Healthcare System 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.
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 tends 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 (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 (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
February 23, 2012
__________________
Date
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0120111751
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120111751