Erich A.,1 Complainant,v.Jim Bridenstine, Administrator, National Aeronautics and Space Administration, Agency.

Equal Employment Opportunity Commission

Sep 21, 2018

0120161456 (E.E.O.C. Sep. 21, 2018)

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

Erich A.,1
Complainant,

v.

Jim Bridenstine,
Administrator,
National Aeronautics and Space Administration,
Agency.

Appeal No. 0120161456

Hearing No. 570-2011-00972X

Agency No. NCN-11-HQ-019

DECISION

Complainant filed an appeal with the Equal Employment Opportunity Commission (EEOC or
Commission), pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s February 11, 2016, final
decision on damages concerning his equal employment opportunity (EEO) complaint alleging
employment discrimination in violation of 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 MODIFIES the Agency’s final decision.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as an Equal Opportunity
Assistant, GS-0361-05, in the Agency’s Equal Opportunity and Diversity Management Division
(EODM), Office of Headquarters Operations, in Washington, D.C. During the relevant time,
Complainant’s first level supervisor was the Director, EODM (S1).

On April 4, 2011, Complainant filed an EEO complaint alleging that the Agency discriminated
against him. The Agency defined Complainant’s complaint as alleging:

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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1. Complainant was subjected to discrimination on the bases of disability (Attention
Deficit Disorder (ADD), memory loss, and depression) when on December 13,
2010, his request for reasonable accommodation was verbally denied.

2. Complainant was subjected to discrimination on the bases of disability (ADD,
memory loss, and depression), and in reprisal for EEO activity when on January
13, 2011, he was terminated from Federal Service, effective January 14, 2011,
prior to the end of his probationary period.

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 Equal Employment
Opportunity Commission Administrative Judge (AJ). Complainant requested a hearing but the
AJ denied the hearing request on the grounds that he failed to comply with the AJ’s Orders and
failed to prosecute his complaint. The AJ remanded the complaint to the Agency, and the
Agency issued a final decision on November 14, 2014 pursuant to 29 C.F.R. § 1614.110(b).

The Agency’s decision concluded that Complainant established that the Agency failed to
reasonably accommodate his disability. The Agency stated that it was “without question that
Complainant’s disability and subsequent need for accommodation were related to the noted
performance issues, and this should have been addressed by [S1] when Complainant requested a
reasonable accommodation, instead of moving forward with termination without engaging in the
interactive process.” The Agency found Complainant did not establish that he was terminated in
retaliation for his request for reasonable accommodation. As relief for the discrimination, the
Agency ordered: posting of a notice of the violation; Complainant’s entitlement to prove
compensatory damages; Complainant’s entitlement to full reinstatement of his position with a
reasonable accommodation; and no award of reasonable attorney’s fees and costs since
Complainant was not represented by an attorney during the administrative processing of his
complaint. Complainant was afforded 30 days from his receipt of the Agency decision to submit
his evidence for damages.

In a submission dated December 12, 2014, Complainant submitted his claim for compensatory
damages. Complainant requested lost wages from the effective date of his termination with the
Agency on January 14, 2011, through March 26, 2011 (the date he began employment with
another federal Agency). Complainant stated he was unemployed for five consecutive bi-weekly
pay periods and noted his salary was $1,310.58 per bi-weekly pay period. Complainant noted he
lost the Agency’s matching contributions to his Thrift Savings Plan (TSP) and the Agency’s
contribution to his Federal Employees Retirement (FERS). Complainant claimed he was entitled
to interest on lost wages.

Complainant also claimed he lost sick and annual leave at the rate of 4 hours of sick leave and 4
hours of annual leave per pay period for the time he was unemployed. Complainant noted this
totaled 20 hours of sick leave and 20 hours of annual leave. Complainant stated he was
amenable to either restoration of 20 hours of sick leave and 20 hours of annual leave or a cash
payment for the leave.
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Complainant stated that while unemployed he had difficulty keeping up with his bills because of
the loss of income. He requested a letter stating he was separated in January 2011, and that
discrimination occurred, to use to address his creditors.

On January 23, 2015, the Agency requested a third-party investigate and make a determination
on Complainant’s compensatory damages claim.

After retaining counsel, Complainant amended his compensatory damages claim, to include
claims for physical and emotional stress. Complainant submitted his own affidavit and affidavits
from his mother and a friend in support of his request for the statutory maximum of non-
pecuniary, compensatory damages. Complainant stated that as a result of the Agency’s failure to
engage in the interactive process he felt severe emotional distress and paralyzing anxiety and
experienced fatigue, back pain, and insomnia. He stated the Agency’s actions severely damaged
his self-esteem and confidence. He notes he previously suffered ADD, depression, and bipolar
disorder and explains the Agency’s actions exacerbated his conditions. Complainant’s mother
noted that shortly after Complainant’s request for reasonable accommodation, he became
withdrawn and showed signs of depression. She stated that he experienced several crying
episodes, was devastated about the demise of his promising future, and his hygiene declined.
Complainant’s friend stated that Complainant’s anxiety and stress levels escalated to the point he
was unable to function or complete daily tasks and she stated she ultimately moved into his
apartment to help take care of him. She stated that after he found out about his termination, he
became extremely distraught and emotionally destroyed and would isolate himself for days. She
stated that to this day Complainant remains scarred by his experiences with the Agency and
becomes anxious and distressed even discussing the circumstances.

Complainant also amended his request for pecuniary damages. Complainant requested
restoration of 24 hours of sick leave and 24 hours of annual leave he stated was taken during the
relevant period. Additionally, Complainant requested reimbursement for a $2,400.00 loan he
had taken from his mother during the relevant time plus interest. Finally, Complainant requested
$2,500.00 in attorney’s fees.

On February 11, 2016, the Agency issued a final decision on damages. The Agency determined
it was liable for the lost salary and the compounded interest on the lost salary. The Agency
noted that Complainant’s loss of salary also meant he forfeited the Agency’s contributions to his
TSP and FERS. The Agency found Complainant was entitled to restoration of sick and annual
leave used as a result of the discrimination and leave lost following his termination.

The Agency determined that since Complainant was still a federal employee, his leave should be
restored as opposed to a cash payment for leave. The Agency found it reasonable for
Complainant to require three days of sick leave and three days of annual leave to recover from
stresses related to a failure to accommodate leading to the loss of a job. The Agency stated it
would transfer this leave to his new employer.

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Next, the Agency addressed Complainant’s claim for reimbursement for the $2,400.00 loan he
secured from his mother during his period of unemployment. The Agency determined it was not
liable for the repayment of this loan, since it already determined Complainant was entitled to lost
wages. The Agency stated to compensate Complainant for both lost wages and repayment of a
loan would constitute double compensation for the same losses suffered.

The Agency also determined Complainant was entitled to nonpecuniary, compensatory damages.
The Agency stated this was predicated upon its finding that the Agency failed to engage in the
good faith process prior to denying Complainant’s request for a reasonable accommodation. The
Agency noted there was some evidence showing the denial of reasonable accommodation and
the subsequent termination manifested in depression, as well as fatigue, back pain, muscle
spasms, and insomnia. The Agency recognized Complainant also demonstrated a temporary
inability to care for himself, including a decline in personal hygiene, by testimony provided by
his mother and a friend. The Agency found the evidence supported that “Complainant had a
significant and debilitating health problem during this period.”

However, the Agency found the scope of Complainant’s suffering was limited by his failure to
provide documents to support many of his claims. The Agency noted the evidence he did
present was limited and did not cover the time period in question. The Agency pointed out that
his prescription list reflected his prescription use only during a brief period from November 2010
– March 2011. The Agency noted the medical records submitted were incomplete and failed to
show increased visits during the period in question. The Agency emphasized that Complainant
did not provide a narrative statement from his primary care physician and only stated that he
visited his physician during the time of the events.

The Agency stated that the evidence indicated that many of Complainant’s health problems pre-
dated the denial of reasonable accommodation and the termination. The Agency noted the
medical records show the health problems continue to the present. The Agency noted
Complainant is a disabled veteran, and acknowledged he was diagnosed with Attention Deficit
Hyperactivity Disorder in 1987, and depression 2006. Complainant also suffered temporary
memory loss in 2010. The Agency found some of Complainant’s health problems, arguably
even the most serious, predate the denial of the reasonable accommodation and the subsequent
determination.

The Agency stated it appeared Complainant’s use of many prescription drugs significantly pre-
and post-date the period in question. The Agency stated the psychiatric records submitted by
Complainant show that he took many of the same prescription drugs, at various times, from
January 2008 – April 2015, well before and after the January 2011 termination. The Agency
found “whereas Complainant’s health problems seem to support a greater amount of
compensatory damages, more persuasive evidence establishes that a significantly smaller amount
is appropriate.” The Agency concluded the amount of compensatory damages is lessened
because of the pre-existing condition and the actual length of time that Complainant was
impacted by the termination.
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The Agency stated the conditions identified in Complainant’s medical record pre-date this cause
of action by as many as 24 years, and ostensibly are limited to the three months it took for
Complainant to find new work. Thus, the Agency awarded Complainant $3,000.00 in
nonpecuniary, compensatory damages.

The Agency recognized Complainant was also seeking reimbursement of $2,500.00 in attorney’s
fees. The Agency noted Complainant provided a Retainer Agreement and an Itemized Time
Sheet in support of that claim. The agreement stated, in the event of fee reimbursement by the
Agency under the Laffey Matrix, the firm will be compensated at that [higher] amount. The
Agreement also stated the firm charged a reduced hourly rate of $250.00 per hour and a
contingency of 40% of “all amounts we obtain for you, reduced by all amounts you have paid to
us.” The Agreement required a $2,500.00 retainer, but did not address the issue of what happens
if the total is less than the minimum retainer.

The Agency noted the Attorney Time Sheet showed 1.5 hours for telephone calls with
Complainant and the Investigator; 1 hour for email correspondence with Complainant and the
Investigator; 3 hours for meeting/consultation/reviewing and drafting documents, for a total of
5.5 hours at $250.00 per hour, for a total of $1,375.00. The Agency noted the documentation
provided did not show the attorney’s level of experience or her specific hourly rate.

The Agency found it undisputed Complainant was entitled to reasonable attorney’s fees. The
Agency stated the time expended for telephone calls and emails appeared to be reasonable. The
Agency stated some of the time claimed for meeting, consultation, reviewing, and drafting
documents may be slightly high, but not excessive. The Agency found Complainant could not
receive his total $2,500.00 retainer because it did not constitute an actual fee for services
rendered. Rather, the Agency found Complainant was entitled to reimbursement in the amount
of $1,375.00 for time actually expended by his attorney in this case.

Thus, the Agency determined Complainant was entitled to receive: (1) $6,552.90 for
approximately ten weeks lost wages; (2) $1,107.47 (5% matching contributions to his TSP); (3)
$779.80 (11.9% matching contributions to FERS); (4) restoration of 88 hours of leave (44 hours
of annual leave and 44 hours of sick leave); (5) a letter of explanation for his creditors that would
explain his situation for the ten-week period of employment; (6) payment of $3,000.00 in
nonpecuniary, compensatory damages; and (7) payment of $1,375.00 in attorney’s fees. The
Agency determined Complainant was not entitled to reimbursement for the $2,400.00 loan from
his mother. The Agency also noted that it had awarded Complainant with reinstatement to his
former position. However, the Agency noted it appeared that Complainant was currently
employed in a position at a higher grade. Thus, the Agency determined reinstatement was not
part of the present award.

On appeal, Complainant states that losing his job permanently altered the entire trajectory of his
life, and noted it still hangs over his head. He states it has been over five years since the
discrimination and it still makes him sad because he did not deserve to lose his job.
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He notes that he leased an apartment less than a block from the Agency Headquarters when he
received the job and lived there until November 2014. He explains that for over three and a half
years when he would see the Agency building, he would be reminded of what happened and
would feel sad, embarrassed, and ashamed. He states he never declined reinstatement with the
Agency and requests the Agency honor its prior finding.

In addition, Complainant challenges the damage award. Complainant acknowledges he has a
history of depression and various other medical problems. Complainant notes he provided
evidence regarding his medical, physical, and psychological health during the relevant time. He
states the evidence is not duplicative and shows a departure from his prior medical history.
Complainant disputes the Agency’s contention that the duration of harm is limited to the time
between termination and securing another job. Complainant states he was harmed from the
beginning of the unlawful actions taken against him while employed and extending beyond the
time alternative employment was secured.

The Agency filed its brief in opposition to Complainant’s appeal. The Agency notes that by
correspondence dated January 14, 2015, it formally offered to reinstate Complainant to his
former positon. The Agency claims it posted the notice of the finding of discrimination
throughout its Headquarters Building for a period of 30 days. The Agency also claims that all
directed payments have been issued and leave has been restored. The Agency explains the sole
remaining matter is the letter to the creditor that is to be drafted in collaboration with
Complainant’s attorney. The Agency states a draft document was sent to Complainant’s counsel
of record on June 7, 2016. To date, the Agency states it has not received a response.

The Agency addresses Complainant’s contention that he never declined the Agency’s offer of
employment. The Agency notes through correspondence dated January 14, 2015, it offered to
reinstate Complainant to the position of Equal Opportunity Assistant, GS-0360-5, Step 1. The
offer included that he would be reasonably accommodated. The offer indicated that in order to
accept the offer of employment, Complainant should contact the Human Resources Management
Division, Client Services Branch, Person A, within 45 days of receipt of this letter. The Agency
notes the letter was mailed via Federal Express and provides a copy of the FedEx tracking
receipt. The Agency stated according to the FedEx tracking system, the Agency’s offer was
received at Complainant’s residence on January 16, 2015. The Agency states to date,
Complainant has not responded. The Agency notes at this time, Complainant was employed as a
GS-2210-11 Information Technology Specialist at the Department of Veterans Affairs. The
Agency states Complainant expressed no interest in returning to his former GS-5 position. The
Agency further notes that since the offer expired 45 days after Complainant’s receipt and since
Complainant’s receipt is not in dispute, it is clear the offer expired 45 days after January 16,
2015.

The Agency also addresses Complainant’s argument regarding nonpecuniary, compensatory
damages. The Agency argues Complainant erroneously seeks to increase his award based on the
duration of the harm. Complainant states he incurred damages for months and even years
following the discrimination.
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However, the Agency states Complainant posits no factual evidence to support his bald
statement. The Agency claims the evidence shows the harm was incurred beginning in
December 2010, when he first sought a reasonable accommodation and ended in March 2011,
when he was offered a new position, at the GS-11 level. The Agency claims that if Complainant
was humiliated, embarrassed, and frustrated by virtue of his unemployed status, surely the fact
that he obtained employment at significantly increased pay must have assuaged those prevailing
feelings.

Thereafter, Complainant submitted a subsequent statement regarding this matter. Complainant
claimed the Agency failed to recognize his right to reinstatement with a reasonable
accommodation. In addition, Complainant modified his request for nonpecuniary, compensatory
damages in the amount of $133,700.00.

Complainant also claims the Agency delayed in issuing its final decision. Specifically, he notes
the Agency did not issue a final decision until three years after the AJ remanded his complaint to
the Agency for final action. Complainant also disputes the Agency’s contention that it made
some initial effort to provide him a reasonable accommodation. Complainant further argues that
he was not terminated as a result of the Agency’s determination that he was underperforming.

Complainant also challenges the Agency’s assertion that he made misrepresentations regarding
his right to reinstatement. Complainant contends that he accepted reinstatement on February 11,
2015, and sought information about the provision of an effective accommodation. Complainant
provides several emails sent between him and the Human Resources Management Division,
Client Services Branch (Person A) on February 11, 2015, with the subject “employment offer.”
Complainant explains that the next morning, he received a phone call from the damages
investigator who he claims failed to acknowledge the factual determinations memorialized in the
Agency’s November 14, 2014 final decision. Complainant does not dispute receiving the
Agency’s employment offer on January 16, 2015, and notes it only instructed him to contact the
Agency “to accept” reinstatement not accept or decline reinstatement (emphasis added).
Complainant states it is impossible to conclude that he contacted the Agency on February 11,
2015, four separate times including his submission of an email with the subject “Employment
Offer” for any reason other than to accept reinstatement.

Complainant also argues the Agency’s award for nonpecuniary, complainant damages was the
product of prejudice. Complainant notes the Agency’s statement that he was offered a new
position at the GS-11 level at significantly increased pay is not true. He notes he did receive a
job elsewhere; however, it was at the same GS-5 level. Complainant notes he did not reach the
GS-11 level until after the merit of his work demonstrated he deserved to be promoted over the
course of several years.

Additionally, Complainant recognizes the Agency is only responsible for the harm caused by
their unlawful discrimination. Complainant states that he sought relief for the harm caused by
the Agency’s unlawful discrimination. Complainant also complains that the Agency delayed in
issuing its decision on damages.
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Finally, Complainant challenges the Agency’s decision to deny him requested attorney’s fees.
Complainant claims the Agency rendered a reduced award for attorney’s fees without ever
issuing a determination that he was entitled to attorney’s fees and without permitting his attorney
to submit a statement of attorney’s fees and costs. Complainant states that the Agency failed to
issue a timely determination regarding attorney’s fees and costs.

ANALYSIS AND FINDINGS

As this is an appeal from a decision issued without a hearing, pursuant to 29 C.F.R.
§ 1614.110(b), the Agency's decision is subject to de novo review by the Commission. 29 C.F.R.
§ 1614.405(a). See Equal Employment Opportunity Management Directive for 29 C.F.R. Part
1614, at Chapter 9, § VI.A. (Aug. 5, 2015) (explaining that the de novo standard of review
“requires that the Commission examine the record without regard to the factual and legal
determinations of the previous decision maker,” and that EEOC “review the documents,
statements, and testimony of record, including any timely and relevant submissions of the
parties, and . . . issue its decision based on the Commission’s own assessment of the record and
its interpretation of the law”).

At the outset, we note that on appeal that the Agency does not challenge the finding of disability
discrimination that the Agency failed to accommodate Complainant. Thus, we AFFIRM the
finding that the Agency failed to accommodate Complainant. We also note Complainant does
not challenge the Agency’s determination that Complainant failed to establish that his
termination was the result of retaliation for requesting a reasonable accommodation. Thus, we
also AFFIRM that finding of no discrimination.

When discrimination is found, the agency must provide the complainant with a remedy that
constitutes full, make-whole relief to restore him as nearly as possible to the position he would
have occupied absent the discrimination. See, e.g., Franks v. Bowman Transp. Co., 424 U.S.
747, 764 (1976); Albemarle Paper Co. v. Moody, 422 U.S. 405, 418-19 (1975): Complainant v.
U.S. Postal Serv., EEOC Appeal No. 01933395 (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 of the Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. § 2000e
et seq. or Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29
U.S.C. § 791 et seq. 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). In West v. Gibson, 527 U.S. 212
(1999), the Supreme Court held that Congress afforded the Commission the authority to award
compensatory damages in the administrative process. 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. 42 U.S.C. § 1981a(b)(3).

Pecuniary damages

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Pecuniary losses are out-of-pocket expenses incurred as a result of the Agency’s unlawful action,
including job-hunting expenses, moving expenses, medical expenses, psychiatric expenses,
physical therapy expenses, and other quantifiable out-of-pocket expenses. Past pecuniary losses
are losses incurred prior to the resolution of a complaint through a finding of discrimination, or a
voluntary settlement.” EEO MD-110, at Chap. 11, VII.B.2 (Aug. 5, 2015) (internal citations
omitted).

“In a claim for pecuniary compensatory damages, Complainant must demonstrate, through
appropriate evidence and documentation, the harm suffered as a result of the Agency’s
discriminatory action. Objective evidence in support of a claim for pecuniary damages includes
documentation showing actual out-of-pocket expenses with an explanation of the expenditure.
The Agency is only responsible for those damages that are clearly shown to be caused by the
Agency’s discriminatory conduct. To recover damages, the Complainant must prove that the
employer’s discriminatory actions were the cause of the pecuniary loss.” Id. (internal citations
omitted).

In the instant case, Complainant requests to be reimbursed for a loan he received from his mother
during the relevant time in the amount of $2,400.00. We agree with the Agency that
Complainant is not entitled to reimbursement for this loan. Accordingly, we find that
Complainant failed to show an entitlement to pecuniary damages.

Nonpecuniary damages

Nonpecuniary losses are losses that are not subject to precise quantification, i.e., emotional pain,
suffering, inconvenience, mental anguish, loss of enjoyment of life, injury to professional
standing, injury to character and reputation, injury to credit standing, and loss of health. See
EEOC Notice No. 915.302, Enforcement Guidance on Compensatory and Punitive Damages
Available Under Section 102 of the Civil Rights Act of 1991, at 10 (July 14, 1992). There is no
precise formula for determining the amount of damages for nonpecuniary losses except that the
award should reflect the nature and severity of the harm and the duration or expected duration of
the harm. See Complainant v. Dep’t of the Treasury, EEOC Appeal No. 01955789 (Aug. 29,
1997). The Commission notes that nonpecuniary, compensatory damages are designed to
remedy the harm caused by the discriminatory event rather than to punish the agency for the
discriminatory action. Furthermore, compensatory damages should not be motivated by passion
or prejudice or be “monstrously excessive” standing alone but should be consistent with the
amounts awarded in similar cases. See Ward-Jenkins v. Dep’t of the Interior, EEOC Appeal No.
01961483 (Mar 4 1999).

Evidence from a health care provider or other expert is not a mandatory prerequisite for recovery
of compensatory damages for emotional harm. See Complainant v. U.S. Postal Serv., EEOC
Appeal No. 01952288 (Apr. 18, 1996) (citing Complainant v. Dep’t of the Navy, EEOC. Appeal
No. 01922369 (Jan. 5, 1993)).
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Objective evidence of compensatory damages can include statements from Complainant
concerning her 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 nonpecuniary losses that are incurred as a result of the
discriminatory conduct. Id.

Statements from others including family members, friends, health care providers, 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.
Id. Complainant’s own testimony, along with the circumstances of a particular case, can suffice
to sustain her burden in this regard. Id. The more inherently degrading or humiliating the
defendant’s action is, the more reasonable it is to infer that a person would suffer humiliation or
distress from that action. Id. The absence of supporting evidence, however, may affect the
amount of damages appropriate in specific cases. Id.

In determining the amount of the award, we are guided by the principle that a compensatory
damages award is limited to the amount necessary to compensate a complainant for the actual
harm caused by the Agency’s discriminatory action, and attempt to affix a reasonable dollar
value to compensate a complainant for that portion of the emotional distress and related
symptoms that were caused by the Agency’s discrimination. See Complainant v. U.S. Postal
Serv., EEOC Appeal No. 0120070230 (Dec. 17, 2009) (citing EEOC Notice No. 915.002 (July
14, 1992) at 13). Consequently, Complainant cannot recover compensatory damages for harm
related to those claims where no discrimination was found.

Taking into account, however, the evidence of nonpecuniary damages submitted by Complainant
for the denial of his reasonable accommodation request and his subsequent termination, we find
the Agency’s award of nonpecuniary, compensatory damages in the amount of $3,000.00 to be
inadequate. The Agency’s award is partly based on its determination that many of
Complainant’s health problems pre-dated the denial of reasonable accommodation and the
termination. While we recognize that Complainant had some pre-existing conditions, the
evidence shows that the discriminatory events at work exacerbated his conditions. While there is
little medical evidence concerning the extent of that exacerbation, there are statements from
Complainant, his mother, and his friend attesting to the physical and psychological effects the
events at work had on him. These statements show the denial of reasonable accommodation and
the subsequent termination manifested in anxiety, stress, depression, loss of confidence,
withdrawal from family and friends as well as fatigue, back pain, muscle spasms, and insomnia.
Complainant also demonstrated a temporary inability to care for himself, including a decline in
personal hygiene. We agree with the Agency that the evidence showed that “Complainant had a
significant and debilitating health problem during this period.”

We also note the Agency argued that the harm ended in March 2011, when Complainant was
offered a new position, at the GS-11 level.
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The Agency stated that if Complainant was humiliated, embarrassed, and frustrated by virtue of
his unemployed status, surely the fact that he obtained employment at significantly increased pay
must have assuaged those prevailing feelings. We point out that while Complainant did receive a
new job in March 2011, it was not at “significantly increased pay,” but was at the same GS-5
level as his original position with the Agency. While we note that Complainant did ultimately
ascend to the GS-11 level with the Department of Veterans Affairs, we note this took several
years for Complainant to achieve.

Upon review, we conclude that an award of $25,000 in nonpecuniary, compensatory damages
more appropriately compensates Complainant for the harm caused by the Agency. Our award
takes into account the duration and severity of the harm suffered, and is neither “monstrously
excessive” nor the product of passion or prejudice. In Faustino M. v. U.S. Postal Serv., EEOC
Appeal No. 0120161783 (Feb. 2. 2018), the Commission awarded $25,000 where complainant’s
back pain worsened as a result of being denied a reasonable accommodation and he experienced
mental stress, humiliation, depression, and embarrassment. In light of the circumstances of this
case and Commission precedent, we find $25,000 to be a more appropriate award of
nonpecuniary, compensatory damages.

Back pay

As part of his request for relief, Complainant requested back pay for 10 weeks of lost wages and
Agency retirement contributions for that period. Upon review, we find the Agency properly
determined Complainant was entitled to back pay and interest from the effective date of his
termination by the Agency until he obtained reemployment. The Agency determined
Complainant’s lost wages totaled $6,552.90 for ten weeks of lost wages. The Agency found
Complainant was entitled to $1,107.48 for 5% matching contributions to his TSP. The Agency
also awarded Complainant $779.80 for 11.9% matching contributions to FERS. Complainant
does not argue that the Agency’s calculations regarding back pay and retirement contributions
were insufficient. Upon review of the record, we find the Agency’s determination regarding
back pay was proper.

Leave

Complainant requested relief for 24 hours of annual leave and 24 hours of sick leave for leave
used to cope with the harm suffered as a result of the discrimination as well as leave forfeited by
his termination. Complainant requested restoration of the leave used or payment for the leave.
The Agency determined that as Complainant was a federal employee at a different Agency,
restoration of 24 hours of sick and 24 hours of annual leave was proper. We find the Agency
properly determined Complainant was entitled to restoration of 24 hours of annual leave and 24
hours of sick leave.

Complainant also requested he be compensated for the leave he lost for the 10 weeks following
his termination until he secured another job.
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Upon review, we find the Agency properly determined Complainant was entitled to 20 hours of
sick leave and 20 hours of annual leave for the stated time period. Complainant does not argue
that the leave award was inadequate.

Attorney’s fees

Complainant requested $2,500.00 in attorney’s fees. Despite Complainant’s argument, we find
he was afforded the opportunity to submit evidence in support of his claim for attorney’s fees.
Specifically, we note Complainant submitted a Retainer Agreement and an Itemized Time Sheet
in support of his claim. The Retainer Agreement stated the attorney’s hourly rate was $250.00
per hour. The Itemized Time Sheet shows the attorney spent a total of 5.5 hours of work on his
case. On appeal, Complainant does not dispute the total hours worked or the hourly rate charged
by the attorney. Upon review, we find the Agency properly determined Complainant was
entitled to attorney’s fees for 5.5 hours of work at a rate of $250.00 per hour, for a total of
$1,375.00 in attorney’s fees. In the present case, we find Complainant has not shown that he was
entitled to reimbursement for the Retainer Agreement.

Other relief

Complainant requested a letter of explanation for his creditors. Upon review, we find the
Agency properly determined Complainant would receive a letter from the Agency, drafted in
collaboration with Complainant, explaining to Complainant’s creditors that he was wrongfully
terminated and unemployed from January through March 2011.

The Agency determined Complainant was entitled to reinstatement to his former position as
relief for the finding of discrimination. The record reveals that on January 14, 2015, the Agency
mailed Complainant an offer of reinstatement with Agency Headquarters, OEDM, Washington,
D.C. to the position of Equal Opportunity Assistant, GS-0360-5, Step 1. The letter stated the
offer included a reasonable accommodation. The letter informed Complainant that to accept the
offer of employment, he should contact the Human Resources Management Division, Client
Services Branch, Person A within 45 days of receipt of the letter. The record reveals and
Complainant acknowledges that he received the offer on January 16, 2015. Despite
Complainant’s contention, we find the February 11, 2015 emails between Complainant and
Person A do not constitute evidence that Complainant accepted the Agency’s offer of
reinstatement. Thus, we find the Agency has shown it made an offer of reinstatement to
Complainant and the record reveals Complainant declined that offer, based on the fact that he
failed to accept the offer within the stated timeframe.

We note that S1 retired from the Agency and left federal service. There is no indication that any
other responsible management official was alleged or shown to be involved in the discrimination.
Thus, we do not order training or the consideration of disciplinary action for S1.

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Furthermore, we find Complainant’s contentions regarding the Agency’s delay in issuing its final
decision or other arguments regarding the Agency’s decision on the merits are untimely raised
and beyond the scope of the present appeal.

CONCLUSION

Accordingly, the Agency’s finding that Complainant was subjected to discrimination based on
disability is AFFIRMED. The decision on relief is MODIFIED and we REMAND the matter to
the Agency for compliance with the Order herein.

ORDER

To the extent it has not already done so, the Agency shall take the following actions:

1. Within 60 days of the date this decision is issued, pay Complainant $25,000 in
nonpecuniary, compensatory damages.
2. Within 60 days of the date this decision is issued, reimburse Complainant for leave
used or forfeited in the amount of 24 hours of sick leave and 24 hours of annual leave.
3. Within 60 days of the date his decision is issued, pay Complainant $1,375.00 in
attorney’s fees.
4. Within 60 days of the date this decision is issued, restore 20 hours of sick leave and
20 hours of annual leave to Complainant.
5. Within 60 days of the date this decision is issued, the Agency shall prepare a letter in
collaboration with Complainant, explaining to Complainant’s creditors that he was
wrongfully terminated and unemployed from January through March 2011.
6. Within 60 days of the date this decision is issued, the Agency shall pay Complainant
backpay in the amount of $8,440.18 (which includes lost wages and contributions to
TSP and FERS).

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.

POSTING ORDER (G0617)
The Agency is ordered to post at its Headquarters Washington, D.C. facility copies of the
attached notice. Copies of the notice, after being signed by the Agency's duly authorized
representative, shall be posted both in hard copy and electronic format by the Agency within
30 calendar days of the date this decision was issued, and shall remain posted for 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.
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The original signed notice is to be submitted to the Compliance Officer as directed in the
paragraph entitled "Implementation of the Commission's Decision," within 10 calendar days of
the expiration of the posting period. The report must be in digital format, and must be submitted
via the Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g).
ATTORNEY'S FEES (H1016)
If Complainant has been represented by an attorney (as defined by 29 C.F.R.
§ 1614.501(e)(1)(iii)), he 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 the date this decision was issued. 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 (K0618)
Under 29 C.F.R. § 1614.405(c) and §1614.502, compliance with the Commission’s corrective
action is mandatory. Within seven (7) calendar days of the completion of each ordered
corrective action, the Agency shall submit via the Federal Sector EEO Portal (FedSEP)
supporting documents in the digital format required by the Commission, referencing the
compliance docket number under which compliance was being monitored. Once all compliance
is complete, the Agency shall submit via FedSEP a final compliance report in the digital format
required by the Commission. See 29 C.F.R. § 1614.403(g). The Agency’s final report must
contain supporting documentation when previously not uploaded, and the Agency must send a
copy of all submissions to the Complainant and his/her representative.
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.
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STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0617)
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. A party
shall have twenty (20) calendar days of receipt of another party’s timely request for
reconsideration in which to submit a brief or statement in opposition. 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.
Complainant’s request 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
agency’s request must be submitted in digital format via the EEOC’s Federal Sector EEO Portal
(FedSEP). See 29 C.F.R. § 1614.403(g). 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 (T0610)
This decision affirms the Agency’s final decision/action in part, but it also requires the Agency
to continue its administrative processing of a portion of your complaint. 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 on both that portion of your complaint which
the Commission has affirmed and that portion of the complaint which has been remanded for
continued administrative processing. 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 your appeal with the Commission, until such time as the Agency issues its final decision on
your complaint.
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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 21, 2018
Date