U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 , a/k/a, Billy B.,1 Complainant, v. Robert McDonald, Secretary, Department of Veterans Affairs (Veterans Health Administration), Agency. Appeal No. 0120132680 Agency No. 200H03102011102919 DECISION Complainant filed an appeal from the Agency's June 21, 2013 Final Decision (Final Decision #2) concerning compensatory damages arising from his 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 regarding compensatory damages. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Veterans Services Representative (VSR) at the Agency's Veterans Affairs Regional Office facility in Philadelphia, Pennsylvania. On June 6, 2011, Complainant filed an EEO complaint alleging that the Agency discriminated against him on the bases of race (White), sex (male), disability (post traumatic stress disorder(PTSD)), age (51), and reprisal for prior protected EEO activity under Title VII of the Civil Rights Act of 1964. In a Final Decision dated August 10, 2012, the Agency found that Complainant was discriminated against on the basis of disability when: A. Complainant was denied a reasonable accommodation. B. Complainant was constructively discharged when he was removed from employment effective July 20, 2011.2 As a result of finding discrimination, the Agency awarded Complainant reinstatement, compensatory damages, attorney's fees and costs, together with other relief including training, discipline and/or reassignment of the responsible management officials, and posting of a notice at the appropriate facility that discrimination occurred With respect to compensatory damages, the Agency found the Agency is liable for losses caused by the discrimination which occurred in this case. The Agency noted that in his complaint, Complainant requested a "financial settlement." In its Final Decision regarding liability, the Agency construes this request for a "financial settlement" as a request for compensatory damages. The Agency found, however, that the record did not contain sufficient evidence from which it could render a determination regarding the amount of pecuniary or nonpecuniary losses due to the discrimination. The Agency therefore found it necessary to conduct a supplemental investigation and to issue an additional report on the issue of compensatory damages.3 In EEOC Appeal No. 0120123472, Complainant appealed the Agency's Final Decision regarding liability (Final Decision #1). By letter dated October 4, 2012, Complainant withdrew his appeal and the Commission administratively closed that appeal in accordance with Complainant's request on December 21, 2012. Thereafter, the Agency issued its Final Decision regarding compensatory damages (Final Decision #2), dated June 21, 2013. In Final Decision #2, the Agency denied Complainant's request for front pay in the amount of $990,000. The Agency found that Complainant received a letter dated September 11, 2012, reinstating him to the position of Veterans Services Representative, effective July 20, 2011. The Agency requested that Complainant provide information regarding his need for reasonable accommodations and for information regarding his outside, interim earnings for the purpose of calculating Complainant's award of backpay and benefits as directed by Final Decision #1. In Final Decision #2, the Agency found that Complainant failed to report for work as directed, failed to provide the necessary information regarding his need for accommodations, and failed to provide the report of outside earnings. In light of Complainant's refusal to provide the requested information, the Agency concluded that reinstatement was "not an impossibility," and, therefore, the Agency denied Complainant's claim for $990,000 for front pay In summary, the Agency awarded Complainant the following compensatory relief in Final Agency Decision #2: Past Pecuniary losses: Medical Expenses Moving Expenses Costs $1,470.00 314.40 313.56 Future Pecuniary losses: Mental Health Medical costs $ 2,640.00 Nonpecuniary losses (pain and suffering): $85,000.00 Total: $89,737.96 The instant appeal followed. By letter dated November 14, 2013, Complainant clarifies that the instant appeal challenges the Agency's award of nonpecuniary, compensatory damages ($85,000), and requests that the Commission increase that award to $175,000. Complainant also requests additional backpay from September 29, 2012, through the present day. The last item on appeal is that Complainant requests an award for two years of front pay to allow Complainant to obtain an alternative job placement. Complainant further clarifies that he is not challenging the Agency's Final Decision #2, with respect to dental expenses, medical expenses, loss due to apartment rental expenses, moving expenses, closed retirement account losses, gym membership expenses, future fringe benefit losses, future losses for medical and dental expenses, future amended tax return expenses, or pension and leave fund losses. ANALYSIS AND FINDINGS When discrimination is found, the Agency must provide 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. 29 C.F.R. § 1614.501(a)-(c); Reasor v. U.S. Postal Serv., EEOC Appeal No. 0720070004 (January 6, 2009) (citing Franks v. Bowman Transportation Co., 424 U.S. 747 (1976); Albemarle Paper Co. v. Moody, 422 U.S. 405, 418-19 (1975); Adesanya v. United Postal Service, EEOC Appeal No. 01933395 (July 21, 1994)). We acknowledge that the precise measurement cannot always be used to remedy the wrong inflicted, nonetheless, the burden of limiting the remedy rests with the agency. Id. (citing Davis v. U.S. Postal Service, EEOC Petition No. 04900010 (November 29, 1990)). Backpay In the instant appeal, Complainant states that he should be awarded back pay from the effective date of his discharge on July 20, 2011, through the present day for several reasons. Complainant states that the Agency issued two conflicting official return to duty letters, signed by different officials and the second letter, issued seven months after the first indicates the second letter is motivated by reprisal. Complainant states that the April 19, 2013 letter threatens Complainant with disciplinary actions, despite the fact that Complainant has the right to refuse the offered reinstatement. Complainant argues that the two reinstatement offers were not extended in good faith, which is required for make whole relief and Complainant properly refused the Agency's offers of "immediate reinstatement" as described in the Agency's Final Decision. Complainant therefore requests back pay be calculated from the date of Complainant's termination until the Agency extends a good faith offer of reinstatement. We find the Agency twice offered, in good faith, to reinstate Complainant to the position he previously held, and that twice, Complainant rejected the Agency's offer. Furthermore, we find that the Agency reimbursed Complainant with back pay for the appropriate time period, but he refused to accept such payments. We find that Complainant's description of threats and reprisal to be contained in the Agency's offers are, rather than attempts to threaten Complainant, the Agency's appropriate notice to Complainant of the consequences of his own actions, should Complainant choose to reject the Agency's offer(s). We find the Agency properly advised Complainant of his responsibility to report his outside earnings to the Agency so that the Agency can accurately calculate (in a timely fashion) Complainant's back pay award (as well as other benefits) the Agency has been ordered to pay. We find that Complainant's decision to reject the Agency's offer of reinstatement served to terminate the back pay period through which the Agency is required to calculate back pay and related benefits. Therefore, we find no error in the Agency's actions regarding back pay. Nonpecuniary, Compensatory Damages After establishing entitlement to an award of compensatory damages, there is no precise formula for determining the amount of damages for nonpecuniary 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 (August 29, 1997). It should likewise be consistent with amounts awarded in similar cases. See Hogeland v. Dep't of Agriculture, EEOC Appeal No. 01976440 (June 14, 1999). Moreover, we point out that nonpecuniary, compensatory damages are designed to remedy a harm and not to punish the Agency for its discriminatory actions. 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 (March 4, 1999). In Final Decision #2, the Agency's takes into consideration the record evidence from both Complainant and his brother regarding Complainant's pain and suffering, including the exacerbation of Complainant's pre-existing conditions, and specifically his PTSD from which he suffered prior to the time he was hired by the Agency. The Agency's award further considered the duration of Complainant's suffering, including Complainant's separation from the Agency in July 2011, after which he would no longer be subjected to interactions with other Gulf War veterans, which Complainant demonstrated as triggering his own PTSD symptoms. The Agency found that an award of $85,000.00 was reasonable to compensate Complainant for his proven nonpecuniary losses. We concur that the Agency's award of nonpecuniary, compensatory damages in the amount of $85,000 in line with Commission precedent. See Ruben P. v. Social Sec. Admin., EEOC Appeal No. 0720130013 (Aug. 14, 2014) ($60,000 awarded where Complainant was denied reassignment as an accommodation for his symptoms of depression and PTSD); Gamez v. Social Sec. Admin., EEOC Appeal No. 07A20129 (Oct. 27, 2003), request for reconsid. denied, EEOC Request No. 05A40247 (Dec. 30, 2003) (Complainant awarded $90,000 as a result of the Agency's failure to provide a reasonable accommodation. Complainant, her husband, and close friends testified that she experienced emotional distress, her relationship with her husband deteriorated, and she became withdrawn, and suffered lower self-esteem. Complainant's physician indicated that Complainant's symptoms were mild prior to her arrival at the agency); Emiko S. v. Dep't of Trans., EEOC Appeal No. 012012093 (Feb. 20, 2015) ($60,000 awarded where Complainant suffered exacerbation of severe anxiety and depression, hair loss, weight gain, sleeplessness, and migraines). Front Pay Front pay is an equitable remedy that compensates an individual when reinstatement is not possible in certain limited circumstances. The Commission has identified three circumstances where front pay may be awarded in lieu of reinstatement: (1) where no position is available; (2) where a subsequent working relationship between the parties would be antagonistic; or (3) where the employer has a record of long-term resistance to anti-discrimination efforts. Gaynell A. v. Dep't of the Navy, EEOC Appeal No. 0720100043 (Apr. 4, 2014); Tyler v. U.S. Postal Serv., EEOC Request No. 05870340 (Feb. I, 1988). In order for an individual to be eligible for an award of front pay, the individual must be available to work. See Finlay v. U.S. Postal Service, EEOC Appeal No. 01942985 (Apr. 30, 1997); York v. Dep't of the Navy, EEOC Appeal No. 01930435 (Feb. 25, 1994). In the instant case, we find the Agency properly denied Complainant's request for front pay. On appeal, the Agency notes that the Agency has fully complied with its own order to reinstate Complainant, effective July 21, 2011. We find that Complainant failed to provide the medical and financial information the Agency required to provide Complainant with effective accommodations and appropriate back pay. Accordingly, the Agency concluded that Complainant has not shown that reemployment is impossible. We do not find that Complainant has presented evidence that a subsequent working relationship between Complainant and the Agency would be antagonistic. CONCLUSION Based on a thorough review of the record and the contentions on appeal, we AFFIRM the Agency's Final Decision (herein referred to a Final Decision #2). STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0815) 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, 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 (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, Director Office of Federal Operations __________________ 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's Final Decision #1 provided Complainant with appeal rights to the Merit Systems Protection Board (MSPB) with respect to claim (B) (constructive discharge). 3 With respect to attorney's fees, the Agency similarly considered that "the record may be incomplete, or Complainant may have recently retained an attorney to assist to the further processing of the complaint." The Agency therefore allowed Complainant to submit a claim for fees and costs with specific directions, within 30 days of receipt of the Agency's Final Decision regarding liability, after which the Agency would issue a final fee decision within 60 days of receipt of the claim. We find that the record on appeal does not contain a copy of the Agency's decision regarding attorney's fees. However, Complainant does not challenge the award of attorney's fees in the instant appeal and we decline to address the issue of attorney's fees with respect to fees incurred prior to the issuance of Final Decision #2. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ 2 0120132680 2 0120132680