Billi D.,1 Complainant,v.Jeh Johnson, Secretary, Department of Homeland Security (Transportation Security Administration), Agency.

Equal Employment Opportunity Commission

Sep 8, 2016

0120143081 (E.E.O.C. Sep. 8, 2016)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013

Billi D.,1
Complainant,

v.

Jeh Johnson,
Secretary,
Department of Homeland Security
(Transportation Security Administration),
Agency.

Appeal No. 0120143081

Agency No. HS-TSA-00220-2013

DECISION

On August 29, 2014, Complainant filed an appeal from the Agency’s August 18, 2014, final
decision concerning her request for compensatory damages and attorney’s fees in connection
with its earlier decision finding in her favor on the merits of Complaint No. HS-TSA-01129-
2011. The Agency concluded that it had engaged in unlawful employment discrimination in
violation of Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29
U.S.C. § 791 et seq. The Commission deems the appeal timely and accepts it for de novo
review. For the following reasons, the Commission AFFIRMS the Agency’s final decision.

BACKGROUND

Complainant was involved in an on-the-job car accident that caused her to suffer a tear in her
shoulder. Between 2009 and 2012, she requested and was granted family medical leave for
treatment of rotator cuff tendonitis. In April 2012, following an audit of her leave usage,
Complainant was referred to a Federal Occupational Health (FOH) Physician, who determined
that Complainant no longer met the physical and medical requirements of the TSO position.
Acting on the FOH Physician’s decision, the Agency terminated her employment on October
22, 2012.

1 This case has been randomly assigned a pseudonym which will replace Complainant’s name
when the decision is published to non-parties and the Commission’s website.
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In response to her removal, Complainant filed EEO Complaint No. HS-TSA-01129-201, in
which she alleged that the Agency discriminated against her on the bases of age and disability
in removing her from Federal service. The Agency investigated the complaint and thereafter
issued a final decision on March 6, 2014, in which it found that the Agency had discriminated
against her on the basis of disability, but not age. On April 4, 2014, Complainant submitted a
petition for attorney’s fees, and on May 2, 2014, she submitted a request for compensatory
damages.

In support of her claim for compensatory damages, Complainant presented the following
documents: an accounting statement from Clover Park Technical College in the amount of
$3,878.72; an internal revenue form 1098-T for tuition paid during 2013 in the amount of
$2730.26; an invoice for the master esthetic laser and chemical peel course in the amount of
$5,900.00; and the fee for the cosmetology licensing examination in the amount of $180.00. IR
93-96. Complainant also presented information from her healthcare provider, including an
authorization to release healthcare information from Federal Way Naturopathy in which are
documented purchases in the amount of $2,542.89, of which $1,036.75 was charged to her and
the remainder offset by insurance payments and store credits. IR 100-05. Complainant
presented other medical documentation as well, including progress notes from her health care
provider dated between January and June 2013, as well as clinical laboratory reports and
invoices. IR 106-26.

On August 12, 2014, the Agency issued its final decision on Complainant’s fee petition and
request for damages. It found that Complainant failed to demonstrate a nexus between any of
her asserted medical and educational expenses and the discriminatory decision to remove her
from her position. Final Agency Decision (FAD), pp. 4-6. Although the Agency found that
Complainant did not request non-pecuniary compensatory damages, it nevertheless determined
that a nonpecuniary damages award in the amount of $1,500.00 was appropriate. FAD, pp. 6-
7. The Agency rejected her claim for $1,500 in attorney’s fees on the ground that the legal
work done for Complainant consisted entirely of preparation for and participation in a
mediation that had occurred nearly one month before Complainant filed her formal complaint.
FAD, p. 7.

On appeal, Complainant contends that she is entitled to compensatory damages in the amount
of $10,706.39, broken down as follows: master esthetic laser and chemical peel course -
$5,900.00; tuition for 2013 - $2,730.26; tuition for 2014 - $1,986.13; and cosmology
examination fee - $180.00. She also makes a vague reference to “being wronged again over
the compensatory damages award after being wronged on the illegal termination.” She does
not, however, specify any additional amount in compensatory damages beyond what the
Agency awarded her in its final decision. Further, she maintains that she is entitled to
attorney’s fees in the amount of $1,500.

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ANALYSIS AND FINDINGS

Compensatory damages are awarded to compensate a complaining party for losses or suffering
inflicted due to discriminatory acts or conduct. Enforcement Guidance: Compensatory and
Punitive Damages Available Under Section 102 of the Civil Rights Act of 1991 EEOC Notice
No. 915.002, at 5 (July 14, 1992) (hereinafter Enforcement Guidance). Compensatory
damages include damages for past pecuniary loss (out-of-pocket expenses), future pecuniary
loss (likely future out-of-pocket expenses), and nonpecuniary loss (emotional harm). See id.
Damages are available for pain, suffering, inconvenience, mental anguish, loss of enjoyment of
life, injury to professional standing, character, or reputation, and other intangible injuries that
result from discriminatory conduct. Id. at 7. Awards for emotional harm are warranted only if
Complainant establishes a sufficient causal connection between the Agency's illegal actions and
his injury. Id. Such awards are limited to the amount necessary to compensate Complainant for
actual harm and should take into account the severity of the harm and the length of time
Complainant has suffered from the harm. Coopwood v. Dept. of Transportation, EEOC
Appeal No. 0120083127 (May 2, 2012) (citing Carpenter v. Dept. of Agriculture, EEOC
Appeal No. 01945672 (July 17, 1995)).

Complainant did not present documents or sworn statements from her health care provider or
any other witnesses that establish the necessary causal connection between her medical and
educational expenses and the Agency’s act of terminating her from her position. Complainant
likewise does not appear to be contesting the Agency’s decision to award her $1,500 in non-
pecuniary damages despite the fact that she did not ask for such an award. We find that this
amount is reasonable and consistent with our precedent. See Complainant v. Dept. of the
Navy, EEOC Appeal No. 0120122475 (Aug. 26, 2014) ($1,500 non-pecuniary damages award
appropriately takes into account the complainant’s statements of pain and suffering as a result
of not being granted a financial award in the absence of other corroborating evidence);
Complainant v. Smithsonian Institution, EEOC Appeal No. 0720130031 (Jul. 18, 2014)
($1,500 award in non-pecuniary damages appropriate where Agency makes no arguments on
appeal contesting award by administrative judge); Goblirsch-Erickson v. U.S. Postal Service,
EEOC Appeal No. 0129113463 (Aug. 1, 2013) ($1,500 award in non-pecuniary compensatory
damages appropriate where the complainant did not present any evidence of any emotional or
physical harm suffered as a result of discriminatory non-selection); Struppler v. U.S. Postal
Service, EEOC Appeal No. 0120111119 (Jun. 28, 2013) ($1,500 non-pecuniary damages
award appropriate where other factors found to have contributed to harm suffered by
complainant).

Attorney’s fees shall be paid for services performed by an attorney after the filing of a written
complaint, except that fees are allowable for a reasonable period of time prior to the
notification of representation for any services performed in reaching a determination to
represent the Complainant. 29 C.F.R § 614.501(e)(1)(iv). As with compensatory damages,
the burden to prove entitlement to attorney’s fees rests with Complainant. Koren v. U.S.
Postal Service, EEOC Request No. 05A20843 (Feb. 18, 2003). To support her claim for
attorney’s fees, Complainant must submit a verified statement of fees and costs accompanied
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by an affidavit executed by the attorney of record. EEO Management Directive 110, Chapt.
11 §VI(G)(1) (August 5, 2015). Here, Complainant is claiming fees for services performed not
in connection with reaching a decision to represent her in a formal proceeding, but rather for
the mediation at the informal stage in an effort to seek a resolution. Moreover, the mediation
took place more than a month before Complainant initiated her formal complaint. Complainant
also failed to submit the required verified statement and affidavit from her attorney.
Consequently, we agree with the Agency that Complainant has not met her burden of
establishing her entitlement to attorney’s fees.

CONCLUSION

Based on a thorough review of the record and the contentions on appeal, we AFFIRM the
Agency’s final decision.

STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0416)

The Commission may, in its discretion, reconsider the decision in this case if the Complainant
or the Agency submits a written request containing arguments or evidence which tend to
establish that:
1. The appellate decision involved a clearly erroneous interpretation of material
fact or law; or
2. The appellate decision will have a substantial impact on the policies, practices,
or operations of the Agency.
Requests to reconsider, with supporting statement or brief, must be filed with the Office of
Federal Operations (OFO) within thirty (30) calendar days of receipt of this decision or within
twenty (20) calendar days of receipt of another party’s timely request for reconsideration. See
29 C.F.R. § 1614.405; Equal Employment Opportunity Management Directive for 29 C.F.R.
Part 1614 (EEO MD-110), at Chap. 9 § VII.B (Aug. 5, 2015). All requests and arguments
must be submitted to the Director, Office of Federal Operations, Equal Employment
Opportunity Commission. The requests may be submitted via regular mail to P.O. Box 77960,
Washington, DC 20013, or by certified mail to 131 M Street, NE, Washington, DC 20507. 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
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Commission will consider requests for reconsideration filed after the deadline only in very
limited circumstances. See 29 C.F.R. § 1614.604(c).

COMPLAINANT’S RIGHT TO FILE A CIVIL ACTION (S0610)

You have the right to file a civil action in an appropriate United States District Court within
ninety (90) calendar days from the date that you receive this decision. If you file a civil
action, you must name as the defendant in the complaint the person who is the official Agency
head or department head, identifying that person by his or her full name and official title.
Failure to do so may result in the dismissal of your case in court. “Agency” or “department”
means the national organization, and not the local office, facility or department in which you
work. If you file a request to reconsider and also file a civil action, filing a civil action will
terminate the administrative processing of your complaint.

RIGHT TO REQUEST COUNSEL (Z0815)

If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may
request permission from the court to proceed with the civil action without paying these fees or
costs. Similarly, if you cannot afford an attorney to represent you in the civil action, you may
request the court to appoint an attorney for you. You must submit the requests for waiver of
court costs or appointment of an attorney directly to the court, not the Commission. The court
has the sole discretion to grant or deny these types of requests. Such requests do not alter the
time limits for filing a civil action (please read the paragraph titled Complainant’s Right to File
a Civil Action for the specific time limits).

FOR THE COMMISSION:

______________________________ Carlton M. Hadden’s signature
Carlton M. Hadden, Director
Office of Federal Operations

September 8, 2016
Date