Trina C., Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service, Agency. Appeal No. 0120141973 Agency No. 6U-000-0006-11 DECISION On April 25, 2014, Complainant filed an appeal from the Agency's April 3, 2014 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. The Commission deems the appeal timely and accepts it pursuant to 29 C.F.R. § 1614.405(a). For the following reasons, the Commission AFFIRMS the Agency's final decision awarding compensatory damages to Complainant. BACKGROUND Complainant worked as a business solutions specialist at the Agency's district office in Carol Stream, Illinois. In Complainant v. United States Postal Service, EEOC Appeal No. 0120133008 (January 27, 2014), Complainant alleged that her immediate supervisor had discriminated against her on the basis of sex by issuing her a letter of warning on February 2, 2011, and had retaliated against her for filing EEO Complaint No. 6U-000-0006-11, by making disparaging comments about her at an all-hands meeting on March 4, 2011, and in an email sent the following day. The Commission found in favor of the Agency on the letter of warning and in Complainant's favor on the supervisor's comments, holding that the supervisor's conduct constituted an attempt to interfere with the outcome of Complainant's EEO case and to pressure Complainant into withdrawing her complaint. Among the remedies the Commission ordered, the Agency was directed to conduct a supplemental investigation on Complainant's entitlement to compensatory damages, and to award attorney's fees. The Agency awarded Complainant $46.41 in out-of-pocket expenses for pain, sleep, and anti-anxiety medications. The Agency also awarded Complainant $500.00 in damages for pain and suffering resulting from the actions of the supervisor at the March 4 meeting and the email afterward. Complainant filed a notice of appeal and submitted a number of attachments, including a request for attorney's fees, documents pertaining to a claim for back pay and restoration of leave, and insurance statements pertaining to various health care services and medications provided to her between March and December 2011. She did not, however, submit a brief or statement on why the Commission should increase the amount of her damages award. Complainant submitted two affidavits in support of her claim for compensatory damages. She claimed that she incurred expenses in connection with ongoing visits to her family doctor and a licensed therapist. She stated that she was diagnosed as suffering from anxiety and depression, as well as from migraine headaches and fibromyalgia, a chronic pain condition attributed to overactive nerves. She also stated that she was taking a number of prescription medications, including Lyrica, Lexapro, and Zanex. In her initial affidavit, she characterized the fibromyalgia as a pre-existing condition, but in her supplemental affidavit, she stated that only her migraines were pre-existing. Investigative Report (IR) 92-93; Supplemental Investigative Report (SIR) 15-16. The investigative report includes a series of notes from Complainant's family doctor prepared between March 8 and May 23, 2011. The notes indicated that Complainant was suffering from symptoms of anxiety and mild depression related to stress on the job, that she suffered from insomnia, difficulty with concentration, anorexia, and crying spells, and that she was unable to work. Receipts for Lyrica, Zolpidem, and Alprazolam dated March 8, 2011, total $46.41. IR 96-100, 103-06. The investigative report also includes a letter dated May 20, 2011, from Complainant's therapist, a licensed clinical professional counselor. The letter states that Complainant was first seen on March 21, 2011, complaining of headaches, fatigue, depression, loss of appetite, and sleep-related problems which resulted from work-related stress. The letter further states that Complainant had been undergoing individual psychotherapy for treatment of depression and anxiety resulting from conflicts with her supervisor. In addition, the letter references disciplinary actions taken against her as the source of the stress. IR 101. ANALYSIS AND FINDINGS The Agency initially noted that it is in the process of separately addressing Complainant's request for attorney's fees. Accordingly, we will not adjudicate that issue. We likewise will not award Complainant back pay and leave restoration, since those remedies are not compensatory damages and are beyond the scope of order for relief in Appeal No. 0120133008. See Carter v. Department of Veterans Affairs, EEOC Appeal No. 0120122266 (October 18, 2012). To recover damages, Complainant must prove that the harm or loss she suffered and the out-of-pocket expenses she incurred resulted directly from the supervisor's comments about her at the March 4, 2011 staff meeting and in the subsequent emails. Fonda-Wall v. Department of Justice, EEOC Appeal No. 0720060035 (July 28, 2009). The only claims for out-of-pocket medical expenses supported by receipts are the prescriptions for Lyrica, Xolpidem, and Alprazolam dated March 8, 2011, in the amount of $46.41. The documents that Complainant submitted as attachments to her notice of appeal consist mainly of statements from her insurance company describing which services that would be covered under her plan and which services she would be responsible for. She has not submitted any bills or receipts other than those dated March 8, 2011, showing actual payments she made. Consequently, we find that the Agency properly awarded $46.41 in out-of-pocket medical expenses to Complainant. We now consider the Agency's award of damages for pain and suffering in the amount of $500. In Vincent v. United States Postal Service, EEOC Appeal No. 0120101454 (December 16, 2010), the Commission found reprisal under similar circumstances to the case now before us. During a talk on EEO rights, the employee's supervisor made a statement to the effect of "what goes around comes around" in reference to EEO complaints, and later refused to help the employee fill out workers' compensation forms. The only evidence supporting the employee's claim for damages was her own affidavit, in which she stated that she became sick to her stomach at work, that she had trouble sleeping, and that she had high blood pressure. The employee failed to provide other medical evidence to support her claim. The Commission found a compensatory damages award of $500 to be appropriate under those circumstances. In the instant case, Complainant's statement in her affidavits that she suffered from anxiety and depression is supported by notes from her family doctor and a letter from her therapist. However, while Complainant mustered more documentation in support of her claim than the employee in Vincent, none of those documents establish that her symptoms were caused by or otherwise attributable to the supervisor's public comments and email in March 2011. The doctor's notes only reference "stress on the job," while the letter from the therapist refers to "work-related stress resulting from conflicts with her supervisor." The letter's further reference to "disciplinary actions" suggests that Complainant's stress resulted from the letter of warning issued in February 2011, which was found not to be discriminatory. Complainant has therefore not presented any argument or evidence on appeal that would justify increasing her award beyond what the Agency had already granted her. CONCLUSION Based on a thorough review of the record and the contentions on appeal, we AFFIRM the Agency's compensatory damages award in the amount of $546.41. ORDER (C0610) Unless it has already done so, the Agency shall issue a check to Complainant in the amount of $546.41. 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 verifying that the corrective action has been implemented. IMPLEMENTATION OF THE COMMISSION'S DECISION (K0610) Compliance with the Commission's corrective action is mandatory. The Agency shall submit its compliance report within thirty (30) calendar days of the completion of all ordered corrective action. The report shall be submitted to the Compliance Officer, Office of Federal Operations, Equal Employment Opportunity Commission, P.O. Box 77960, Washington, DC 20013. The Agency's report must contain supporting documentation, and the Agency must send a copy of all submissions to the Complainant. If the Agency does not comply with the Commission's order, the Complainant may petition the Commission for enforcement of the order. 29 C.F.R. § 1614.503(a). The Complainant also has the right to file a civil action to enforce compliance with the Commission's order prior to or following an administrative 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. 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 November 14, 2014 __________________ Date 2 0120141973 U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013