Ruben P., Complainant, v. Carolyn W. Colvin, Acting Commissioner, Social Security Administration, Agency. Appeal No. 0720130013 Hearing No. 410-2010-00504X Agency No. ATL100364SSA DECISION Following its November 4, 2011, final order, the Agency filed a timely appeal which the Commission accepts pursuant to 29 C.F.R. § 1614.405(a). On appeal, the Agency requests that the Commission affirm its rejection of an EEOC Administrative Judge's (AJ) finding of discrimination in violation of Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq. The Agency also requests that the Commission affirm its rejection of the relief ordered by the AJ. For the following reasons, the Commission REVERSES the Agency's final order, and AFFIRMS the AJ's finding of discrimination and relief ordered. ISSUES PRESENTED The issues on appeal is whether there is substantial evidence in the record to support the AJ's finding that Complainant was subjected to disability discrimination when he was denied reassignment as an accommodation for his symptoms of depression and post-traumatic stress disorder; and whether the AJ's award of $60,000 in non-pecuniary compensatory damages was proper. BACKGROUND Complainant has worked as a Service Representative at the Agency's Atlanta, Georgia facility since September 2008. The Commission incorporates the facts as thoroughly outlined in the EEOC Administrative Judge's Bench Decision issued on June 20, 2011. As outlined in the decision, on April 2, 2010, Complainant filed an EEO complainant alleging that the Agency discriminated against him on the bases of disability, and in reprisal for prior EEO activity under the Rehabilitation Act, as well as, subjected him to harassment as articulated in the statement of Issues Presented above.1 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). Complainant timely requested a hearing, and the AJ held a hearing on March 21- 22, 2010, and April 21-22, 2010, and issued a decision on June 20, 2011. The Agency subsequently issued a final order rejecting the AJ's finding that Complainant proved that the Agency subjected him to discrimination as alleged. The AJ's decision found that Complainant had not presented sufficient evidence to satisfy his burden of proof that the Agency subjected him to disability discrimination, reprisal for prior EEO activity, and harassment when: (1) he was placed on administrative leave; (2) his picture was posted in the lobby for approximately three months; (3) his supervisor spoke to him in an aggressive, intimidating and humiliating manner; (4) he was denied representation in a Weingarten meeting; and (5) he was denied a copy of the meeting notes. The AJ's decision did, however, find that Complainant had presented sufficient evidence to satisfy his burden of proof that the Agency subjected him to reprisal for prior EEO activity when: (1) he was instructed to direct all work-related questions to his supervisor, and (2) he was suspended for two days. The AJ also found that Complainant presented sufficient evidence to establish that he was subjected to disability discrimination when he was denied a reasonable accommodation for his symptoms related to post traumatic stress disorder. Lastly, the AJ held that the Agency committed a per se violation of the Rehabilitation Act by failing to adequately safeguard Complainant's medical records. CONTENTIONS ON APPEAL On appeal, the Agency requests that the Commission affirm its rejection of the AJ's decision finding that Complainant was subjected to discrimination on the bases of disability and reprisal for prior EEO activity because the decision contains errors of law requiring reversal. The Agency opines that the AJ failed to apply the correct legal standards when concluding that Complainant was subjected to disability discrimination. Specifically, the Agency argues that Complainant failed to establish that the denial of his July 2010 request for reassignment was a failure to provide a reasonable accommodation, and that the AJ's award of $60,000 in non-pecuniary compensatory damages is excessive and inconsistent with awards in similar cases. STANDARD OF REVIEW Pursuant to 29 C.F.R. § 1614.405(a), all post-hearing factual findings by an AJ will be upheld if supported by substantial evidence in the record. Substantial evidence is defined as "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Universal Camera Corp. v. National Labor Relations Board, 340 U.S. 474, 477 (1951) (citation omitted). A finding regarding whether or not discriminatory intent existed is a factual finding. See Pullman-Standard Co. v. Swint, 456 U.S. 273, 293 (1982). An AJ's conclusions of law are subject to a de novo standard of review, whether or not a hearing was held. An AJ's credibility determination based on the demeanor of a witness or on the tone of voice of a witness will be accepted unless documents or other objective evidence so contradicts the testimony or the testimony so lacks in credibility that a reasonable fact finder would not credit it. See EEOC Management Directive 110, Chapter 9, at § VI.B. (November 9, 1999). ANALYSIS AND FINDINGS After a careful review of the record, including evidence not specifically discussed in this decision, we discern no basis to disturb the AJ's finding of discrimination. The findings of fact are supported by substantial evidence, and the AJ correctly applied the appropriate regulations, policies, and laws. On appeal, the Agency is only contesting the AJ's finding with respect to Complainant's request for reassignment, and the amount awarded in compensatory damages. The decision is limited to the Commission's findings with respect to those specific matters raised on appeal. Failure to Accommodate Commission regulations require an agency to make reasonable accommodations to the known physical and mental limitations of an otherwise qualified individual with a disability unless the agency can show that accommodation would cause an undue hardship. 29 C.F.R. § 1630.9. For the purposes of analysis, we assume Complainant is an individual with a disability. 29 C.F.R. § 1630.2(g)(1). Complainant also must show that he is a "qualified" individual with a disability within the meaning of 29 C.F.R. § 1630.2(m). We note that the discussion of "qualified" does not end at an employee's position. The term "qualified individual with a disability," with respect to employment, is defined as a disabled person who, with or without a reasonable accommodation, can perform the essential functions of the position held or desired. 29 C.F.R. § 1630.2(m). The term "position" is not limited to the position held by the employee, but also includes positions that the employee could have held as a result of reassignment. Therefore, in determining whether an employee is "qualified," an agency must look beyond the position which the employee presently encumbers. Accordingly, an agency should consider reassignment. EEOC Enforcement Guidance on Reasonable Accommodation and Undue Hardship Under the Americans With Disabilities Act (Enforcement Guidance - Reasonable Accommodation), No. 915.002 (revised October 17, 2002); see also Interpretive Guidance on Title I of the Americans With Disabilities Act. Appendix, to 29 C.F.R. Part 1630.2(o). Here, the Agency did not grant Complainant's request for reassignment. On appeal the Agency contends that Complainant did not explain in the "Justification" request what connection, if any, his request for reassignment had to do with his impairment, or alternatively, why reassignment was necessary to accommodate his impairment. Additionally, the Agency states that Complainant did not submit medical evidence that he could not perform the duties of his position due to his disability without an accommodation. Finally, the Agency contends that Complainant did not attempt to identify or establish that there was a vacant, funded position available at the time of his request for which he was qualified. We find substantial evidence in the record supports the AJ's finding that the Agency's asserted reasons for declining to grant Complainant's accommodation request for reassignment was unbelievable. We concur that if the Agency considered Complainant's condition serious enough to warrant placement in the workplace of a special security guard, his condition should have been considered serious enough to warrant the accommodation of reassignment. It doesn't appear that upon receipt of Complainant's reassignment request, that the interactive process took place. The Agency presented no evidence at the time of the request to indicate that reassignment would cause an undue hardship on the Agency. While we note that reassignment is the reasonable accommodation of last resort and is required only after it has been determined that: (1) there are no effective accommodations that will enable the employee to perform the essential functions of his current position; or (2) all other reasonable accommodations would impose an undue hardship, we find that substantial evidence in the record supports the AJ's finding that instead of engaging in the interactive process, Complainant's request was dismissed.2 See Enforcement Guidance on Reasonable Accommodation, EEOC No. 915.002 at Question 24 (Oct. 17, 2002). The Commission notes that for the first time on appeal, the Agency alleges that Complainant failed to show that there was a vacant, funded position to which he could have been re-assigned. The Agency had the opportunity during the hearing to raise this argument in support of its contention that Complainant was not entitled to reassignment, but did not. Consequently, this argument was not addressed by the AJ and therefore will not be addressed in the decision herein. We do note, however, that while the burden of establishing the existence of such a vacant funded position lies with Complainant, he must be given the opportunity to present the evidence necessary to establish that a position exists. See Barnard v. U.S. Postal Serv., EEOC Appeal No. 07A10002 (Aug. 2, 2002); Hampton v. U.S. Postal Serv., EEOC Appeal No. 01986308 (July 31, 2002). In the instant matter, we find that substantial evidence supports the AJ's finding that the Agency's failure to engage Complainant in the interactive process, once he requested reassignment, resulted in his being denied a reasonable accommodation. If there was an interactive process, Complainant would have had the opportunity to present evidence regarding vacant, funded positions to which he could have been reassigned. Compensatory 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: Compensatory and Punitive Damages Available Under Section 102 of the Civil Rights Act of 1991 (Enforcement Guidance), EEOC Notice No. 915.002, at 8 (July 14, 1992). 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 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 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. Evidence from a health care provider or other expert is not a prerequisite for recovery of compensatory damages for emotional harm. Lawrence v. United States Postal Service, 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 prerequisite for recovery of compensatory damages for emotional harm. Complainant's own testimony, along with the circumstances of a particular case, can suffice to sustain her burden in this regard. The more inherently degrading or humiliating the agency'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. See Banks v. United States Postal Service, EEOC Appeal No. 07A20037 (September 29, 2003). 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 the extent to which other factors also caused the harm. Johnson v. Dep't of the Interior, EEOC Appeal No. 01961812 (June 18, 1998). It is the complainant's burden to provide objective evidence in support of the claim, and proof linking the damages to the alleged discrimination. Papas v. U.S. Postal Service, EEOC Appeal No. 01930547 (Mar. 17, 1994); Mims v. Dep't of the Navy, EEOC Appeal No. 01933956 (Nov. 24, 1993). The Commission recognizes that not all harms are amenable to a precise quantification; the burden of limiting the remedy, however, rests with the employer. Chow v. Dep't of the Army, EEOC Appeal No. 01981308 (Feb. 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. See Ward-Jenkins v. Dep't of the Interior, EEOC Appeal No. 01961483 (Mar. 4, 1999) (citing Cyngar v. City of Chicago, 865 F.2d 827, 848 (7th Cir. 1989)). 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. The Agency contends that the AJ's award of non-pecuniary compensatory damages of $60,000 is excessive and inconsistent with awards in similar cases. Specifically, with respect to the finding the Agency took issue with on appeal, the denial of reassignment, the Agency argues that an award of $15,000 is more appropriate and consistent with precedent. Complainant's presentation of evidence at the damages hearing consisted of testimony from himself and his wife. The Agency did not call any witnesses at the damages hearing. Both Complainant and his wife testified that he experienced symptoms of PTSD as early as 1993. Complainant testified that he was diagnosed with PTSD in the late 1990s, and that while working in Kansas City, he saw a mental health professional every other day. Complainant testified that his symptoms of PTSD and depression worsened in July 2009, one year before his July 2010 request for reassignment. Specifically, he testified that his supervisor's "aggressive" and "demeaning" behavior made him feel "less than zero." Both Complainant and his wife testified that Complainant's symptoms worsened after he was placed on administrative leave in November 2009, and that since February 2010 he was depressed and had higher blood pressure. Complainant testified that the denial of his request for accommodation resulted in stress and humiliation, and his wife testified that after Complainant's request was denied, his symptoms worsened, including an elevation of his blood-pressure. Complainant testified that he saw a mental health professional twice per month as of November/December 2010. The AJ found Complainant and his wife's testimony to be candid and credible. Additionally, the AJ found that the testimony was supported by documentary evidence. Neither Complainant, nor his wife, testified that his condition would have inevitably worsened, nor was there documentary evidence that his condition would have inevitably worsened absent the discrimination. We find substantial evidence in the record supports the AJ's finding that any progression or aggravation of Complainant's condition is attributed to the discrimination. The Commission has awarded compensatory damages amounts similar to the amount awarded in this case. See McCoy v. Dep't of Veterans Affairs, EEOC Appeal No. 01A43628 (Sept. 22, 2005) (Complainant awarded $50,000 as a result of the Agency's failure to provide a reasonable accommodation which she stated resulted in her experiencing increased fatigue and exhaustion due to stress. She was unable to sleep, and experienced frequent crying, feelings of hopelessness and fear, and frequent headaches. Statements from family and friends corroborated her claim. Noted pre-existing depression and multiple sclerosis also contributed to her symptoms.); Stephens v. Dep't of Housing and Urban Development, EEOC Appeal No. 01A53933 (March 24, 2006) (Complainant awarded $55,000 as a result of the Agency's failure to provide a reasonable accommodation. Complainant stated that she experienced emotional distress, inconvenience, and mental anguish, as well as anxiety about her finances. A letter from her physician, and statements of a friend and co-worker indicated that Complainant felt hurt and humiliated and suffered stress.); Gamez v. SSA, EEOC Appeal No. 07A20129 (Oct. 27, 2003), request for reconsideration 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.) Accordingly, we find the AJ's award of non-pecuniary compensatory damages in the amount of $60,000 in line with Commission precedent. CONCLUSION Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we REVERSE the Agency's final order, and REMAND the matter back to the Agency to take corrective action in accordance with this decision and the order herein. ORDER Within one-hundred and twenty (120) calendar days of the date this decision becomes final, the Agency, to the extent that it has not done so already, is ORDERED to take the following actions: 1. The Agency is ordered to issue Complainant a check in the amount of $60,000.00 in non-pecuniary compensatory damages for the Agency's discrimination and retaliation against him. 2. The Agency is ordered to issue Complainant a check in the amount of $409.48, plus interest and applicable attributions (minus deductions) in back pay to cover the period of time of Complainant's suspension. 3. The Agency shall rescind the directive regarding work-related questions and shall remove the two-day suspension from all official files. 4. The Agency is ordered to identify and transfer Complainant to a suitable position in accordance with Complainant's request for a reasonable accommodation. 5. Further, the Agency is ordered to segregate all confidential employee medical records and files. The Agency is ordered to restrict access to such records and files in accordance with the guidelines of the Rehabilitation Act as amended. 6. The Agency shall ensure that the relevant management officials who participated in the unlawful discrimination referenced herein do not engage in similar conduct by administering training. Such training shall include, but is not limited to, EEO awareness training, especially focusing on the Rehabilitation Act. To the extent that the Agency still has functional control over those employees responsible for the illegal actions, the Agency shall require these employees to attend a minimum of forty (40) hours of EEO awareness training annually for the next three years. 7. The Agency shall consider taking appropriate disciplinary action against the responsible management officials. The Commission does not consider training to be disciplinary action. The Agency shall report its decision to the Compliance Officer. If the Agency decides to take disciplinary action, it shall identify the action taken. If the Agency decides not to take disciplinary action, it shall set forth the reason(s) for its decision not to impose discipline. If the responsible management officials have left the Agency's employ, the Agency shall furnish documentation of his departure dates. POSTING ORDER (G0610) The Agency is ordered to post at its Atlanta, Georgia facility copies of the attached notice. Copies of the notice, after being signed by the Agency's duly authorized representative, shall be posted by the Agency within thirty (30) calendar days of the date this decision becomes final, and shall remain posted for sixty (60) consecutive days, in conspicuous places, including all places where notices to employees are customarily posted. The Agency shall take reasonable steps to ensure that said notices are not altered, defaced, or covered by any other material. The original signed notice is to be submitted to the Compliance Officer at the address cited in the paragraph entitled "Implementation of the Commission's Decision," within ten (10) calendar days of the expiration of the posting period. ATTORNEY'S FEES (H0610) If Complainant has been represented by an attorney (as defined by 29 C.F.R. § 1614.501(e)(1)(iii)), he/she is entitled to an award of reasonable attorney's fees incurred in the processing of the complaint. 29 C.F.R. § 1614.501(e). The award of attorney's fees shall be paid by the Agency. The attorney shall submit a verified statement of fees to the Agency -- not to the Equal Employment Opportunity Commission, Office of Federal Operations -- within thirty (30) calendar days of this decision becoming final. The Agency shall then process the claim for attorney's fees in accordance with 29 C.F.R. § 1614.501. 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 (R0610) This is a decision requiring the Agency to continue its administrative processing of your complaint. However, if you wish to file a civil action, you have the right to file such action in an appropriate United States District Court within ninety (90) calendar days from the date that you receive this decision. 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 filed your appeal with the Commission. 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. 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 __8/14/14________________ Date 1 The Commission notes that Complainant's initial EEO complaint contained five additional allegations as outlined in the AJ's decision. The AJ found no discrimination with respect to those allegations, and they are not at issue in the instant appeal. 2 An agency's failure to engage in the interactive process does not, by itself, demand a finding that a complainant was denied a reasonable accommodation. Broussard v. United States Postal Service, EEOC Appeal No. 01997106 (September 13, 2002). Rather, to establish a denial of reasonable accommodation, a complainant must show, as Complainant in this case did, that the failure to engage in the interactive process resulted in the agency's failure to provide a reasonable accommodation. Id. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ 2 0720130013 U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 2 0720130013