U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Lexie T.,1 Complainant, v. Alejandro N. Mayorkas, Secretary, Department of Homeland Security (Transportation Security Administration), Agency. Appeal No. 2020000440 Agency No. HS-TSA-26509-2016 DECISION On September 17, 2019, 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 August 13, 2019, final decision concerning her equal employment opportunity (EEO) complaint alleging employment discrimination in violation of Title VII of the Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. § 2000e et seq., Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq., and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq. For the following reasons, the Commission MODIFIES the Agency’s final decision. ISSUE PRESENTED The issue presented is whether the Agency correctly determined the proper amount of compensatory damages Complainant is entitled to receive as a result of the Agency subjecting her to disability discrimination. 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. 2020000440 2 BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Supervisory Transportation Officer (TSO) at the Agency’s Phoenix-Mesa Gateway Airport facility in Mesa, Arizona. On July 21, 2016, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the bases of sex (female), disability (physical and mental), and age (DOB: 1964) when: 1. On May 21, 2016, a Human Resources (HR) Specialist did not submit Complainant’s reasonable accommodation request to the Reasonable Accommodation Office; and 2. On June 2, 2016, Complainant was terminated from federal service. 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). In accordance with Complainant’s request, the Agency issued a final decision pursuant to 29 C.F.R. § 1614.110(b). The Agency stated that Complainant proved that the Agency failed to accommodate her. Specifically, the Agency found that it had failed to properly consider the reasonable accommodation of reassignment before terminating Complainant’s employment. The Agency found, however, that Complainant failed to prove that the Agency subjected her to discrimination based on age, sex, or prior EEO activity. The Agency was ordered to take the following remedial actions: 1. Within sixty (60) days of the date of this decision, TSA shall provide 8 hours of EEO training to all Human Resources Staff and managers at Phoenix Sky Harbor International Airport (PHX), specifically focused on disability-based discrimination and reasonable accommodation and reprisal. 2. Within 30 days of the date of this decision, TSA shall conduct a search for a reassignment for which Complainant currently qualifies, pursuant to Department of Homeland Security (DHS) Instruction 259-01-002. If a position is identified by the Agency’s search, the position shall be offered to Complainant, as required by DHS Instruction 259-01-002. 3. If a reassignment is identified, and offered, and accepted by Complainant, TSA shall return Complainant’s employment record to Complainant’s original date of seniority (EOD 9/15/2002) and remove any and all records reflecting that Complainant’s employment was terminated on June 2, 2016. 2020000440 3 4. To the extent Complainant claims that her retirement annuity was adversely affected by the termination of her employment, Complainant will provide evidence of such to the Agency (in the context of her reinstatement), and the Agency will coordinate directly with Complainant to cure the adverse impact of its actions on Complainant’s retirement annuity. 5. TSA shall provide back pay to Complainant from the date of her termination up to the date the Agency completes the search for reassignment 6. Within 90 calendar days after this decision becomes final TSA will consider taking disciplinary action against local airport human resources staff and managers for the discrimination against Complainant. 7. Within thirty (30) days of the date of this decision, TSA shall post a notice of finding of discrimination to TSA employees PHX. Complainant was further directed to submit her request for compensatory damages and attorney’s fees, if any. Complainant’s Statement for Damages On June 28, 2019, Complainant submitted her request for compensatory damages along with witness statements. Complainant submitted documentation to the Agency requesting $1,047,648.00 for loss of her retirement account and penalty for early withdrawal, prior and future base pay, future bonuses, future overtime and holiday pay, and retirement annuity loss. The Agency responded on July 23, 2019, awarding Complainant $25,000.00 in non-pecuniary damages. Agency’s Decision on Compensatory Damages On August 13, 2019, the Agency issued its final decision regarding Complainant’s entitlement to compensatory damages, awarding Complainant $25,000.00 in non-pecuniary damages. In doing so, the Agency found that Complainant established a nexus between the Agency’s actions and Complainant’s emotional distress. Specifically, Complainant described feeling belittled, disrespected, stressed, anxious, and depressed following her removal. Complainant supplied documentation from two medical visits, which indicated that complainant had an increase in stress due to the loss of her job along with increased stress since 2012 due to physical injuries. As for Complainant’s request for reimbursement for the loss of her retirement account (Thrift Savings Plan (TSP)) and accompanying tax penalty, the Agency stated that Complainant did not present documentary evidence substantiating the date or amount of her TSP withdrawal or the associated penalty. 2020000440 4 The Agency further stated that Complainant did not demonstrate that she was entitled to compensation for the loss of future earnings because the finding of discrimination was because the Agency prematurely terminated Complainant’s employment before conducting a job search for a position to which she could have been reassigned and not the fact that she no longer occupied the TSO position. CONTENTIONS ON APPEAL On appeal, Complainant provides documentation indicating that the Internal Revenue Service required her to pay a 20% tax and penalty for an early withdrawal. Complainant states that the documentation shows that she had outstanding TSP loans, which were converted to early withdrawals when she could not repay the loans immediately upon her separation. She acknowledges that while she had been asymptomatic from 1999 to 2012, the removal action started a new episode of deep depression with anxiety, insomnia, fatigue, and feelings of hopelessness. Complainant requests an adjustment to her retirement contributions to reflect her 2017 and 2018 backpay and benefits calculations. Complainant asserts that the Agency requested an extension of 42 days beyond the 30-day period the FAD ordered the Agency to conduct a job search. Complainant avers that the Agency filled two positions, which she could have performed, during the delay. The Agency argues that the Commission should affirm its decision on compensatory damages. In support, the Agency highlights Complainants “extensive pre-existing physical and emotional problems.” The Agency adds that it denied Complainant’s request for past pecuniary losses related to the withdrawal from her TSP because Complainant failed to show that her withdrawal was caused by the Agency’s discriminatory action. The Agency further states that Complainant received reimbursement for her TSP contributions that she would have made through her back pay award; she withdrew her retirement accounts to pay basic living expenses; and she did not show proof, in the form of completed tax forms, that she paid a penalty for her early withdrawals. As for the denial of future pecuniary losses, the Agency argues that Complainant failed to show that the Agency’s failure to accommodate proximately caused her injury by negatively affecting or narrowing the range of future job opportunities available to her. 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”). 2020000440 5 Compensatory Damages When discrimination is found, the respondent Agency must provide the employee with a remedy that constitutes full, make-whole relief to restore the employee as nearly as possible to the position he or she would have occupied absent discrimination. Franks v. Bowman Transp. Co. 424 U.S. 747, 764 (1976); Albemarle Paper Co. v. Moody, 422 U.S. 405, 418-419 (1975). The Commission is authorized to award compensatory damages as part of the “make whole” relief for intentional discrimination. 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); Enforcement Guidance on 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 (Enforcement Guidance on Compensatory and Punitive Damages). 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. Enforcement Guidance on Compensatory and Punitive Damages 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, supra. Pecuniary Damages Pecuniary losses are out-of-pocket expenses that are incurred as a result of the employer's unlawful action, including job-hunting expenses, moving expenses, medical expenses, psychiatric expenses, physical therapy expenses, and other quantifiable out-of-pocket expenses. 2020000440 6 Enforcement Guidance on Compensatory and Punitive Damages at 14. Past pecuniary losses are losses incurred prior to the resolution of a complaint through a finding of discrimination, the issuance of a full-relief offer, or a voluntary settlement. Id. at 8-9. Future pecuniary losses are losses that are likely to occur after resolution of a complaint. Id. at 9. For claims seeking pecuniary damages, such objective evidence should include documentation of out-of-pocket expenses for all actual costs and an explanation of the expense, e.g., medical and psychological billings, other costs associated with the injury caused by the agency's actions, and an explanation for the expenditure. Id. at 9. Complainant contends that she was required to withdraw her TSP funds early due to the termination. As a result, she claims she was required to pay taxes on the money. Complainant argues that she should be reimbursed the tax, as well as the money she was required to withdraw from her account. The Commission has no precedent for requiring a complainant to be reimbursed for the amount withdrawn from a TSP account during the period of unemployment, in order to grant “make whole” relief. Gause v. Soc. Sec. Admin., EEOC Appeal No. 01972427 (Mar. 8, 2000) (stating that borrowed money used for expenses during a complainant's period of unemployment is covered by an award of backpay and not subject to reimbursement through compensatory damages). As such, we find that Complainant is not entitled to reimbursement for the sums which she withdrew from her TSP account as pecuniary damages.2 The Commission, however, has held that an award of pecuniary damages is proper to compensate a complainant for tax penalties which result from early withdrawals from the TSP. Gonzales v. U.S. Postal Serv., EEOC Appeal No. 0720080027 (May 30, 2008). On appeal, Complainant provided documentation that noted she withdrew $34,887.34 from her TSP account, and that $11,977.47 had been withheld as taxes. The $11,977.47 penalty amounts to an out-of-pocket expense that Complainant incurred as a result of the discrimination, and Complainant is entitled to recover this amount. As such, we find that Complainant is entitled to a payment of $11,977.47 in order to cover the tax penalties of an early TSP withdrawal. Non-pecuniary Damages Non-pecuniary 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 Enforcement Guidance on Compensatory and Punitive Damages at II.A.2. There is no precise formula for determining the amount of damages for non-pecuniary losses except that the award should reflect the nature and severity of the harm and the duration or expected duration of the harm. See Loving v. Dep't of the Treasury, EEOC Appeal No. 01955789 (Aug. 29, 1997). 2 We note that Complainant was awarded backpay, which includes retroactive tax-deferred contributions to Complainant's TSP account along with any earnings which would have accrued during the relevant period. A review of the record indicates that the Agency included $2,746.26 for TSP contributions in Complainant’s backpay award. On appeal, Complainant does not contest the backpay award. 2020000440 7 The Commission notes that non-pecuniary compensatory damages are designed to remedy the harm caused by the discriminatory event rather than 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). Based on the review of the evidence in light of Commission cases regarding non-pecuniary compensatory damages awarded for emotional harm, the Commission finds that the Agency's award of $25,000.00 is insufficient to remedy the harm experienced by Complainant. The record reflects that shortly after receiving the Notice of Proposed Removal, Complainant presented to her primary care physician with complaints of increased stress, depression, and anxiety because of her unexpected termination. Complainant asserted that her removal started a new episode of anxious and depressive symptoms with insomnia, fatigue, and feelings of hopelessness. Additionally, Complainant’s wife and father submitted statements corroborating Complainant’s reports of increased symptoms. Complainant’s wife averred that she developed anxiety as a result of Complainant’s condition and their relationship suffered. The Commission finds that an award of $60,000.00 is more appropriate given the nature and duration of the harm. Complainant v. Dep't of Transp., EEOC Appeal No. 0720140022 (Sept. 16, 2015) ($60,000 awarded where complainant suffered sleeplessness, anxiety, stress, and depression, as well as an exacerbation of her existing symptoms, as a result of the Agency's discriminatory actions); Lula N. v. Dep't of Veterans Affairs, EEOC Appeal No. 0120113346 (Mar. 21, 2014) ($65,000 in nonpecuniary damages where complainant acknowledged that she experienced health problems prior to the discrimination, but provided documentation indicating that her health worsened due to discrimination; complainant experienced anxiousness, depression, crying, headaches, insomnia, and high blood pressure); Irvin W. v. Dep't of State, EEOC Appeal No. 0120141773 (Oct. 28, 2016) ($60,000 awarded where complainant experienced anxiety, irritability, headaches, social withdrawal, and exacerbation of pre-existing conditions). The Commission finds that this amount considers the severity of the harm suffered and is consistent with prior Commission precedent. Finally, the Commission finds this award is not “monstrously excessive” standing alone, is not the product of passion or prejudice, and is consistent with the amount awarded in similar cases. See Jackson v. U.S. Postal Serv., EEOC Appeal No. 01972555 (Apr. 15, 1999) (citing Cygnar v. City of Chicago, 865 F. 2d 827, 848 (7th Cir. 1989)). Therefore, we shall modify the Agency's final order. CONCLUSION Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we MODIFY the Agency’s final decision on compensatory damages. 2020000440 8 ORDER The Agency, to the extent it has not already so, shall within 30 calendar days of the date this decision is issued, pay Complainant $11,977.47 for pecuniary damages and $60,000.00 in non- pecuniary damages. 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 that the corrective action has been implemented. IMPLEMENTATION OF THE COMMISSION’S DECISION (K0719) 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. Failure by an agency to either file a compliance report or implement any of the orders set forth in this decision, without good cause shown, may result in the referral of this matter to the Office of Special Counsel pursuant to 29 C.F.R. § 1614.503(f) for enforcement by that agency. STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0920) The Commission may, in its discretion, reconsider this appellate decision if Complainant or the Agency submits a written request that contains arguments or evidence that tend to establish that: 1. The appellate decision involved a clearly erroneous interpretation of material fact or law; or 2020000440 9 2. The appellate decision will have a substantial impact on the policies, practices, or operations of the agency. Requests for reconsideration must be filed with EEOC’s Office of Federal Operations (OFO) within thirty (30) calendar days of receipt of this decision. If the party requesting reconsideration elects to file a statement or brief in support of the request, that statement or brief must be filed together with the request for reconsideration. A party shall have twenty (20) calendar days from receipt of another party’s request for reconsideration within 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). Complainant should submit his or her request for reconsideration, and any statement or brief in support of his or her request, via the EEOC Public Portal, which can be found at https://publicportal.eeoc.gov/Portal/Login.aspx Alternatively, Complainant can submit his or her request and arguments to the Director, Office of Federal Operations, Equal Employment Opportunity Commission, via regular mail addressed to P.O. Box 77960, Washington, DC 20013, or by certified mail addressed to 131 M Street, NE, Washington, DC 20507. In the absence of a legible postmark, a complainant’s request to reconsider shall be deemed timely filed if OFO receives it by mail within five days of the expiration of the applicable filing period. See 29 C.F.R. § 1614.604. An agency’s request for reconsideration must be submitted in digital format via the EEOC’s Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). Either party’s request and/or statement or brief in opposition must also include proof of service on the other party, unless Complainant files his or her request via the EEOC Public Portal, in which case no proof of service is required. Failure to file within the 30-day time period will result in dismissal of the party’s request for reconsideration as untimely, unless extenuating circumstances prevented the timely filing of the request. Any supporting documentation must be submitted together with the 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. 2020000440 10 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. 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 July 15, 2021 Date
