Mike G.,1 Complainant,v.Tom J. Vilsack, Secretary, Department of Agriculture (Food Safety and Inspection Service), Agency.

Equal Employment Opportunity Commission

Sep 8, 2016

0120152027 (E.E.O.C. Sep. 8, 2016)

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

Mike G.,1
Complainant,

v.

Tom J. Vilsack,
Secretary,
Department of Agriculture
(Food Safety and Inspection Service),
Agency.

Appeal No. 0120152027

Agency No. FSIS-2010-00807

DECISION

Complainant filed an appeal regarding the award of remedies in the Agency’s September 30,
2014, final decision finding that Complainant was subjected to 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. For the reasons set forth herein, we modify the
remedies granted to Complainant.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a Food Inspector at
the Agency’s facility in Noel, Missouri. On September 1, 2010, Complainant filed an EEO
complaint alleging that the Agency discriminated against him on the basis of his disability
(respiratory and pulmonary) when on July 27, 2010, management denied him a reasonable
accommodation which resulted in him being unable to return to work.

On September 30, 2014, the Agency issued a final decision (FAD) concluding that
Complainant established that the Agency subjected him to unlawful disability discrimination as
alleged. Specifically, the Agency found that it violated the Rehabilitation Act when it
prematurely ended the interactive process and failed to provide Complainant with a reasonable
accommodation. By way of remedies, the FAD directed Complainant to submit a claim for any

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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damages arising from the unlawful discrimination within sixty days of receipt of the decision.
The FAD also directed Complainant that he had thirty days to provide a verified statement of
attorney’s fees and costs.

In his statement on appeal, Complainant requests backpay, attorney’s fees, and $300,000.00 in
nonpecuniary compensatory damages. In response, the Agency argues that Complainant is not
entitled to backpay or attorney’s fees and that he failed to prove his entitlement to
compensatory damages.

ANALYSIS AND FINDINGS

As a preliminary matter, we find that Complainant is not entitled to backpay or attorney’s fees.
In so finding, we note that the dates for which Complainant alleges that he is entitled to
backpay predate the instant complaint and the record shows that Complainant entered into a
settlement agreement with the Agency, dated February 12, 2010, resolving previous matters.
We also note that with respect to attorney’s fees, the FAD ordered Complainant to submit a
verified statement of attorney’s fees and costs to the Agency within thirty days of receipt of the
decision. The record shows that Complainant failed to provide the required documentation.
Accordingly, he is not entitled to attorney’s fees or costs for work prior to this appeal.
Next, 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. Dep't of
Transp., EEOC Appeal No. 0120083127 (May 2, 2012) (citing Carpenter v. Dep't. of Agric.,
EEOC Appeal No. 01945672 (July 17, 1995)).

Complainant provided a statement in support of his claim for nonpecuniary damages. He also
included supporting statements from medical professionals, family members, and friends. In
these statements, Complainant indicates that he experienced exacerbation of his depression,
anxiety, and post-traumatic stress disorder. He further states that he experienced weight gain,
diminished quality of life, a strain on his relationships, financial difficulties, and sleeplessness.

We find that Complainant has sufficiently described his symptoms, the aggravation of his
existing medical condition, as well as the impact the discrimination had on his emotional
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wellbeing. Based on our review of the evidence, we find that an award in the amount of
$10,000 in nonpecuniary compensatory damages is appropriate in the instant case. See
Complainant v. U.S. Postal Serv., EEOC Appeal No. 0120121071 (July 17, 2013) ($10,000 in
award where complainant experienced depression, sleeplessness, and feelings of desperation
due to Agency’s discrimination); Complainant v. Nat. Aeronautics and Space Admin., EEOC
Appeal No. 0120113282 (Mar. 26, 2013) ($10,000 award where complainant suffered from a
loss of enjoyment of life, fear of losing his job, loss of appetite, insomnia, nightmares, and
panic attacks when the Agency failed to provide a reasonable accommodation); Complainant v.
Dept. of Homeland Security, 0720100039 (April 24, 2012) ($10,000 award where the
complainant suffered humiliation, stress, and loss of sleep and appetite as a result of unlawful
discrimination).
Accordingly, we conclude that an award of $10,000 will adequately compensate Complainant
for the harm he suffered as a result of the Agency's failure to reasonably accommodate his
disability. We note that this amount meets the goals of not being motivated by passion or
prejudice, not being “monstrously excessive” standing alone, and being consistent with the
amounts awarded in similar cases. See Cygnar v. City of Chicago, 865 F.2d 827, 848 (7th Cir.
1989)

CONCLUSION

Accordingly, we MODIFY the remedies granted to Complainant and we direct the Agency to
comply with this decision and the Order herein.

ORDER

Within 60 days from the date this decision becomes final, the Agency shall pay Complainant
$10,000.00 in nonpecuniary compensatory damages.

The Agency shall submit a report of compliance, as provided in the paragraph entitled
“Implementation of the Commission’s Decision.” The report shall include supporting
documentation verifying that the corrective action has been implemented.

IMPLEMENTATION OF THE COMMISSION'S DECISION (K0610)

Compliance with the Commission's corrective action is mandatory. The Agency shall submit
its compliance report within thirty (30) calendar days of the completion of all ordered
corrective action. The report shall be submitted to the Compliance Officer, Office of Federal
Operations, Equal Employment Opportunity Commission, P.O. Box 77960, Washington, DC
20013. The Agency's report must contain supporting documentation, and the Agency must
send a copy of all submissions to the Complainant. If the Agency does not comply with the
Commission's order, the Complainant may petition the Commission for enforcement of the
order. 29 C.F.R. § 1614.503(a). The Complainant also has the right to file a civil action to
enforce compliance with the Commission's order prior to or following an administrative
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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.

ATTORNEY'S FEES (H0610)

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 this decision becoming final. The Agency shall then process the
claim for attorney's fees in accordance with 29 C.F.R. § 1614.501.

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.
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Failure to file within the time period will result in dismissal of your request for reconsideration
as untimely, unless extenuating circumstances prevented the timely filing of the request. Any
supporting documentation must be submitted with your request for reconsideration. The
Commission will consider requests for reconsideration filed after the deadline only in very
limited circumstances. See 29 C.F.R. § 1614.604(c).

COMPLAINANT’S RIGHT TO FILE A CIVIL ACTION (R0610)

This is a decision requiring the Agency to continue its administrative processing of your
complaint. However, if you wish to file a civil action, you have the right to file such action in
an appropriate United States District Court within ninety (90) calendar days from the date that
you receive this decision. In the alternative, you may file a civil action after one hundred and
eighty (180) calendar days of the date you filed your complaint with the Agency, or filed your
appeal with the Commission. If you file a civil action, you must name as the defendant in the
complaint the person who is the official Agency head or department head, identifying that
person by his or her full name and official title. Failure to do so may result in the dismissal of
your case in court. “Agency” or “department” means the national organization, and not the
local office, facility or department in which you work. Filing a civil action will terminate the
administrative processing of your complaint.

RIGHT TO REQUEST COUNSEL (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