01971579
04-06-2000
George R. Burchfield, Complainant, v. Lawrence H. Summers, Secretary, Department of the Treasury, Agency.
George R. Burchfield v. Department of the Treasury
01970152
April 6, 2000
George R. Burchfield, )
Complainant, ) Appeal Nos. 01970152
) 01971579
v. ) Agency Nos. 93-1028
) 94-2024
Lawrence H. Summers, ) 95-2280
Secretary, )
Department of the Treasury, )
Agency. )
)
DECISION
Complainant timely appealed the agency's final decisions concerning
his complaints of unlawful employment discrimination in violation of
Section 501 the Rehabilitation Act of 1973, as amended, 29 U.S.C. �
791, et seq.<1> The above-referenced appeals are accepted. See 64
Fed. Reg. 37,644, 37,659 (to be codified and hereinafter referred to as
29 C.F.R. � 1614.402(a)).
The agency employed complainant as a GS-12 computer specialist at its
regional financial management service center in Birmingham, Alabama.
He filed three complaints which set forth four claims of discrimination
on the basis of physical disability (amputated leg). He claimed that
the agency failed to reasonably accommodate his disability by sending
him to a training facility that was not equipped to handle his oversized
wheelchair (93-1028); and by not enlarging the door to a file room in
which his work was stored (95-2280, Issue 1). He also claimed that
the agency discriminated against him by: not promoting him to a GS-13
computer specialist position in July 1993 (94-2024); and by not promoting
him to deputy manager of electronic operations in January 1995 (95-2280,
Issue 2). The agency investigated all three complaints and issued two
final decisions finding no discrimination on all four claims. It is
from these final decisions that complainant now appeals.
Eligibility for Rehabilitation Act Protection
To bring a claim of disability discrimination, complainant must
first establish that he has a disability within the meaning of the
Rehabilitation Act. Murphy v. United Parcel Service, Inc., 119 S.Ct. 2133
(1999); Sutton v. United Air Lines, Inc., 119 S.Ct. 2139, 2141-42 (1999);
Albertsons, Inc., v. Kirkingburg, 119 S.Ct. 2162, 2167-68 (1999).
An individual with a disability is one who has, has a record of, or
is regarded as having a physical impairment that substantially limits
one or more of his major life activities. 29 C.F.R. � 1630.2(g).<2>
At the time that his complaints arose, complainant used a wheelchair
due to the amputation of his right leg. Thus, his ability to walk, a
major life activity, is substantially limited. He is therefore within
the protection of the Rehabilitation Act.
Failure-to-Accommodate Claim
In addition to establishing that he has a disability, complainant must
also show that he is qualified. See Cleveland v. Policy Management
Systems Corp., 119 S.Ct. 1597 (1999). A qualified individual with a
disability is one who can, with or without reasonable accommodation,
perform the essential functions of the position in question. 29 C.F.R. �
1630.2(m). Complainant has amply demonstrated his ability to perform
all of the essential functions of his computer specialist position,
as long as his work areas are wheelchair-accessible. The agency is
therefore required to reasonably accommodate complainant's known
limitations unless it can show that doing so would cause an undue
hardship. 29 C.F.R. � 1630.9(a); Enforcement Guidance on Reasonable
Accommodation and Undue Hardship Under the Americans with Disabilities
Act, EEOC Notice No. 915.002, 2-7 (March 1, 1999).
93-1028
The agency required complainant to attend training at its facility in
Hyattsville, Maryland, between September 21 and September 25, 1992.
In approving complainant's travel orders, the regional director
authorized his wife to accompany him. Prior to departure, the deputy
manager of the Birmingham facility directed the administrative officer
to notify the Hyattsville facility that complainant was disabled, and to
inquire about accessibility for individuals in oversize wheelchairs. The
administrative officer indicated that when she contacted Hyattsville,
she was told that although the building was accessible, the restrooms
were not. Investigative Report Complaint No. 93-1028 (hereinafter "IR
93") at 57-58, 60.<3> Thus, the managers of the Birmingham facility were
told that there were problems accessing the bathrooms in Hyattsville, but
complainant was never told about those problems before he made the trip.
IR 93 at 63. Because this information never reached complainant before
he left Birmingham, he was unable to use the bathroom facilities at the
Hyattsville facility without enduring extreme difficulties and suffering
humiliating embarrassments. IR 93 at 42-46. We therefore find that the
agency failed to follow up in a manner that would ensure complainant's
access to all relevant parts of the Hyattsville facility, and hence,
failed to reasonably accommodate complainant's disability during his
September 1992 training session at that facility.
Once discrimination is found, the agency is required to make complainant
"whole" by restoring him to a position where he would have been were it
not for unlawful discrimination. Franks v. Bowman Transportation Co.,
424 U.S. 747, 764 (1976); Albemarle Paper Co. v. Moody, 422 U.S. 405,
418 (1975); Wrigley v. United States Postal Service, EEOC Petition
No. 04950005 (February 15, 1996). In a joint statement, the building
manager for the Maryland District and the facilities management division
director indicated that the lease in existence at the time did not
require the Hyattsville building to be accessible to disabled individuals.
A new lease was set to go into effect on October 1, 1992, however, which
explicitly required that the building be retrofitted in order to become
accessible to disabled individuals. These individuals also indicated
that, in accordance with the terms of the new lease, the restrooms were
to be upgraded to conform to the requirements of the Americans With
Disabilities Act. IR 93 at 121-22. Although this statement is neither
sworn nor dated, the record does not contain any documents or testimony
that contradicts it or otherwise undermines the credibility of these
witnesses. Moreover, complainant has not presented any evidence that
he was required to return to the Hyattsville facility after September
1992, or that the restrooms had not been upgraded according to the
terms of the October 1992 lease. Complainant has not shown that he was
denied the training, or that he lost pay or other employment benefits
as a result of the agency's failure to accommodate his disability in
September 1992. He is therefore not entitled to any equitable remedies
other than having a notice of a Rehabilitation Act violation posted at
the Birmingham facility. If complainant was represented by counsel,
he would also be entitled to attorneys fees.
In addition, complainant may be entitled to compensatory damages as
a result of the embarrassment and humiliation that he endured as
a consequence of not being able to use the bathroom facilities at
Hyattsville. Where a discriminatory practice involves the provision
of a reasonable accommodation, damages may be awarded if the agency
fails to demonstrate that it made a good faith effort to provide
the individual with a reasonable accommodation for his disability.
42 U.S.C. � 1981a(a)(3); Morris v. Department of Defense, EEOC Appeal
No. 01962984 n.3 (October 1, 1998). In this case, the failure of the
Birmingham facility's management to inform complainant of the problems
with the bathroom in Hyattsville, after being told of those problems
by people at the Hyattsville facility, clearly constitutes bad faith.
Complainant is therefore entitled to present a claim for compensatory
damages. See West v. Gibson, 527 U.S. 212 (1999). The agency should
request that complainant provide objective evidence of the alleged
damages. See Benton v. Department of Defense, EEOC Appeal No. 01932422
(December 10, 1993).<4>
95-2280, Issue 1
Complainant's right leg was amputated in January 1992, and he returned
to work shortly thereafter. In March 1992, complainant requested that
the doors to the entrance of the Birmingham facility, the mens's room
and the programmer's file room be enlarged to allow him easier access.
Complainant acknowledged that the agency enlarged all of the doors
except for the file room door. He stated that he made numerous requests
that the file room door be enlarged, to no avail. SIR 95, at 55.
Complainant's supervisors stated that as soon as he became aware of
complainant's disability, he had the files routinely used by complainant
relocated from the file room directly to his office, so that he would
not have to make the trip. The supervisors also stated that during
non-peak periods, an operator was assigned to assist complainant, that
complainant used crutches to enter the file room, and that complainant
expressed satisfaction with these accommodations. In September 1993,
after complainant notified management that he still needed to access the
file room to access the laser printer, management installed a printer in
his office which delivered comparable-quality print copies. In August
1995, the agency relocated the file room to an area to which complainant
had complete access through the door, while still allowing him to keep
files in his office and providing an assistant to help him run tests.
SIR 95, at 111-12, 130-31. Based upon our review of the record, we
find that the agency satisfied its obligation to reasonably accommodate
complainant's disability at the Birmingham facility.
Disparate Treatment Claim
To prevail in a disparate treatment claim such as this, complainant must
satisfy the three-part evidentiary scheme fashioned by the Supreme Court
in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Although the
Supreme Court's three-part evidentiary scheme for analyzing disparate
treatment claims developed in the context of Title VII, it applies to
disparate treatment claims brought under the Rehabilitation Act where
the agency does not ostensibly rely upon complainant's disability as
the reason for its actions. Hansen v. Department of the Air Force,
EEOC Appeal No. 01920621 (September 10, 1992); Prewitt v. United States
Postal Service, 662 F.2d 292, 305 n.19 (5th Cir. 1981).
Complainant must initially establish a prima facie case by demonstrating
that he was subjected to an adverse employment action under circumstances
that would support an inference of discrimination. Furnco Construction
Co. v. Waters, 438 U.S. 567, 576 (1978). Proof of a prima facie case will
vary depending on the facts of the particular case. McDonnell Douglas,
411 U.S. at 804 n.14. Where nonselection or non-promotion is at issue,
complainant may establish a prima facie case of discrimination with a
showing that he is a member of a protected group, that he applied for
a position for which he was qualified, that he was not selected, and
that the selectee was outside of his protected group. Silva v. United
States Postal Service, EEOC Request No. 05931164 (May 12, 1994); Keyes
v. Secretary of the Navy, 853 F.2d 1016, 1023 (1st Cir. 1988). A lack of
comparative evidence is not necessarily fatal to the prima facie case,
however, if the necessary inference of discrimination can otherwise
be established. See O'Connor v. Consolidated Coin Caters Corp., 507
U.S. 308, 312-13 (1996); Enforcement Guidance on O'Connor v. Consolidated
Coin Caters Corp., EEOC Notice No. 915.002, n.4 (September 18, 1996);
Carson v. Bethlehem Steel Corp., 82 F.3d 157, 159 (7th Cir. 1996).
Once complainant establishes a prima facie case, the burden then shifts
to the agency to articulate a legitimate, nondiscriminatory reason for its
actions. Texas Department of Community Affairs v. Burdine, 450 U.S. 248,
253 (1981). The agency's articulated reason need only be sufficient to
rebut the inference of discrimination raised by the prima facie case.
See Greene v. Department of Health & Human Services - Social Security
Administration, EEOC Request No. 05890987 (December 1, 1989).
To ultimately prevail, complainant must prove, by a preponderance of the
evidence, that the agency's explanation is pretextual. St. Mary's Honor
Center v. Hicks, 509 U.S. 502, 519 (1993); Pavelka v. Department of the
Navy, EEOC Request No. 05950351 (December 14, 1995). While disbelief
of the agency's articulated reasons does not compel a finding of
discrimination as a matter of law, disbelief of the reasons put forward
by the agency, together with the elements of the prima facie case, may
suffice to show intentional discrimination. Hicks, 509 U.S. at 511;
EEOC Enforcement Guidance on St. Mary's Honor Center v. Hicks, EEOC
Notice No. 915.002 (April 12, 1994); Huerta v. Department of the Air
Force, EEOC Request No. 05930802 (April 1, 1994). The agency generally
has broad discretion to set policies and carry out personnel decisions,
and will not be second-guessed by the reviewing authority absent evidence
of unlawful motivation. Vanek v. Department of the Treasury, EEOC Request
No. 05940906 (January 16, 1997); Kohlmeyer v. Department of the Air Force,
EEOC Request No. 05960038 (August 8, 1996); Burdine, 450 U.S. at 259.
On the other hand, a finding of pretext could be supported by a showing
that complainant's qualifications were plainly superior to those of
the selectee. Wasser v. Department of Labor, EEOC Request No. 05940058
(November 2, 1995); Bauer v. Bailar, 647 F.2d 1037, 1048 (10th Cir. 1981).
94-2024
The agency promoted a non-disabled colleague of complainant's to
the position of GS-13 computer specialist on July 11, 1993, under
vacancy announcement no. 93-07. SIR 94, at 297. This is sufficient to
establish a prima facie case. The agency's stated reason for promoting
the comparator was that it was merely making permanent a temporary
promotion that had already been in effect for two years. SIR 94, at 201.
This reason is legitimate, nondiscriminatory, and fully supported by
the record. A comparison of the two candidates' qualifications reveals
that both of them had extensive GS-12 experience as either specialists,
programmers, or systems analysts. Both served as leads in various
projects, and both received numerous awards. The distinguishing factors,
however, were that the comparator had been a GS-12 for nine years longer
than complainant, and that the comparator had already been working at
the GS-13 level for two years when the vacancy announcement was issued.
SIR 94, at 148-293, 299-300. We therefore find that complainant's
qualifications are not so plainly superior to those of the comparator
as to compel a finding of pretext in this case.<5>
95-2280, Issue 2
In January 1995, two other non-disabled employees were selected under
vacancy announcement no. 95-04 for GS-13 deputy manager positions.
IR 95, at 787-90. As in the prior non-selection, we find this to be
sufficient to establish a prima facie case. The agency's articulated
reason for not promoting complainant is that the two selectees were
better qualified, as evidenced by the fact that the promotion and review
panel for the positions gave higher assessments to the two selectees
than to complainant. IR 95, at 211-22. This reason is legitimate,
nondiscriminatory, and sufficiently documented in the record to rebut
the inference of discrimination raised in complainant's prima facie case.
The applicants for this position were rated on their managerial potential,
rather than their demonstrated technical capabilities. IR 95, at 217.
Consequently, although one of the selectees did not have experience
as a journeyman computer specialist, she had extensive managerial
experience, as demonstrated by her having been a GS-13 since 1989. IR 95,
at 340-382. She also had outstanding performance evaluations, which
were heavily weighted in the ranking process. IR 95, at 224-25, 366-82.
The second selectee had been a journey-level computer specialist between
1983 and 1988, and had been a GS-12 financial program analyst between
1988 and 1995. This individual also received outstanding performance
evaluations. IR 95, at 383-474. By contrast, complainant's most recent
performance evaluation had been lowered to fully successful, due to the
fact that he was counseled about sleeping on the job, and concerns had
been raised about his productivity. SIR 95, at 132, 164-65. As in the
July 1993 nonpromotion, we find that complainant's qualifications are
not plainly superior to those of the selectees. Consequently, we find
that complainant failed to prove that the agency's articulated reason
for not promoting him in 1995 was a pretext for discrimination.
Conclusion
After a review of the record in its entirety, including consideration
of all statements submitted on appeal, it is the decision of the
Equal Employment Opportunity Commission to reverse the agency's final
decision of no discrimination on Complaint No. 93-1028. It is also the
Commission's decision to affirm the agency's final decisions in which
it found no discrimination with respect to Complaint Nos. 94-2024 and
95-2280, because the preponderance of the evidence does not establish
that discrimination had occurred with respect to the three claims raised
in these complaints.
ORDER (D1199)
The agency is ORDERED to take the following remedial action:
The agency shall accept and process complainant's claim for compensatory
damages. The agency shall notify complainant, in writing, that he
has the right to present objective evidence in support of his claim
for damages. Such evidence may include statements from complainant
and other witnesses which provide detailed information on the physical
manifestations of any mental or emotional distress, the intensity and
duration of such symptoms, and how such stress was causally related to
the Birmingham facility management's failure to inform him about the
inaccessibility of the bathrooms at the Hyattsville training facility.
The agency shall complete this action within sixty (60) days of the date
that this decision becomes final.
The agency shall provide training for the management of the regional
financial management service center in Birmingham, Alabama, as to their
responsibilities and obligations under the Rehabilitation Act of 1973,
as amended by the Americans with Disabilities Act of 1990, particularly
with respect to an employer's obligation to provide qualified disabled
individuals with reasonable accommodations for those disabilities.
The agency shall complete this action within sixty (60) days of the date
that this decision becomes final.
The agency shall post at its regional management service center in
Birmingham, Alabama, copies of the attached notice. Copies of the notice,
after being signed by the agency's duly authorized representative, shall
be posted by the agency within thirty (30) calendar days of the date
this decision becomes final, and shall remain posted for sixty (60)
consecutive days, in conspicuous places, including all places where
notices to employees are customarily posted. The agency shall take
reasonable steps to ensure that said notices are not altered, defaced,
or covered by any other material. The original signed notice is to be
submitted to the Compliance Officer at the address cited in the paragraph
entitled "Implementation of the Commission's Decision," within ten (10)
calendar days of the expiration of the posting period.
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 computation of compensatory damages, as well as documentary
evidence that the corrective action outlined in items (1) and (2) of
this order has been implemented.
Complainant shall cooperate in the agency's efforts to provide the relief
ordered above, including damages due, and shall provide all relevant
information requested by the agency. Complainant may petition for
enforcement or clarification of the amount in dispute. The petition for
clarification or enforcement must be filed with the Compliance Officer,
at the address referenced in the statement entitled "Implementation of
the Commission's Decision."
ATTORNEY'S FEES (H1199)
If complainant has been represented by an attorney (as defined by 64
Fed. Reg. 37,644, 37,659-60 (1999) (to be codified and hereinafter
referred to as 29 C.F.R. � 1614.501(e)(1)(iii)), she is entitled to an
award of reasonable attorney's fees incurred in the processing of the
complaint. 29 C.F.R. � 1614.501(e). The award of attorney's fees shall
be paid by the agency. The attorney shall submit a verified statement of
fees to the agency -- not to the Equal Employment Opportunity Commission,
Office of Federal Operations -- within thirty (30) calendar days of this
decision becoming final. The agency shall then process the claim for
attorney's fees in accordance with 29 C.F.R. � 1614.501.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K1199)
Compliance with the Commission's corrective action is mandatory.
The agency shall submit its compliance report within thirty (30)
calendar days of the completion of all ordered corrective action. The
report shall be submitted to the Compliance Officer, Office of Federal
Operations, Equal Employment Opportunity Commission, P.O. Box 19848,
Washington, D.C. 20036. The agency's report must contain supporting
documentation, and the agency must send a copy of all submissions to the
complainant. If the agency does not comply with the Commission's order,
the complainant may petition the Commission for enforcement of the order.
29 C.F.R. � 1614.503(a). The complainant also has the right to file a
civil action to enforce compliance with the Commission's order prior
to or following an administrative petition for enforcement. See 64
Fed. Reg. 37,644, 37,659-60 (1999) (to be codified and hereinafter
referred to as 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)(Supp. V 1993). If the complainant files a civil action, the
administrative processing of the complaint, including any petition for
enforcement, will be terminated. See 64 Fed. Reg. 37,644, 37,659 (1999)
(to be codified and hereinafter referred to as 29 C.F.R. � 1614.409).
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0300)
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 64
Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter referred
to as 29 C.F.R. � 1614.405); Equal Employment Opportunity Management
Directive for 29 C.F.R. Part 1614 (EEO MD-110), 9-18 (November 9, 1999).
All requests and arguments must be submitted to the Director, Office of
Federal Operations, Equal Employment Opportunity Commission, P.O. Box
19848, Washington, D.C. 20036. In the absence of a legible postmark, the
request to reconsider shall be deemed timely filed if it is received by
mail within five days of the expiration of the applicable filing period.
See 64 Fed. Reg. 37,644, 37,661 (1999) (to be codified and hereinafter
referred to as 29 C.F.R. � 1614.604). The request or opposition must
also include proof of service on the other party.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely, unless extenuating circumstances
prevented the timely filing of the request. Any supporting documentation
must be submitted with your request for reconsideration. The Commission
will consider requests for reconsideration filed after the deadline only
in very limited circumstances. See 29 C.F.R. � 1614.604(c).
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (Q1199)
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 filed your appeal with the Commission.
If you file a civil action, YOU MUST NAME AS THE DEFENDANT IN THE
COMPLAINT THE PERSON WHO IS THE OFFICIAL AGENCY HEAD OR DEPARTMENT HEAD,
IDENTIFYING THAT PERSON BY HIS OR HER FULL NAME AND OFFICIAL TITLE.
Failure to do so may result in the dismissal of your case in court.
"Agency" or "department" means the national organization, and not the
local office, facility or department in which you work. Filing a civil
action will terminate the administrative processing of your complaint.
RIGHT TO REQUEST COUNSEL (Z1199)
If you decide to file a civil action, and if you do not have or cannot
afford the services of an attorney, you may request that the Court appoint
an attorney to represent you and that the Court permit you to file the
action without payment of fees, costs, or other security. See Title VII
of the Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e et seq.;
the Rehabilitation Act of 1973, as amended, 29 U.S.C. �� 791, 794(c).
The grant or denial of the request is within the sole discretion of
the Court. Filing a request for an attorney does not extend your time
in which to file a civil action. Both the request and the civil action
must be filed within the time limits as stated in the paragraph above
("Right to File A Civil Action").
FOR THE COMMISSION:
April 6, 2000
DATE Frances M. Hart
Executive Officer
Executive Secretariat
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days of mailing. I certify that
the decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
_________________________ __________________________
DATE
1On November 9, 1999, revised regulations governing the EEOC's federal
sector complaint process went into effect. These regulations apply to
all federal sector EEO complaints pending at any stage in the
administrative process. Consequently, the Commission will apply the
revised regulations found at 64 Fed. Reg. 37,644 (1999), where
applicable, in deciding the present appeal. The regulations, as amended,
may also be found at the Commission's website at www.eeoc.gov.
2The Rehabilitation Act was amended in 1992 to apply the standards in the
Americans with Disabilities Act (ADA) to complaints of discrimination
by federal employees or applicants for employment. Since that time,
the ADA regulations set out at 29 C.F.R. Part 1630 apply to complaints
of disability discrimination. These regulations can also be found on
EEOC's website: www.eeoc.gov.
3Citations to the record in the other complaints will be as follows:
the investigative report for Complaint No. 94-2024 will be referred to as
"IR 94;" the supplemental investigative report for Complaint No. 94-2024
will be referred to as "SIR 94;" the investigative report for Complaint
No. 95-2280 will be referred to as "IR 95;" and the supplemental
investigative report for Complaint No. 95-2280 will be referred to as
"SIR 95."
4In Carle v. Department of the Navy, EEOC Appeal No. 01922369 (January 5,
1993), the Commission described the type of objective evidence that an
agency may obtain when assessing the merits of a complainant's request
for emotional distress damages:
[E]vidence should have taken the form of a statement by [complainant]
describing her emotional distress, and statements from witnesses, both
on and off the job, describing the distress. To properly explain the
emotional distress, such statements should include detailed information
on physical or behavioral manifestations of the distress, information on
the duration of the distress, and examples of how the distress affected
complainant day to day, both on and off the job. In addition, the agency
should have asked complainant to provide objective and other evidence
linking ... the distress to the unlawful discrimination... .Objective
evidence may include statements from the [complainant] concerning his or
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
non-pecuniary losses that are incurred as a result of the discriminatory
conduct. Statements from others, including family members, friends, and
health care providers could address the outward manifestations or physical
consequences of emotional distress, including sleeplessness, anxiety,
stress, depression, marital strain, humiliation, loss of self-esteem,
excessive fatigue, or a nervous breakdown. Objective evidence may also
include documents indicating a complainant's actual out-of-pocket expenses
related to medical treatment, counseling, and so forth, related to the
injury caused by the respondent's discriminatory action.
5 By January 1995, complainant had been promoted to GS-13 supervisory
computer specialist. IR 95, at 215.