EEOC Appeal No. 0120160554
03-22-2018
Queen L. v. Dep't of Agric.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Queen L.,1
Complainant,
v.
Sonny Perdue,
Secretary,
Department of Agriculture
(Forest Service),
Agency.
Appeal No. 0120160554
Agency No. FS-2014-00308
DECISION
On November 23, 2015, 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 October 19, 2015, final decision concerning her claim for compensatory damages awarded pursuant to her 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 AFFIRMS the Agency's final decision.
ISSUE PRESENTED
The issue presented is whether the Agency's award of $15,000 in non-pecuniary compensatory damages was sufficient to compensate Complainant for the emotional distress caused by the Agency's failure to engage in the interactive process and the Agency's discriminatory decision to demote her.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Program Support Assistant, 0303, GS-07 at the Agency's Finger Lakes National Forest facility in Hector, New York.
On April 7, 2014, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the basis of disability (anxiety, depression, and Irritable Bowel Syndrome (IBS)) when:
1. On or about December 9, 2013, the Agency failed to engage Complainant in the interactive process regarding her request for a reasonable accommodation;2
2. On February 18, 2014, she received a Letter of Proposed Demotion, which was upheld on April 16, 2014, and she was demoted from her GS-0303-07 Program Support Assistant position to a GS-1001-05, Visitor Services Information Assistant position, effective May 4, 2014;3 and
3. On several dates, she was subjected to incidents of harassment, including:
a. On July 2, 2013, July 10, 2013, and August 6, 2013, and other unspecified dates she was accused of failing to perform her duties;
b. On September 6, 2013, her supervisor shouted at her, denigrated her work, and told her to "come back here" several times in front of other employees;
c. On an unspecified date, she was told that she needed to "get over" her divorce;
d. On unspecified dates, her supervisor stated that she was taking off too much time to deal with her mother's health concerns; and
e. On unspecified dates, her supervisor constantly ridiculed her for her performance deficiencies and reprimanded her in the presence of others.
At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation and notice of her right to request a hearing before an Equal Employment Opportunity Commission Administrative Judge (AJ). When Complainant did not request a hearing within the time frame provided in 29 C.F.R. � 1614.108(f), the Agency issued a final decision pursuant to 29 C.F.R. � 1614.110(b). The Agency's final decision on liability concluded that Complainant proved that the Agency subjected her to discrimination as alleged in claims 1 and 2.
Pursuant to its finding of discrimination, the Agency ordered a supplemental investigation into Complainant's entitlement to compensatory damages, consideration of disciplinary action against the responsible management officials, the provision of training for the responsible management officials, the posting of a notice, and payment of any applicable attorney's fees.
During the supplemental investigation on compensatory damages, Complainant requested $500 in past pecuniary compensatory damages for medical expenses and also requested non-pecuniary compensatory damages, although she did specify the amount of non-pecuniary damages. Complainant submitted a personal statement indicating that the discrimination had a negative effect on her career and her personal life, both financially and emotionally. Complainant stated that she experienced depression, anxiety, chronic diarrhea, nausea, sleeplessness, and night sweats and that she was no longer able to work. Complainant stated that she filed for bankruptcy and had to borrow money from family members in order to keep her home. Complainant submitted a January 5, 2015, letter from her doctor, which indicated that the doctor had treated Complainant for depression and anxiety since October 2014. Complainant also submitted statements from her brother, her ex-husband, her niece, and two friends, which all indicated that Complainant experienced increased stress and anxiety as a result of her work situation, which also caused financial problems.
In response to the statements from Complainant, her doctor, and her witnesses, the Agency recommended in a brief that the final decision on compensatory damages award Complainant $500 in past pecuniary damages and $5,000 in non-pecuniary damages.
On October 19, 2015, the Agency issued its final decision on compensatory damages. The Agency's final decision awarded Complainant $500 in pecuniary damages and $15,000 in non-pecuniary damages and also awarded Complainant the amount of lost Agency matching contributions to her Thrift Savings Plan (TSP) as a result of her unlawful demotion, plus interest.4 The Agency found that Complainant's expenses related to her financial difficulties and filing for bankruptcy were not compensable because the evidence did not establish that the discrimination caused Complainant's financial problems. In determining the amount of non-pecuniary damages, the Agency's final decision considered the lack of medical documentation regarding Complainant's pre-existing conditions or the severity, nature, and duration of those conditions. However, the final decision concluded that Complainant's statement as well as those submitted by her witnesses established that she was entitled to non-pecuniary damages for the emotional stress caused by the Agency's failure to engage in the interactive process and the Agency's decision to demote her. The Agency found that Commission precedent indicated that a range of $10,000 to $20,000 was appropriate and determined that an award in the middle of that range would appropriately compensate Complainant. The instant appeal followed.
CONTENTIONS ON APPEAL
On appeal, Complainant contends that she is entitled to compensatory damages in the amount of $120,000 based on the evidence that she presented and based on past awards by the Commission.
In response to Complainant's appeal, the Agency contends that the award of $15,000 in non-pecuniary compensatory damages was appropriate based on the evidence presented by Complainant. The Agency requests that its final decision on compensatory damages be affirmed.
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").
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); Adesanya 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)
To receive an award of compensatory damages, a complainant must demonstrate that he or she has been harmed as a result of the agency's discriminatory action; the extent, nature, and severity of the harm; and the duration or expected duration of the harm. Rivera v. Dep't of the Navy, EEOC Appeal No. 01934157 (July 22, 1994), req. for reconsideration denied, EEOC Request No. 05940927 (Dec. 11, 1995); Compensatory and Punitive Damages Available Under Section 102 of the Civil Rights Act of 1991, EEOC Notice No. 915.002 (July 14, 1992), at 11-12, 14.
Compensatory damages may be awarded for the past pecuniary losses, future pecuniary losses, and non-pecuniary losses which are directly or proximately caused by the agency's discriminatory conduct. EEOC Notice No. 915.002 at 8. Objective evidence of compensatory damages can 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 nonpecuniary losses that are incurred as a result of the discriminatory conduct. 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. See Lawrence v. U.S. Postal Serv., EEOC Appeal No. 01952288 (Apr. 18, 1996), citing Carle v. Dep't of the Navy, EEOC Appeal No. 01922369 (Jan. 5, 1993).
Evidence from a health care provider or other expert is not a mandatory prerequisite for recovery of compensatory damages for emotional harm. A complainant's own testimony, along with the circumstances of a particular case, can suffice to sustain his or her burden in this regard. 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. The absence of supporting evidence, however, may affect the amount of damages appropriate in specific cases. Lawrence, EEOC Appeal No. 01952288.
Neither party challenges the award of pecuniary damages, including the Agency's determination that Complainant's expenses related to her financial difficulties were not compensable, or the award of lost Agency TSP matching contributions, so we will turn to the Agency's non-pecuniary damages award. Here, Complainant has presented no medical evidence from a provider who treated her before October 2014, months after she was denied a reasonable accommodation and the effective date of her demotion. Moreover, the letter from her doctor does not address the severity, nature, or expected duration of Complainant's medical conditions. However, we agree with the Agency's final decision that Complainant has established her entitlement to non-pecuniary damages through her own statement and the witness statements.
Taking into account the evidence of non-pecuniary damages submitted by Complainant, as well as the amounts awarded in other cases, we find that the Agency's award of $15,000 in non-pecuniary compensatory damages was appropriate. In Massingill v. Dep't of Veterans Affairs, the Commission affirmed an award of $10,000 where the complainant's pre-existing depression and back pain were exacerbated by the agency's discriminatory reassignment and failure to engage in the interactive process. In Randle-Harris v. U.S. Postal Serv., EEOC Appeal No. 01A04789 (Mar. 6, 2001), req. for reconsideration denied, EEOC Request No. 05A10468 (June 19, 2001), the Commission awarded $15,000 in compensatory damages when there was evidence showing that the discrimination interfered with the complainant's relationships of both friends and family, and that complainant experienced a worsening of sickle cell anemia and depression after a disability-based termination. In Taber v. U.S. Postal Serv., the Commission again awarded $15,000 where the complainant established that there was a connection between the disability discrimination and the worsening of his condition but that the worsening condition was partially attributable to other factors as well. Finally, in Faustino M. v. U.S. Postal Serv., EEOC Appeal No. 0120161783, the Commission awarded $25,000 where the complainant's back pain worsened as a result of being denied a reasonable accommodation. Accordingly, we AFFIRM the Agency's award of $15,000 in non-pecuniary compensatory damages.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we AFFIRM the Agency's final decision on compensatory damages.
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 (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
03/22/18
__________________
Date
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.
2 The Agency did not originally accept this claim for investigation, but, in its final decision on liability, the Agency found that Complainant requested a reasonable accommodation on December 9, 2013, and that the Agency failed to engage in the interactive process.
3 According to the record, Complainant retired on May 1, 2014, prior to the effective date of her demotion.
4 The final decision stated that this amount would be calculated by the Agency's Human Resources Division.
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