0120093196
09-13-2012
Robert A. Spence, Complainant, v. Gregory B. Jaczko, Chairman, Nuclear Regulatory Commission, Agency.
Robert A. Spence,
Complainant,
v.
Gregory B. Jaczko,
Chairman,
Nuclear Regulatory Commission,
Agency.
Appeal No. 0120093196
Agency No. 99-06A
DECISION
On July 14, 2009, Complainant filed an appeal from the Agency's June 12, 2009 final decision concerning compensatory damages awarded in an equal employment opportunity (EEO) complaint alleging employment discrimination in violation of Section 501 of the Rehabilitation Act of 1973, as amended, 29 U.S.C. � 791 et seq. For the following reasons, the Commission AFFIRMS the Agency's final decision.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Reactor Systems Engineer in Rockville, Maryland. On April 29, 1999, Complainant filed an EEO complaint wherein he claimed that the Agency discriminated against him on the basis of his disability. Complainant claimed that management officials created a hostile work environment between July 1997 and March 2000, by failing to provide him with reasonable accommodation. 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 EEOC Administrative Judge (AJ). Upon not receiving a response from Complainant, the Agency issued a final decision pursuant to 29 C.F.R. � 1614.110(b). The Agency determined that Complainant had been discriminated against with regard to the Agency unreasonably delaying the reconfiguration of Complainant's workspace. The Agency determined that Complainant had not been discriminated against with respect to other allegations set forth in his complaint.
On appeal, in Robert A. Spence v. Nuclear Regulatory Commission, EEOC Appeal No. 0120041082 (August 2, 2007), the Commission affirmed the Agency's finding of discrimination with regard to the aforementioned claim. The Commission also reversed the final decision and found discrimination as follows:
1. From July 1997 to January 1999, the Agency did not allow Complainant to make daily use of the Health Unit for thirty minute periods to lie down and alleviate back pain.
2. The Agency failed to approve Complainant's request for permanent work at home between February 8, 1999, and March 28, 2001.
The Commission also found that the Agency did not demonstrate that it made a good faith effort to provide Complainant with reasonable accommodation. The Commission affirmed the Agency's determination that it did not violate the Rehabilitation Act with regard to the remaining allegations of the complaint. Both parties requested reconsideration of the Commission's decision. In Robert A. Spence v. Nuclear Regulatory Commission, EEOC Request No. 0520070907 (July 9, 2008), the Commission denied both parties' requests for reconsideration. The Commission ordered the Agency to investigate Complainant's entitlement to compensatory damages. The Commission also stated that Complainant was entitled to an award of reasonable attorney's fees incurred in the processing of the complaint.
After seeking evidence from Complainant, the Agency determined in its final decision that Complainant was entitled to $100,000 in compensatory damages and equitable relief. Final Agency Decision at 22. Complainant had requested an award of $300,000 for non-pecuniary losses. Id. at 6. According to Complainant, this claim was for 32 years of severe pain and suffering due to unnecessary workplace injuries, mental anguish, injury to his character and reputation, inconvenience and loss of enjoyment of life, in addition to the financial losses those injuries precipitated. Id. The Agency determined that Complainant had a pre-existing condition with regard to his cervical and lumbar spine, which condition would have worsened absent the Agency's actions. Id. at 9. The Agency noted that the Public Health Service physician's report concluded that the Agency's actions contributed only to short-term aggravation of Complainant's medical condition and may have had a negligible contribution to the overall aggravation of his condition, and that the normal progression of his degenerative condition, compounded by a diagnosis of obesity, was responsible for the worsening of his condition. Id. at 9-10. However, the Agency recognized that its failure to reasonably accommodate Complainant contributed to the emotional harm, short-term physical pain, emotional pain, inconvenience and loss of enjoyment of life that he experienced between July 1997 and March 2001. Id. at 10. The Agency determined that an award in the range of $75,000 -$100,000 for non-pecuniary damages was appropriate. Id. at 11.
Complainant claimed that the Agency's failure to provide reasonable accommodation was responsible for his workplace injuries between September and December 1996, and January 2001 and as a result he sustained permanent harm that led to his disability retirement. Id. at 12. The Agency stated that Complainant failed to demonstrate that such permanent harm was caused, directly or proximately, by the Agency's failure to accommodate him between July 1997 and March 2001. Id. The Agency noted that the Commission found that Complainant was not an individual with a disability prior to July 1997. Id. The Agency rejected Complainant's contention that his 1999 and January 3, 2001 accidents, disability retirement in 2002, or February 2003 stroke were directly or proximately caused by any of the actions found to be discriminatory. Id. As to Complainant's January 3, 2001 accident, Complainant argued that had the Agency granted his work at home request, he would not have been in his cubicle on January 3, 2001, and would not have sustained the relevant injury. Id. at 13. Complainant described the accident as his orthopedic chair tipping over resulting in the dislocation of his neck. Complainant's Appeal, Exhibit 98, Page 1. Complainant states that the accident was foreseeable and could have been prevented had the Agency conducted an accident review of his April 1999 workplace injuries since the tilt forward mechanism in his chair was involved in both incidents. Id. at 1-2. The Agency stated that the cause of the January 3, 2001, accident was a defectively designed chair that had been selected by Complainant and was apparently the same model that he used in his home office. Final Agency Decision at 14.
With regard to Complainant's disability retirement, the Agency stated that Complainant did not produce any affidavit or report from a physician that stated his disability retirement was caused by the Agency's failure to accommodate him in the three instances cited by the Commission. Id. at 16. With respect to the stroke that Complainant suffered in 2003, Complainant contended that if not for the Agency's actions, he would not have needed to take Vioxx, which increased his risk of stroke. Id. at 17. The Agency determined that there is no medical evidence in the record to suggest that either the Agency's actions, as opposed to pain arising from Complainant's condition, were the proximate or direct cause of his need to take Vioxx, or that Vioxx was the proximate or direct cause of his stroke. Id.
As to Complainant's claim for damages due to injury to his character and reputation, the Agency noted that Complainant stated that his supervisor began to improperly demand medical certification for his sick leave beginning in 1991. Id. at 18-19. Complainant also claimed that the Agency improperly interfered with his OWCP claims causing the OWCP to have inaccurate information leading to a misdiagnosis of his condition. Id. at 19. The Agency determined that the demand for medical certification was outside the scope of the present inquiry as it began in 1991, and was not part of the denial of reasonable accommodation that occurred between July 1997 and March 2001. Id. In terms of the alleged improper interference with Complainant's OWCP claims, the Agency determined that the EEO process may not be utilized to launch a collateral attack on an OWCP proceeding. Id.
As for past pecuniary losses, Complainant claimed $6,158.40 for nonreimbursed medical expenses and $737.55 for nonreimbursed medication copayments, totaling $6,895.95. Id. at 21. Complainant also claimed $9,268.19 in lost wages from 1997 to his disability retirement date of November 16, 2002. Id. Additionally, Complainant claimed lost wages for May 17, 2002 to July 9, 2008, the date of the denial of his request for reconsideration. Id. With regard to the claim for $6,895.95 in nonreimbursed medical expenses, the Agency said that although the medical expenses are well documented, Complainant provided no evidence or explanation as to how these expenses were directly or proximately caused by the Agency's failure to reasonably accommodate him between 1997 and 2001. Id. at 26-27. The Agency denied these expenses, noting that most of them were incurred after the period in which discrimination occurred. Id. at 27. In terms of the medication copayments, the Agency awarded $86.65, which it concluded was half the amount of the expenses that were incurred during the period of discrimination. Id. The Agency indicated that the reduced award reflected its conclusion that the denial of reasonable accommodation did not cause Complainant to incur expenses for medication beyond those that would have been required to treat his condition if the agency had accommodated his requests. Id.
With respect to Complainant's claim for $9,268.19 in lost wages between 1997 and 2001, the Agency noted that the claim is for compensation for leave without pay that Complainant used during those years for which he was not compensated by the OWCP. Id. at 22. The Agency stated that the OWCP claim was related to an injury that Complainant suffered on September 15, 1996. Id. The Agency reasoned that since its denial of reasonable accommodation did not begin until July 1997, the denial of reasonable accommodation could not have caused the September 1996 injury or any expenses flowing from that injury. Id. at 22-23. The Agency awarded $1,972.08 for lost wages between 1997 and 2001 caused by its failure to reasonably accommodate Complainant. Id. at 26. Additionally, with regard to past pecuniary expenses, the Agency noted that Complainant claimed $471,489 in lost wages between 2002 and July 2008. Id. at 27. The Agency denied this claim considering it to be a constructive discharge claim. Id. at 28. The Agency stated that the Commission rejected the argument that the Agency's failure to accommodate Complainant's disability caused his back condition to worsen resulting in his disability retirement. Id. The Agency stated that the disability retirement was most likely caused by Complainant's worsening condition, other medical problems, and/or by accidents unrelated to the reasonable accommodations at issue. Id. The Agency also denied Complainant's claim for $242,962 for lost workers' compensation benefits that Complainant believed he was entitled to and would have received if not for the Agency's actions during the OWCP proceedings. Id. at 28-29. The Agency determined that this is not a cognizable claim for compensatory damages in this proceeding. Id. at 29.
Complainant also claims future pecuniary losses of $512,141.00 in lost future earnings, retirement and survivorship benefits and $1,026,296 in lost future compensation from the OWCP due to Agency interference with his OWCP claim. Id. As for the former claim, the Agency rejected it stating that the medical evidence supports the conclusion that worsening of Complainant's condition would have occurred absent Agency action. Id. at 30. With respect to the latter claim, the Agency determined that this OWCP-related matter is not a cognizable claim in this proceeding. Id. Overall, the Agency reasoned that Complainant is not entitled to future pecuniary losses given that the discriminatory actions occurred between 1997 and 2001. Id.
CONTENTIONS ON APPEAL
On appeal, Complainant contends that a causal relationship exists between the Agency's discrimination and his workplace injuries, disability retirement and continuing pain and suffering. Complainant's Appeal, Exhibit 89 at 15. Complainant maintains that had he been permitted to work at home in February 1999, as his physicians prescribed, he would not have been injured in Agency offices in April 1999 and January 2001. Id. Complainant states that those accidents caused three herniated lumbar discs and two cervical herniated discs with nerve impingement, cervical spinal stenosis, thoracic outlet syndrome and permanent impairment to his lower and upper extremities. Id. According to Complainant, the malfunctioning of his chair and his January 3, 2001, injuries were foreseeable. Id., Exhibit 98 at 27. Complainant argues that his Branch Chief was aware of the chair's malfunctioning tilt forward mechanism based on his injuries in 1999. Id. Complainant contends that the Agency improperly failed to conduct an independent review of his 1999 accident. Id. Complainant disputes the Agency's position that he would have been at equal risk working at home given that he had the same model chair at home. Id. at 30. According to Complainant, he rearranged his den at home so that the chair could not have tipped over as it did in his office cubicle on January 3, 2001. Id. at 32. Complainant states that in response to the Agency's review of the January accident, he disengaged his den chair's tilt forward capability and replaced the castor base with a wider diameter base. Id. Complainant argues that had he not been injured in the office in 2001, he would not have aggravated his cervical condition working overtime in February 2002 or had to retire on disability. Id., Exhibit 89 at 48.
Complainant maintains that the pain from his injuries caused him to take Vioxx and that this caused him to suffer a stroke in February 2003 after nineteen months of use. Id. at 28-29. Complainant argues that the Agency's failure to accommodate him from July 1997 to March 2001 aggravated his back pain on a daily basis for over three and a half years. Id. at 21. Complainant contends that the discrimination he suffered will cause him mental anguish for the rest of his life. Id. at 43. Complainant states that when he uses a walker to get of bed each morning, the back pain he has reminds him of the discrimination. Id. Complainant also argues that the Agency interfered with his OWCP claim when the OHR Labor Relations Chief made adverse comments on his OWCP CA-7 forms that implied he submitted a fraudulent OWCP claim. Id. In terms of his physical limitations, Complainant states that he cannot lift more than ten pounds, cannot do housework, has limited neck motion, has muscle fatigue in his left hand and wrist due to thoracic outlet syndrome, can no longer exercise, is unable to drive and when experiencing flare-ups is unable to get out of bed. Id. at 58-59.
Complainant argues that the Agency continued to discriminate against him after he was allowed to work from home beginning in March 2001 by withholding prescribed reasonable accommodation, placing limits on his work at home plan, setting deadlines that necessitated overtime, and increasing his workload by 50% with a database assignment that was beyond what he could physically accomplish in a forty hour workweek. Id. at 63. Complainant maintains that 32 hours of work over a three day period in February 2002 permanently aggravated his cervical condition and forced him to apply for disability retirement. Id. Complainant claims there was a permanent aggravation of the spinal injuries he sustained at work, which were casually related to the discrimination he experienced from 1996 to 2002. Id.
In response to the claim for compensatory damages, the Agency asserts that although Complainant seeks compensatory damages for incidents outside the timeframe of the discriminatory actions, these incidents were found not to be discriminatory and are not grounds for an award. Agency's Response at 9. With regard to that portion of Complainant's compensatory damages claim relating to lost OWCP pay benefits, the Agency asserts that these damage claims are outside the scope of the Commission's previous decision as these OWCP-related claims do not state an actionable claim of discrimination. Id. The Agency emphasizes that Complainant experienced significant pain from a back condition that existed prior to the discriminatory actions. Id. at 13. According to the Agency, Complainant's physician traced his condition back to a 1991 accident, documenting significant pain in 1992-93, requiring medical treatment, physical therapy and medication, imposing multiple limitations on his lifestyle including lost enjoyment of life, inconvenience, and impact on major life activities. Id. at 14. The Agency states that other medical evidence indicates that Complainant has a chronic history of lumbar disk pain since 1969 and that problems with his office chair in 1996 aggravated his lumbar condition. Id. at 15. The Agency argues that in May 1997, Complainant informed his physician that his back pain was constant on a daily basis due to degenerative disc disease. Id. at 15. The Agency notes that the Public Health Service's physician's report concluded that the Agency's actions contributed only to short-term aggravation of Complainant's medical condition and may have had negligible contribution to the overall aggravation of his condition, and that the normal progression of his degenerative condition, compounded by a diagnosis of obesity, was responsible for the worsening of his condition. Id. at 16. The Agency maintains that the record supports the conclusion that Complainant had a pre-existing condition that would have worsened in the same or similar manner absent the Agency's actions at issue. Id.
The Agency notes that Complainant is requesting back pay from approximately May 2002 to July 2008, and front pay from August 2008 to his projected normal retirement date in November 2028. Id. at 18. The Agency maintains that Complainant is not entitled to any form of future pay compensation or alleged lost retirement benefits occurring after his disability retirement in 2002. Id. at 17. According to the Agency, Complainant never filed a constructive discharge claim, and to the extent he is now raising such a claim, the Commission stated in our prior decision that we do not find sufficient evidence that Complainant's resignation was due to intolerable working conditions. Id. The Agency further asserts that Complainant has miscalculated and mischaracterized damages that he claims he suffered. Id. at 20. The Agency states that the alleged damages are future pecuniary losses for loss of future earning capacity. Id. The Agency argues that back pay and front pay are only available as remedies to individuals who are able to work. Id. at 18. The Agency notes that Complainant acknowledged that he has been physically incapable of working since May 2002 and took a disability retirement in November 2002. Id.
With respect to its assertion that Complainant has miscalculated his retirement damages, the Agency states that any calculation of employer contributions to the Federal Employees Retirement System (FERS) has to calculate a contribution offset based upon the FERS disability retirement Complainant is receiving. Id. at 20. The Agency rejects Complainant's claim for damages for his spouse's alleged future loss and spousal survivor benefits from both FERS and Social Security. Id. The Agency states that spousal damages are not permitted under the 1991 Civil Rights Act as only federal sector complainants may receive compensatory damages. Id. With respect to Complainant's claim for $1,012,296 in lost future compensation from the OWCP, the Agency states that this damage claim is outside the scope of the Commission's previous decision and constitutes a collateral attack on another proceeding. Id. at 21. The Agency maintains that its award of $100,000 in compensatory damages and equitable relief is appropriate. Id. at 22-23.
ANALYSIS AND FINDINGS
In this case, the Agency awarded Complainant $100,000 in compensatory damages and equitable relief. To receive an award of compensatory damages, a Complainant must demonstrate that he has been harmed as a result of the Agency's discriminatory action, and establish the extent, nature, severity and the duration or expected duration of the harm. Rivera v. Department of the Navy, EEOC Appeal No. 01934157 (July 22, 1994), req. for reconsid. den'd, EEOC Request No. 05940927 (December 11, 1995); Compensatory and Punitive Damages Available Under Section 102 of the Civil Rights Act of 1991, (Enforcement Guidance) (EEOC Notice No. 915.002 (July 14, 1992), at 11-12, 14.
We note that compensatory damages may be awarded for the past pecuniary losses, future pecuniary losses and non-pecuniary losses which are directly and proximately caused by the Agency's discriminatory conduct. Enforcement Guidance at 8. Objective evidence of compensatory damages include statements from the Complainant concerning his or her emotional pain or suffering, inconvenience, mental anguish, loss of enjoyment of life, injury 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, health care providers, or other counselors (including clergy) could address the outward manifestations of 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. Lawrence v. United States Postal Service, EEOC Appeal No. 01952288 (April 18, 1996) (citing Carle v. Department of the Navy, EEOC Appeal No. 01922369 (January 5, 1993)).
Compensatory damages may be awarded for pecuniary losses that are directly or proximately caused by the Agency's discriminatory conduct. 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. Id. Past pecuniary expenses are losses incurred prior to the resolution of a complaint through a finding of discrimination, or a voluntary settlement. Future pecuniary expenses are losses that are likely to occur after resolution of a complaint.
With respect to Complainant's claim for past pecuniary expenses of $9,268.19 in lost wages between 1997 and 2001, we agree with the Agency that much of the expenses sought by Complainant were not shown to be proximately caused by the Agency's failure to reasonably accommodate him between 1997 and 2001. We find that the Agency accurately analyzed the various expenses requested by Complainant and issued an appropriate award of $1,972.08 for lost wages between 1997 and 2001 that were caused by the Agency's failure to reasonably accommodate him. The dates for which the Agency correctly compensated Complainant were those where Complainant could have worked had the Agency granted his work at home request. The Agency's award of $86.65 for medication expenses is appropriate given that most of these expenses were incurred after the period of discrimination and also because the record does not contain medical evidence that proves the denial of reasonable accommodation caused Complainant to incur medication expenses beyond those he would have sustained had no discrimination occurred. As for Complainant's claim for $471,489 in lost wages between 2002 and July 2008, we find that the medical evidence does not establish that the Agency's discriminatory actions proximately caused Complainant's disability retirement. It is clear that Complainant was no longer able to work, but the record indicates that the progressive, worsening nature of a pre-existing degenerative disc disease was the reason for his disability retirement. The disability retirement would have occurred absent the instances of the Agency's failure to reasonably accommodate Complainant.
Complainant requests compensation for future pecuniary losses in terms of lost future earnings, retirement benefits and survivorship benefits. An award for the loss of future earning potential considers the effect that Complainant's injury will have on his ability in the future to earn a salary comparable with what he earned before the injury. Brinkley v. United States Postal Service, EEOC Request No. 05980429 (August 12,1999) citing McKnight v. General Motors Corp., 973 F.2d 1366, 1370 (7th Cir. 1992). Where Complainant has shown that his future earning power has been diminished as a result of the Agency's discrimination, the Commission has awarded future pecuniary damages for the loss of future earning capacity. See Morrison v. United States Postal Service, EEOC Appeal No. 07A50003 (April 18, 2006) citing Brinkley, supra; Hernandez v. United States Postal Service, EEOC Appeal No. 07A30005 (July 16, 2004). This claim is premised on the discriminatory actions being the cause of Complainant's disability retirement in November 2002. However, the record does not support the contention that the three discriminatory incidents of failure to reasonably accommodate Complainant caused the worsening of Complainant's condition to the degree that a disability retirement was the clear result. Medical evidence supports the conclusion that Complainant's degenerative disc condition would have worsened absent the Agency's discriminatory conduct. Further, with regard to the claim for survivorship benefits for Complainant's wife from FERS and Social Security, these damages are not permitted. The Commission has previously held that compensatory damages are available to Federal sector complainants under the 1991 Civil Rights Act. See Jackson v. United States Postal Service, EEOC Appeal 01923399 (November 12, 1992), request to reopen denied, EEOC Request No. 05930306 (February 1, 1993).
With regard to Complainant's claim for lost OWCP pay benefits in terms of past and future pecuniary losses, we find that this claim is not cognizable within this forum and constitutes a collateral attack on the OWCP process. We note that the proper forum for obtaining workers' compensation benefits is the OWCP process, and that, as such, OWCP has sole jurisdiction over the award of such benefits. We further note that the purpose of compensatory damages under the Rehabilitation Act is to remedy the effects of discrimination, not to circumvent the OWCP process. Therefore, Complainant's OWCP-related claims are denied.
An award of non-pecuniary compensatory damages should reflect the extent to which the Agency's discriminatory action directly or proximately caused the harm as well as extent to which other factors also caused the harm. Johnson v. Department of the Interior, EEOC Appeal No. 01961812 (June 18, 1998). It is the Complainant's burden to provide objective evidence in support of his claim and proof linking the damages to the alleged discrimination. Papas v. United States Postal Service, EEOC Appeal No. 01930547 (March 17, 1994); Mints v. Department of the Navy, EEOC Appeal No. 01933956 (November 24, 1993). The Commission recognizes that not all harms are amenable to precise quantification; the burden of limiting the remedy, however, rests with the employer. Chow v. Department of the Army, EEOC Appeal No. 01981308 (February 12, 2001). Moreover, the amount of an award should not be "monstrously excessive" standing alone, should not be the product of passion or prejudice and should be consistent with the amount awarded in similar cases. Cygnar v. Chicago, 865 F.2d 827, 848 (7th Cir. 1989); EEOC v. A1C Sec. Investigations, Ltd., 823 F. Supp. 571, 574 (N.D. Ill. 1993).
In this case, the discriminatory actions against Complainant involved denying him use of the Health Unit for bed rest between July 1997 and January 1999; denying him a flexible work at home accommodation between February 8, 1999 and March 28, 2001; and the seven month delay beginning in January 2000, in reconfiguring Complainant's workspace. Complainant states that he suffered three lumbar herniated discs and two cervical herniated discs with impingement, cervical spinal stenosis, thoracic outlet syndrome and permanent impairment to his upper and lower extremities. Complainant lists a variety of medications that he takes for his chronic pain. Complainant states that he will experience severe pain and mental anguish for the rest of his life. Complainant further claims that the stroke he suffered was due to Vioxx that he needed to take due to pain that is linked to the Agency's discriminatory actions. Complainant further describes how he is limited in his lifestyle. Complainant states that he is unable to exercise, cannot lift more than ten pounds, has experienced a loss of enjoyment of life, inconvenience and an inability to perform household chores.
Upon review of the record, we find that the Agency's total award of $100,000 is appropriate. It is clear that Complainant has suffered significantly due to his physical condition and will likely continue to do so for the foreseeable future. However, we observe that much of the damages claimed have not been shown to be proximately caused by the denial of reasonable accommodation. Complainant attempts to justify the magnitude of his damage claims by including Agency actions that occurred both before and after the timeframe of the discrimination. Our previous decision made it clear that there were three acts of discrimination and they occurred within a specified time period. Therefore, an attempt to argue for a damages award for events that occurred outside that timeframe is clearly unwarranted, devoid of merit and is rejected. It is evident though that the Agency's actions contributed to short-term aggravation of Complainant's painful back condition. The Agency failed to provide Complainant with a work at home accommodation for more than two years after it had received from Complainant medical documentation to support his request to work at home. This unreasonable delay and the Agency's failure during the same period of time to take measures that could have prevented Complainant's January 3, 2001, cubicle chair accident are primary events that contributed to significant short-term pain and suffering for Complainant. However, the medical evidence indicates that his degenerative back condition was preexisting, exacerbated by his obesity and was likely to worsen absent the Agency's discriminatory conduct. Further, we decline to draw the conclusion that Complainant's stroke was proximately caused by the Agency's failure to reasonably accommodate Complainant, even if the stroke was related to his use of Vioxx for pain. There is insufficient evidence that most of Complainant's physical and emotional suffering is attributable to the failure to provide him with reasonable accommodation.
Upon weighing the Agency's actions that were discriminatory, their overall contribution to, at a minimum, a short-term decline in Complainant's physical condition and the length of time that each act of discrimination occurred, we find that the Agency's overall award of $100,000 is proper. Accordingly, we find that an award of $100,000 is warranted in this case. Our award takes into account the severity of the harm suffered, and is consistent with prior Commission precedent. See Champion v. United States Postal Service, EEEOC Appeal No. 0720090037 (March 10, 2010) ($125,000 awarded in non-pecuniary damages where Complainant suffered depression, anxiety, sleeplessness and required psychiatric treatment as a result of ongoing harassment for two years); Brown-Fleming v. Department of Justice, EEOC Appeal No. 0120082667 (October 28, 2010) ($150,000 in non-pecuniary damages where Complainant experienced anxiety, stress, insomnia, difficulty concentrating, disassociation, social isolation, damage to her professional reputation, withdrawal from relationships and nightmares because of retaliation).
Our previous decision ordered the Agency to process a submission from Complainant for attorney's fees. The Agency awarded Complainant attorney's fees and costs, with interest, in the amount of $52,880.94 for the period of 1999 through July 25, 2008. On July 3, 2009, Complainant submitted, a claim for an additional $36,546.95 in attorney's fees and costs for the period of August 5, 2008 to July 3, 2009. The Agency responded that it would address the issue of attorney's fees and costs after the Commission issues a decision on compensatory damages, so the Agency could then determine whether Complainant was a prevailing or substantially prevailing party on compensatory damages. Complainant subsequently filed a Petition for Enforcement with the Commission with regard to the Agency's decision to wait for our decision in the instant matter before processing the attorney's fees request. The Agency filed a Reply to Complainant's Petition. In light of the fact that no final agency decision has been issued on the attorney's fees request, we find that at this juncture this matter is not properly before the Commission for review.
CONCLUSION
The Agency's final decision issuing an award of $100,000 to Complainant is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0610)
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 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 77960, Washington, DC 20013. 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.
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 (Z0610)
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 from the Court that the Court appoint an attorney to represent you and that the Court also 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 with the Court 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:
______________________________
Carlton M. Hadden, Director
Office Of Federal Operations
September 13, 2012
__________________
Date
2
0120093196
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120093196