Arlene S.

Complainant hereby submits this brief in support of his appeal which was filed on May 13, 2019. The appeal brief deadline was extended to July 29, 2019. On April 10, 2019, the Final Agency Decision was filed by Gregory B. Smith, Director, of the Office of Civil Rights. ISSUE ON APPEAL The issue before the U. S. Department of State Office of Civil Rights is whether the Department erred by awarding the minimum amount of $2,000.00 in non-pecuniary compensatory damages, when: (a) The Complainant prevailed on his claims of discrimination; (b) The Complainant was subjected to a hostile work environment as an individual with a workplace injury that caused the disability; (c) The Complainant’s workplace injury has caused him on-going pain and suffering both physically and emotionally; and (d) The Agency has mischaracterized and/or omitted factors that are crucial to the determination of actual damages. STATEMENT OF THE CLAIM Because of Complainant's disability (torn left MCL, torn left rotator cuff and left toe), he was discriminated against when: 1.He was denied a reasonable accommodation; 2.On August 17, 2017, he received a memo regarding disciplinary action; 3.On September 20, 2017, he received a Letter of Warning; and 4.He was subjected to a hostile work environment, characterized by, but not limited to heightened scrutiny regarding his requests for leave, inappropriate language, and yelling. PROCEDURAL HISTORY Complainant first contacted an EEO Counselor on September 20, 2017. (Counselor's Report, [CR] p. 1). Complainant's claims were not resolved through the counseling process; therefore, the EEO Counselor issued a "Notice of Right to File" on December 19, 2017 (Report of Investigation [ROI, p. 25]). On January 3, 2018, Complainant filed a formal complaint of discrimination (ROI, p. 34). The Department's letter, dated January 31, 2018, partially accepted the complaint for 1 processing, pursuant to 29 C.F.R. Section 1614, et seq., as specified in the "Statement of the Claim" above (ROI, p. 35). Investigation of the claim was concluded on July 12, 2018, and the Report of Investigation was submitted to the Agency. Following receipt of that report, which was sent to Complainant on July 13, 2018, Complainant had 30 days within which to request a hearing before an Administrative Judge of the Equal Employment Opportunity Commission or a final agency decision (FAD) without a hearing. Complainant failed to make an election as required by 29 C.F.R. §-(f). Therefore, in accordance with 29 C.F.R. §-(b), this FAD on the record is being issued. STATEMENT OF THE FACTS At all times relevant to the matters raised in the accepted claim, Complainant was a Motor Vehicle Operator, WG-08, working in the U.S. Department of State's Bureau of Administration, Operations Division, General Services Management, Fleet Management and Operations (A/OPR/GSM/FMO), 2201 C Street NW Department of State, Washington DC 20520. Complainant entered on duty with the Department of State on August 14, 2011, and received Safe Driving Awards in 2012, 2013, 2014, 2015 and 2016. His first-level supervisor was Michael Passmore. Complainant stated he had a torn medial collateral ligament (MCL) in his left knee, a torn rotator cuff tendon in his left shoulder, and injury to a toe on his left foot. These injuries occurred when he fell on the job. Complainant affirmed he was diagnosed with his injury on December 17, 2016. Complainant described his physical limitations as being unable to handle luggage with his left arm and being unable to walk more than twenty-five feet. This restricted his ability to drive. Under doctor's orders, he was unable to drive a van or fifteen-passenger bus and restricted to driving a sedan, and then only for four hours per day. Complainant noted he provided medical documentation. He stated he requested a reasonable accommodation, but nobody ever got back to him on his request. LEGAL FRAMEWORK Title VII of the Civil Rights Act of 1964, as amended, §§ 701 et seq., 42 U.S.C. §§ 2000e et seq. ("Title VII") prohibits discrimination based on race, color, sex, religion, national origin, and reprisal. Discrimination based on disability is prohibited by the Rehabilitation Act of 1973, as amended; the Americans with Disabilities Act (ADA) of 1990, as amended; and the ADA Amendments Act of 2008 (ADAAA). 2 To succeed in a disparate treatment claim, Complainant must satisfy the three-part evidentiary scheme created by the Supreme Court in McDonnell Douglas v. Green, 411 U.S. 792 (1973). Complainant may establish a prima facie case of disparate treatment on Title VII protected bases by showing that he: (1) belongs to a protected group; (2) was subjected to an adverse employment action; and (3) was treated differently in this regard than similarly situated individuals who were not members of the protected group. McCreary v. Dep't of Defense, EEOC Appeal No- (Apr. 14, 2008); Saenz v. Dep't of the Navy, EEOC Request No- (Jan. 9, 1998). Once Complainant has established a prima facie case, the burden shifts to the agency to articulate a legitimate, nondiscriminatory reason for its actions. The burden then shifts again to Complainant to prove that management's stated reason is not only pretext but is pretext for intentional discrimination. Tincher v. WalMart Stores, Inc., 118 F.3d 1125, 1129 (7th Cir. 1997). Pretext could be demonstrated by showing "such weaknesses, impossibilities, inconsistencies, incoherencies, or contradictions in the Agency proffered reasons for its action that a reasonable fact-finder could rationally find them unworthy of credence and then infer that the employer did not act for the asserted non-discriminatory reason. Morgan v. Hilti, Inc., 108, F.3d 1319, 1323, (10th Cir. 1997). Disability: Discrimination based on disability is prohibited by the Rehabilitation Act of 1973, as amended; the Americans with Disabilities Act (ADA) of 1990, as amended; and the ADA Amendments Act of 2008 (ADAAA). 29 C.F.R. § 1630. Additionally, federal agencies must make reasonable accommodation to the known physical or mental limitations of qualified employees with disabilities, unless the Agency can demonstrate that accommodation would prove to be an "undue hardship." 29 C.F.R. §-(b). An individual with a disability is one who: (1) had a physical or mental impairment that substantially limits one or more of the major life activities of such individual, (2) had a record of such an impairment, or (3) was regarded as having such an impairment. 42 U.S.C. § 12102(1); 29 C.F.R. § 1630.2(g). The definition of disability is intended to be construed in favor of broad coverage, to the maximum extent permitted by the law. 42 U.S.C. § 12102(4)(A). In order to establish a prima facie case of disability discrimination, Complainant must establish that: (1) Complainant was an individual with a disability within the meaning of the ADAAA, (2) Complainant was otherwise qualified to perform the essential functions of the job, with or without reasonable 3 accommodation, and (3) the Agency treated Complainant differently than similarly situated non-disabled employees or failed to provide Complainant with a needed accommodation. 29 C.F.R. § 1630.2(g)-(1); 1630.4; 1630.9. Complainant must also establish that Complainant requested reasonable accommodation from the Agency. Once Complainant establishes a prima facie case of disability discrimination, the same burden shifting analysis applies as discussed above. See, McDonnell Douglas v. Green, supra, at 802-03; Swanks v. Washington Metropolitan Area Transit Authority (WMTA), 179 F.3d 929 (D.C. Cir. 1999); Heyman v. Queens Village Committee for Mental Health for Jamaica Community Adolescent Program, 198 F.3d 68 (2d Cir. 1999). See also McCullogh v. United States Postal Service, EEOC Request No- (April 25, 1996). Agencies may be required to modify a workplace policy when necessitated by an individual's disability-related limitations, unless to do so would create an undue hardship for the employer. Reasonable accommodation only requires that the employer modify the policy for an employee who requires such action because of a disability; therefore, the employer may continue to apply the policy to all other employees. In some instances, an employer's refusal to modify a workplace policy could constitute failure to provide a reasonable accommodation. Equal Employment Opportunity Commission, Enforcement Guidance: Reasonable Accommodation and Undue Hardship Under the Americans with Disabilities Act, Response to Question 24, "Modified Workplace Policies." REVIEW It is understood that the scope of the review in an appeal from a Board decision is limited. We can set aside the Board’s decision only if it was “(1) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law; (2) obtained without procedures requires by law, rule, or regulation having been followed; or (3) unsupported by substantial evidence.” 5 U.S.C. Section 7703(c); see Briggs v. Merit System Protection Board, 331 F.3d 1307 (Fed. Cir. 2003). ANALYSIS On December 17, 2016, the Complainant suffered a workplace injury. The Complainant was diagnosed with (a) full thickness rotator cuff tear, (b) current tear of medial cartilage and/or meniscus of knee; and (c) fracture of toe of left foot. The injury has caused partial, temporary, disability as well as ongoing pain and suffering. 4 The Complainant suffered emotional trauma due to this treatment. It manifested in the form of depression, anxiety, poor response to stressors, moodiness, sleeplessness, irritability, the feeling of instability, fearfulness of losing employment, etc. Not only did he suffer from emotional stress, but he also had physical trauma. The injury affected his left knee requiring limited use; making it harder for him to walk, stand, bend, sitting for longer periods of time, etc. The Complainant is left-handed. The injury affected his left shoulder and arm. It was difficult for him to write, to shave his head, to take shower, to lift items, to turn the bus that he drove for a living, to use the bathroom, to wash his carpets, etc. The Complainant had to seek help when he went to the grocery store to pick up his grocery bags. He was even made to ride the handicap scooters in the grocery store. The Complainant is active with his church, New Hope Church of God. He works in the food pantry doing community outreach. It requires him to bend and pick up packages which the injuries prevent him from doing. The Complainant’s medical bills since December 17, 2016 through the present time have been greater than $10,000.00. He was in tremendous pain for more than 10 months and although, the pain level has reduced, it is still present, two plus years after the actual accident. When the accident first occurred, he was the sole breadwinner for his family. They relied upon his income. The question mark was whether he would have an income, which created its own stress. The Office of Civil Rights awarded the Complainant $2,000.00 in nonpecuniary compensatory damages relying on facts that are demonstrated to be untrue and caselaw that relies on only emotional damages, not physically and medically demonstrated damages. The analysis as provided by the Department of State reflects facts that have been misconstrued and/or mischaracterized as well as the use of arguments that minimizes the impact of both the Complainant’s physical injuries and the mental impact of the continued discriminatory and hostile work environment when determining the award of $2,000.00 as non-pecuniary compensatory damages I. Whether the Department of State erred when it argued that the Complainant failed to provide medical restrictions prior to October and November 2017. It must be understood that prior to June 2017, the Complainant had a different supervisor, Mr. Gerald Bright Scott, who received the medical restrictions beginning in January 2017. Yet, the Department of State argues that medical 5 restrictions weren’t provided until October and November 2017, using the information as provided by Mr. Michael Passmore, the current Supervisor, only. On January 12, 2017, Dr. Shaheer Yousaf, MD, issued a disability certificate that stated that the Complainant is unable to work or attend school from January 12, 2017 through February 6, 2017. It also stated that the Complainant was restricted from any physical duty until further notice, including, no prolonged standing, no prolonged walking, no stair climbing, no kneeling/squatting, no bending, no twisting, no pushing and no pulling. On February 24, 2017, Dr. Shaheer Yousaf, FACS, FAAOS, prepared a letter stating that the Complainant was being treated for chondromalacia and a bucket handle tear of the left knee (ICD-10 code M94.262 and S83-212A); and a complete rotator cuff tear of the left shoulder (ICD-10 code M75.122). The patient is only able to ambulate 200 feet without stopping to rest. The patient is able to drive. The condition is expected to last through December 31, 2017. On July 11, 2017, Dr. Shaheer Yousaf, MD, issued a disability certificate which stated that the Complainant was unable to work or attend school from July 6, 2017 to July 11, 2017. Also, the disability certificate stated that the Complainant may return to light duty on July 12, 2017. Furthermore, the Complainant was restricted to lifting up to 2 pounds. The Physician stated to advise parking, no long-distance walking, handicap parking, 20 – 25 feet distant and sedan driving only. 2. Whether the Department of State erred when it argued that there was no persuasive evidence in the record that Complaint has suffered any long-term or short-term physical or mental condition as a result of being denied his preferred parking arrangement, the consideration of his leave requests, or the issuance of attendancerelated discipline. The Department of State mischaracterizes the necessity of the preferred parking, even though it should have been provided as a medical accommodation. The Department of State argued that the “preferred parking arrangement” is a preference, however, it was a necessity. On December 17, 2016, the Complainant was injured. One of three issues cause by the accident was the fact that the Complainant suffered a tear of the medial cartilage and/or meniscus of the Complainant’s left knee. This is a soft tissue injury that can take considerable time 6 to heal. Beginning in January 2017, less than a month after the date of the injury, the Complainant’s physician provided medical restrictions which included, no prolonged walking, no stair climbing, no kneeling/squatting, no bending, no twisting, no pushing and no pulling. Later, the physician provided no longdistance walking, handicap parking, 20 – 25 feet distant and sedan driving only. The reason for the restriction was the simple fact that the injury would take time to heal and that activity, including walking distances, going up hills, lifting weighted items, etc., could continue to cause injury to the Complainant’s left knee and rotator cuff. The fact that the Department of State failed to provide the preferred parking arrangement or provide an alternative, the Complainant was subject to continued injury to his left knee and left rotator cuff. 3. Whether the Department of State abused its discretion when it argued that the Complainant only provided one sentence of potentially relevant information claiming that having to park at Navy Hill “aggravated the injury all the more” however, he does not offer any evidence, medical or otherwise, to explain the type or extent of the aggravation experienced or how it affected him. On December 17, 2016, the Complainant had an accident while on the job and the ambulance was called and took the Complainant from his place of employment to George Washington University Hospital. The Complainant was out of work for several weeks. The Supervisor provided the Worker’s Compensation paperwork to the Complainant. The Complainant provided medical notes, medical bills and other documentation to both the administrator for workers compensation administration as well as to the Department of State. In fact, the one totally true statement made by the Department of the State was the fact that all medical bills were indeed paid by either workers’ compensation or the insurance from the employment. Then the Department of State thoroughly investigated the medical claims caused by the work-related injury pursuant to Title 5 of the U.S.C. §8123. Physical examinations, which states: (a) An employee shall submit to examination by a medical officer of the United States, or by a physician designated or approved by the Secretary of Labor, after the injury and as frequently and at the times and places as may be reasonably required. The employee may have a physician designated and paid by him present to participate in the examination. If there is disagreement between the physician making the examination for the United States and the physician of the employee, the Secretary shall appoint a third physician who shall make an examination. 7 (b) An employee is entitled to be paid expenses incident to an examination required by the Secretary which in the opinion of the Secretary are necessary and reasonable, including transportation and loss of wages incurred in order to be examined. The expenses, when authorized or approved by the Secretary, are paid from the Employees’ Compensation Fund. (c) The Secretary shall fix the fees for examinations held under this section by physicians not employed by or under contract to the United States to furnish medical services to employees. The fees, when authorized or approved by the Secretary, are paid from the Employees’ Compensation Fund. (d) If an employee refuses to submit to or obstructs an examination, his right to compensation under this subchapter is suspended until the refusal or obstruction stops. Compensation is not payable while a refusal or obstruction continues, and the period of the refusal or obstruction is deducted from the period for which compensation is payable to the employee. It has been determined that there are two types of knee cartilage: articular cartilage and meniscus cartilage. Articular cartilage lines the end of the bones that meet to form a joint and is made up of collagen, proteoglycans and water. The primary function of the articular cartilage is to provide a smooth gliding surface for joint motion. Articular cartilage glides against other articular cartilage with approximately five times less friction than rubbing ice on ice. The meniscus cartilage in the knee includes a medial (inside) meniscus and a lateral (outside) meniscus, which are referred together as menisci. The menisci are wedge shaped and are thinner toward the center of the knee and thicker toward the outside of the knee joint. This shape is very important to its function. The primary function of the menisci is to improve load transmission. A relatively round femur (upper leg/thigh bone) sitting on a relatively flat tibia (shin bone) forms the knee joint. Without the menisci, the area of contact force between these two bones would increase the contact stress by 235 to 335 percent. The wedge-shaped menisci decrease this contact area significantly while also providing shock absorption, lubrication and joint stability. The knee injury is only one of three injuries that occurred on December 17, 2016. 8 DISCRIMINATION AND DAMAGES As in the case of Franks v. Bowman Transportation Co., 424 US 747 (1976), when discrimination is found, the agency must provide the Complainant with a remedy that constitutes full, make-whole relief to restore his/her as nearly as possible to the position he/she would have occupied absent the discrimination. See, e.g., Albemarle Paper Co. v. Moody, 422 U.S. 405, (1975); Adesanya v. Postal Service, EEOC Appeal No- July 21, 1994). Pursuant to section 102(a) of the Civil Rights Act of 1991, a complainant who establishes unlawful intentional discrimination under either Title VII or the Rehabilitation Act 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). To receive an award of compensatory damages, a complainant must demonstrate that he or she was 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- (July 22, 1994), req. for recons. den., EEOC Request No- (December 11, 1995); Enforcement Guidance: Compensatory and Punitive Damages Available Under Section 102 of the Civil Rights Act of 1991, EEOC Notice No. 915.002 (July 14, 1992) (EEOC Notice No. 915.002), at 11-12, 14. In the case at hand, the Complainant’s spouse and co-workers issued statements concerning the Complainant’s mental and emotional state. While the medical bills, medical notes, medical investigation provided the Complainant’s physical state which reflects the basis for the request for compensatory damages. Objective evidence of compensatory damages may include medical bills and statements from the complainant or others attesting to complainant's emotional suffering. Statements from others, including family members, friends, health care providers, and other counselors could address the outward manifestations of emotional distress, including sleeplessness, anxiety, stress and depression. See Lawrence v. United States Postal Service, EEOC Appeal No- (April 18, 1996), citing Carle v. Department of the Navy, EEOC Appeal No- (January 5, 1993). 9 When calculating non-pecuniary damages, the trier of fact does not have a precise formula for determining non-pecuniary losses, except that the award should reflect the nature and severity of the harm and the duration or expected duration of the harm. Loving v. Department of the Treasury, EEOC Appeal No- (August 29, 1997). Further, the award should be consistent with other awards in similar cases. Hodge/and v. Department of Agriculture, EEOC Appeal No- (June 14, 1999). A proper award of non-pecuniary damages should not be "monstrously excessive" standing alone, the product of passion or prejudice, and consistent with the amount awarded in similar cases. Ward-Jenkins, EEOC Appeal No- (March 4, 1999) (citing Cygnar v. City of Chicago, 865 F.2d 827, 848 (7th Cir. 1989). In the case of Turner v. Department of the Interior, EEOC Appeal No- (April 27, 1998), damages for both physical and emotion injury was considered, and the agency awarded $40,000 in non-pecuniary damages. In that case, the discriminatory harassment, particularly forcing the Complainant to carry a 45-pound back-pack, caused her to experience psychological trauma and physical injury with permanent effects. Here, in the case at hand, the discriminatory harassment, particularly forcing the Complainant to walk great distances and up/down hills, also, caused psychological trauma and physical injury. Whereas, in the case at hand, the agency has placed all emphasis on the emotional injury and has not truly considered the affect on both emotional and physical injuries to our Complainant. See Cygnar v. City of Chicago, 865 F.2d 827, 848 (7th Cir. 1989); US EEOC v. AIC Security Investigations, Ltd., 823 F.Supp. 573, 574(N.D. Ill. 1993); Wallis v. United States Postal Service, EEOC Appeal No- (November 13, 1995); see also Johnson v. Department of the Interior, EEOC Appeal No- (June 18, 1998) (awarding $37,500)in non-pecuniary damages for physical and emotional injury). Similarly, the award provided in our case which amounted to $2,000.00 was based only on the emotional injuries. Whereas, in the case of Deborah Anderson, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency., 01A14976, at *1 (E.E.O.C. Apr. 2, 2003), the award, also, failed to reflect the impact of what occurs when both the emotional and physical injuries are not properly considered. In that case, the Commission found that the evidence submitted by complainant did not support an award of compensatory damages greater than $40,000, which should have been the amount that was adequate to compensate complainant for the harm shown based on the discriminatory conduct. It was argued that the amount of the award met the goals of not being monstrously 10 excessive standing alone, not being the product of passion or prejudice, and being consistent with the amount awarded in similar cases. The Commission awarded a complainant $35,000.00 for disability discrimination when complainant and his wife testified that complainant suffered severe stress, sleeplessness, and misery as a result of the agency failing to reasonably accommodate his disability. Feris v. Environmental Protection Agency, EEOC Appeal No- (September 18, 1998). The Commission awarded a complainant $25,000.00 in non-pecuniary damages when he testified as to prolonged feelings of frustration, anger, loss of self-esteem, and a sense of betrayal due to disability discrimination. Hutton v. United States Postal Service, EEOC Appeal No- (June 6, 2000). The Commission awarded a complainant $30,000.00 when he was hospitalized once, suffered severe emotional distress for months and less severe emotional distress for the following three years after the disability discrimination. Anthony Williams v. Department of Veterans Affairs, EEOC Appeal No. 01A13275 (March 19, 2003). The Commission awarded $20,000.00 to a complainant, where the agency's discriminatory conduct exacerbated his pre-existing depression. Smith v. Department of Defense, EEOC Appeal No- (May 8, 1996). In our case, the Complainant does not have a pre-existing illness or injury. The Commission awarded $20,000.00 to a complainant where he, family, and friends testified to depression and strained relationships as a result of reprisal discrimination. Velarde v. United States Postal Service, EEOC Appeal No. 01A22780 (September 30, 2003). In cases where the Commission awarded nonpecuniary damages of $40,000 and above, the evidence of record tended to show that the emotional or psychological injuries which resulted from the agency’s actions either had permanent or substantially long-term effects or were so catastrophic that no inquiry into long-term effects was necessary. See Mack v. Department of Veterans Affairs, EEOC Appeal No-(June 23, 2000) ($186,000 awarded where individual was left homeless for two years as a result of discriminatory termination); Santiago v. Department of the Army, EEOC Appeal No- (October 14, 1998) ($125,000 awarded where agency’s discriminatory conduct caused individual to develop severe digestive problems as well as psychological 11 injury); Kelly v. Department of Veterans Affairs, EEOC Appeal No- (July 29, 1998) ($100,000 awarded where subjection of aggrieved individual to hostile work environment caused her to develop severe psychological injury, from which she was still suffering at the hearing); Finlay v. United States Postal Service, EEOC Appeal No- (April 29, 1997) ($100,000 awarded where, as a result of ongoing sexual harassment, individual sustained severe psychological injury that affected her for four years and was likely to affect her for the foreseeable future);Wallis v. United States Postal Service, EEOC Appeal No- (November 13, 1995) ($50,000 awarded where complainant’s preexisting depression aggravated by agency’s discriminatory conduct would require treatment for five years). In the case at hand, the Complainant has been working in a hostile work environment for more than 24 months, certainly, both the physical and emotional toll has been greater than $2,000.00. Whereas, in Cook v. United States Postal Service, EEOC Appeal No- (July 17, 1998), the Complainant was awarded $130,000, when the facts demonstrated that 14-months of hostile work environment actually caused her to develop atypical paranoid disorder, leaving her unable to work. LIABILITY Under the Federal Employee Compensation Act (FECA), the United States undertakes to pay its employees compensation for disability or death that results from injury sustained by the employees in the performance of their duties. 5 U.S.C. § 8102. FECA provides for medical services, vocational rehabilitation, payment for loss of income from disability, and awards to beneficiaries in the case of death. A work-related injury as covered by FECA is defined in § 8101(5) to include "a disease proximately caused by the employment." The remedies provided by the United States under FECA are exclusive of all other remedies with respect to an injury or death. As § 8116(c) provides: The liability of the United States . . . under this subchapter or any extension thereof with respect to the injury or death of an employee is exclusive and instead of all other liability of the United States . . . to the employee, his legal representative, spouse, dependents, next of kin, and any other person otherwise entitled to recover damages from the United States . . . because of the injury or death in a direct judicial 12 proceeding, in a civil action, . . . or under a Federal tort liability statute. Metz v. U.S., 723 F. Supp. 1133, 1135 (D. Md. 1989) Congress’s purpose in enacting 5 U.S.C. Section 8116(c) was explained in Lockheed Aircraft Corp. v. United States, 460 U.S. 190 (1983) as follows: FECA was designed to protect the Government from suits under statutes, such as the Federal Tort Claims Act, that had been enacted to waive the Government’s sovereign immunity. In enacting this provision, Congress adopted the principal compromise – the “quid pro quo” – commonly found in workers’ compensation legislation: employees are guaranteed the right to receive immediate, fixed benefits, regardless of fault and without need for litigation, but in return the lose the right to sue the Government. FECA, 5 U.S.C. Section 8116, establishes a worker's compensation program for federal employees, and . . . it provides the exclusive remedy for a federal employee seeking compensation from the United States for work-related injuries." It also states, “that Plaintiff in this case brings claims challenging his FECA benefits and the FECA process, which are within the exclusive province of the Department of Labor and are not subject to judicial review by this Court.” Lee v. Potter, 1:05CV933, at *9 (M.D.N.C. Mar. 27, 2008) The Complainant is covered by FECA. The FECA program covers all civilians employed by the federal government, including employees in the executive, legislative, and judicial branches of the government. Both full-time and part-time workers are covered, as are most volunteers and all persons serving on federal juries. The conditions affecting the Complainant are covered by FECA. Under FECA, workers’ compensation benefits are paid to any covered employee for any disability or death caused by any injury or illness sustained during the employee’s work for the federal government. The Complainant has been adversely impacted by the failure of continued compensation when sent home without leave. Continuation of pay in the case of a traumatic injury, an employee is eligible for continuation of pay. Continuation of 13 pay is paid by the employing agency and is equal to 100% of the employee’s rate of pay at the time of the traumatic injury Partial Disability: Due to his injuries, the Complainant is considered temporary and partially disabled. If an employee is unable to work full-time at his or her previous job, but is able to work either part-time or at a job in a lower pay category, then he or she is considered partially disabled and eligible for the following compensation benefits: • if the employee is single, a monthly benefit equals to two-thirds of the difference between the employee’s pre-disability and post-disability monthly wage or • if the employee has at least one dependent, a monthly benefit equals to 75% of the difference between the employee’s pre-disability and post-disability monthly wage. The compensation benefits paid for partial disability are capped at 75% of the maximum basic pay at rate GS-15 (GS-15, step 10), are not subject to federal taxation, and are subject to an annual cost-of-living adjustment. Benefits are paid for the duration of the disability or the life of the beneficiary. Pursuant to FECA, all of the Complainant’s medical bills/invoices were indeed paid: 5 U.S. Code § 8103. Medical services and initial medical and other benefits (a) The United States shall furnish to an employee who is injured while in the performance of duty, the services, appliances, and supplies prescribed or recommended by a qualified physician, which the Secretary of Labor considers likely to cure, give relief, reduce the degree or the period of disability, or aid in lessening the amount of the monthly compensation. These services, appliances, and supplies shall be furnished — (1) whether or not disability has arisen; (2) notwithstanding that the employee has accepted or is entitled to receive benefits under subchapter III of chapter 83 of this title or another retirement system for employees of the Government; and (3) by or on the order of United States medical officers and hospitals, or, at the employee’s option, by or on the order of physicians and hospitals designated or approved by the Secretary. 14 The employee may initially select a physician to provide medical services, appliances, and supplies, in accordance with such regulations and instructions as the Secretary considers necessary, and may be furnished necessary and reasonable transportation and expenses incident to the securing of such services, appliances, and supplies. These expenses, when authorized or approved by the Secretary, shall be paid from the Employees’ Compensation Fund. 5 U.S. Code § 8106 defines Partial disability as follows: (a) If the disability is partial, the United States shall pay the employee during the disability monthly monetary compensation equal to 66⅔ percent of the difference between his monthly pay and his monthly wage-earning capacity after the beginning of the partial disability, which is known as his basic compensation for partial disability. (b) The Secretary of Labor may require a partially disabled employee to report his earnings from employment or self-employment, by affidavit or otherwise, in the manner and at the times the Secretary specifies. The employee shall include in the affidavit or report the value of housing, board, lodging, and other advantages which are part of his earnings in employment or self-employment and which can be estimated in money. An employee who— (1) fails to make an affidavit or report when required; or (2) knowingly omits or understates any part of his earnings; forfeits his right to compensation with respect to any period for which the affidavit or report was required. Compensation forfeited under this subsection, if already paid, shall be recovered by a deduction from the compensation payable to the employee or otherwise recovered under section 8129 of this title, unless recovery is waived under that section. (c) A partially disabled employee who— (1) refuses to seek suitable work; or (2) refuses or neglects to work after suitable work is offered to, procured by, or secured for him; is not entitled to compensation. The Complainant does not argue a total loss of any limbs, however, he does argue that Section 8107 provides for a compensation schedule based on weeks which could be used to assist at arriving at an award for a temporary and partial disability, which may correlate to the weeks provided below: 15 5 U.S. Code § 8107 provides for a compensation schedule based on total loss, which is: (a) If there is permanent disability involving the loss, or loss of use, of a member or function of the body or involving disfigurement, the employee is entitled to basic compensation for the disability, as provided by the schedule in subsection (c) of this section, at the rate of 66⅔ percent of his monthly pay. The basic compensation is— (1) payable regardless of whether the cause of the disability originates in a part of the body other than that member; (2) payable regardless of whether the disability also involves another impairment of the body; and (3) in addition to compensation for temporary total or temporary partial disability. (b)With respect to any period after payments under subsection (a) of this section have ended, an employee is entitled to compensation as provided by— (1) section 8105 of this title if the disability is total; or (2) section 8106 of this title if the disability is partial. (c) The compensation schedule is as follows: (1) Arm lost, 312 weeks’ compensation. (2) Leg lost, 288 weeks’ compensation. (3) Hand lost, 244 weeks’ compensation. (4) Foot lost, 205 weeks’ compensation. (5) Eye lost, 160 weeks’ compensation. (6) Thumb lost, 75 weeks’ compensation. (7) First finger lost, 46 weeks’ compensation. (8) Great toe lost, 38 weeks’ compensation. (9) Second finger lost, 30 weeks’ compensation. (10) Third finger lost, 25 weeks’ compensation. (11) Toe other than great toe lost, 16 weeks’ compensation. (12) Fourth finger lost, 15 weeks’ compensation. (13) Loss of hearing— (A) complete loss of hearing of one ear, 52 weeks’ compensation; or (B) complete loss of hearing of both ears, 200 weeks’ compensation. (14) Compensation for loss of binocular vision or for loss of 80 percent or more of the vision of an eye is the same as for loss of the eye. 16 (15) Compensation for loss of more than one phalanx of a digit is the same as for loss of the entire digit. Compensation for loss of the first phalanx is one-half of the compensation for loss of the entire digit. (16) If, in the case of an arm or a leg, the member is amputated above the wrist or ankle, compensation is the same as for loss of the arm or leg, respectively. (17) Compensation for loss of use of two or more digits, or one or more phalanges of each of two or more digits, of a hand or foot, is proportioned to the loss of use of the hand or foot occasioned thereby. (18) Compensation for permanent total loss of use of a member is the same as for loss of the member. (19) Compensation for permanent partial loss of use of a member may be for proportionate loss of use of the member. The degree of loss of vision or hearing under this schedule is determined without regard to correction. (20) In case of loss of use of more than one member or parts of more than one member as enumerated by this schedule, the compensation is for loss of use of each member or part thereof, and the awards run consecutively. However, when the injury affects only two or more digits of the same hand or foot, paragraph (17) of this subsection applies, and when partial bilateral loss of hearing is involved, compensation is computed on the loss as affecting both ears. (21) For serious disfigurement of the face, head, or neck of a character likely to handicap an individual in securing or maintaining employment, proper and equitable compensation not to exceed $3,500 shall be awarded in addition to any other compensation payable under this schedule. (22) For permanent loss or loss of use of any other important external or internal organ of the body as determined by the Secretary, proper and equitable compensation not to exceed 312 weeks’ compensation for each organ so determined shall be paid in addition to any other compensation payable under this schedule. The Complainant relies upon the Civil Rights Act of 1964, the Fair Labor Standards Act as well as the Rehabilitation Act, which is now apart of FECA, when arguing discrimination in his workplace: 5 U.S.C. §7702. Actions involving discrimination (a)(1) Notwithstanding any other provision of law, and except as provided in paragraph (2) of this subsection, in the case of any employee or applicant for employment who— 17 (A) has been affected by an action which the employee or applicant may appeal to the Merit Systems Protection Board, and (B) alleges that a basis for the action was discrimination prohibited by— (i) section 717 of the Civil Rights Act of 1964 (42 U.S.C. 2000e–16), (ii) section 6(d) of the Fair Labor Standards Act of 1938 (29 U.S.C. 206(d)), (iii) section 501 of the Rehabilitation Act of 1973 (29 U.S.C. 791), (iv) sections 12 and 15 of the Age Discrimination in Employment Act of 1967 (29 U.S.C. 631, 633a), or (v) any rule, regulation, or policy directive prescribed under any provision of law described in clauses (i) through (iv) of this subparagraph, the Board shall, within 120 days of the filing of the appeal, decide both the issue of discrimination and the appealable action in accordance with the Board's appellate procedures under this section. The Complainant provided the required notice of injury. Title 5, USC §8119. Notice of injury or death, states the following: An employee injured in the performance of his duty, or someone on his behalf, shall give notice thereof. Notice of a death believed to be related to the employment shall be given by an eligible beneficiary specified in section 8133 of this title, or someone on his behalf. A notice of injury or death shall— (a) be given within 30 days after the injury or death; (b) be given to the immediate superior of the employee by personal delivery or by depositing it in the mail properly stamped and addressed; (c) be in writing; (d) state the name and address of the employee; (e) state the year, month, day, and hour when and the particular locality where the injury or death occurred; (f) state the cause and nature of the injury, or, in the case of death, the employment factors believed to be the cause; and (g) be signed by and contain the address of the individual giving the notice. The Complainant has made the proper claim pursuant to Title 5, USC §8121. Claim, which states as follows: Compensation under this subchapter may be allowed only if an individual or someone on his behalf makes claim therefor. The claim shall— 18 (1) be made in writing within the time specified by section 8122 of this title ; (2) be delivered to the office of the Secretary of Labor or to an individual whom the Secretary may designate by regulation, or deposited in the mail properly stamped and addressed to the Secretary or his designee; (3) be on a form approved by the Secretary; (4) contain all information required by the Secretary; (5) be sworn to by the individual entitled to compensation or someone on his behalf; and (6) except in case of death, be accompanied by a certificate of the physician of the employee stating the nature of the injury and the nature and probable extent of the disability. Complainant’s claim was made timely pursuant to 5 U. S. C. §8122, time for making claim, which states: (a) An original claim for compensation for disability or death must be filed within 3 years after the injury or death. Compensation for disability or death, including medical care in disability cases, may not be allowed if claim is not filed within that time unless— (1) the immediate superior had actual knowledge of the injury or death within 30 days. The knowledge must be such to put the immediate superior reasonably on notice of an on-the-job injury or death; or (2) written notice of injury or death as specified in section 8119 of this title was given within 30 days. (b) In a case of latent disability, the time for filing claim does not begin to run until the employee has a compensable disability and is aware, or by the exercise of reasonable diligence should have been aware, of the causal relationship of the compensable disability to his employment. In such a case, the time for giving notice of injury begins to run when the employee is aware, or by the exercise of reasonable diligence should have been aware, that his condition is causally related to his employment, whether or not there is a compensable disability. (c) The timely filing of a disability claim because of injury will satisfy the time requirements for a death claim based on the same injury. (d) The time limitations in subsections (a) and (b) of this section do not— (1) begin to run against a minor until he reaches 21 years of age or has had a legal representative appointed; or (2) run against an incompetent individual while he is incompetent and has no duly appointed legal representative; or 19 (3) run against any individual whose failure to comply is excused by the Secretary on the ground that such notice could not be given because of exceptional circumstances. Complainant’s has the right to retain his civil service retention rights pursuant to Title 5, U.S.C. Section 8151, which states: (b) Under regulations issued by the Office of Personnel Management— (1) the department or agency which was the last employer shall immediately and unconditionally accord the employee, if the injury or disability has been overcome within one year after the date of commencement of compensation or from the time compensable disability recurs if the recurrence begins after the injured employee resumes regular full-time employment with the United States, the right to resume his former or an equivalent position, as well as all other attendant rights which the employee would have had, or acquired, in his former position had he not been injured or disabled, including the rights to tenure, promotion, and safeguards in reductions-in-force procedures, and (2) the department or agency which was the last employer shall, if the injury or disability is overcome within a period of more than one year after the date of commencement of compensation, make all reasonable efforts to place, and accord priority to placing, the employee in his former or equivalent position within such department or agency, or within any other department or agency. Gallo argues that § 8151(a) provides restoration rights to federal employees, such as herself, who resume employment in their former positions, or in positions equivalent thereto, after recovering from a compensable injury, regardless of whether the employee remains otherwise employed by the federal government while receiving OWCP benefits under FECA. Gallo cites FECA's legislative history as evidence that Congress intended that “Federal employees ... who are injured on the job and receiving disability compensation ... will incur no loss of benefits which they would have received absent the injury or disease.” Appellant's Br. 17 (quoting S.Rep. No. 93–1081, reprinted in 1974 U.S.C.C.A.N. 5341, 5344) (emphasis added). According to Gallo, the Board was required to interpret FECA liberally to “to effectuate its humanitarian purposes, with exemptions and exceptions narrowly 20 construed and doubts resolved in favor of the employee.” Id. (quoting Brown v. Jefferson,451 A.2d 74, 77 (D.C.1982)). Gallo v. Dep't of Transp., 689 F.3d 1294, 1297-98 (Fed. Cir. 2012) RELIEF SOUGHT The Complainant requests that the order awarding $2,000.00 made by the agency be set aside in favor of a larger award. It is the argument of the Complainant that the agency’s decision was limited to the emotional impact of the discrimination and not, both, the emotional and physical impact of the actual injuries as well as the purposeful discrimination. Furthermore, the substantial evidence provided to the agency by the Complainant by way of the actual medical investigation, the physicians notes as well as the physicians restrictions, the affidavits and the personnel file reflects the fact that the agency has mischaracterized or omitted factors that would have determined a larger nonpecuniary award, i.e., notice of restrictions was within a month of the actual injury and not 10 months later as the agency states and apparently relies upon. The agency is ordered to take the following remedial actions: 1. Within sixty (60) days from the date this decision becomes final, the agency shall pay Complainant $10,000.00 for past pecuniary damages. 2. Within sixty (60) days from the date this decision becomes final, the agency shall pay Complainant $75,000 in non-pecuniary compensatory damages. 3. 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 calculation of and other benefits due complainant, including evidence that the corrective action has been implemented. It is our belief that the proposed award reflects the nature and severity of the harm. Prepared by: _________________________ Rodney Henderson, Pro Se 10816 Boysenberry Court Waldorf, MD- 22