Complainant, v. Megan J. Brennan, Postmaster General, United States Postal Service (Capital Metro Area), Agency. Appeal No. 0120140548 Agency No. 4K-230-0209-08 DECISION Complainant filed an appeal from the Agency's October 28, 2013 final decision regarding the issue of compensatory damages. The Commission deems the appeal timely and accepts it pursuant to 29 C.F.R. § 1614.405(a). BACKGROUND The record reflects the following chronology of events. In February 2000, Complainant assumed the position of Customer Services Supervisor at the Milan Post Office in Norfolk, Virginia. However, in 2003, he became incapacitated due to a workplace incident and was unable to perform in his position from approximately, September 16, 2003, until August 17, 2007. In 2007, Complainant provided the Agency with documentation that he could return to work effective August 17, 2007, with certain medical restrictions. The Agency concluded that Complainant could not perform the functions of his supervisory position and placed him on enforced leave. Complainant filed an appeal on the issue of enforced leave to the Merits Systems Protection Board (MSPB). The parties entered into a settlement agreement. As part of the settlement, Complainant was placed into a Sale Services/Distribution Associate position effective March 29, 2008, with "saved pay" from his previous supervisory position. In January 2008, while the MSPB appeal was still pending, Complaint filed a timely application with the Agency for an advertised position (Vacancy # CM-06937) of Labor Relations Specialist, EAS-17/19 in the Richmond, Virginia District. Complainant was interviewed for the position and was notified by letter dated May 21, 2008, that he was not selected. Complainant filed a formal EEO complaint. After the investigation of the complaint, Complainant requested a hearing before an EEOC Administrative Judge (AJ). Following a hearing, the AJ found that the Agency engaged in a per se violation of the Rehabilitation Act when it questioned Complainant regarding his restrictions and when it instructed him to provide documentation clarifying his restrictions before extending him an offer of employment. However, the AJ further found that "the Agency's impermissible inquiry did not taint its selection process and was not a determinative cause of [Complainant's] nonselection." Complainant filed an appeal with the Commission's Office of Federal Operations (OFO) from the AJ's decision. In EEOC Appeal No. 0120120923 (May 3, 2013), OFO found that the AJ erred in finding that the Agency's impermissible disability-related inquiry was not a determinative factor in Complainant's nonselection. OFO ordered the Agency to take various actions, including conducting a supplemental investigation regarding Complainant's entitlement to compensatory damages and issue a final decision on the matter. In its final decision dated October 28, 2013, the Agency determined that Complainant was entitled to an award of $10,000.00 in non-pecuniary compensatory damages. In reaching this amount, the Agency reasoned as follows: There is no evidence of either an immediate or a lasting effect on [Complainant] as a result of the nonselection. [Complainant's] October 2008 affidavit stated that [he] had not experienced any medical, psychological, or financial difficulties and was not taking medication. It simply stated in one sentence that [he] had 'feelings of depression, anger, sorrow, and loss of self esteem.' For the remaining seven months of 2008 and over nine months of 2009, [Complainant] took sick leave on only five occasions totaling less than two weeks. [Complainant] acknowledge[s] that [he] did not seek psychological treatment until [he] filed [his] recurrence claim in October 2009 concerning a change in [his] limited duty work assignment and it was this change that [Complainant] and [his] medical providers presented to the Office of Workers Compensation Programs (OWCP) as the cause of [his] health problems, not the denied promotion. Following [his] return after unsuccessfully pursuing [his] recurrence claim, [his] sick leave usage over the next [18] months has amounted to four instances totaling less than two weeks. Whatever financial problems [Complainant] experienced after May 2008 had begun prior to the promotion decision as a result of unwise personal decisions and were exacerbated, not by [his] failure to obtain a promotion, but by [his] decision to stop coming to work, although he had no accrued leave, while [his] recurrence claim was being considered and denied by OWCP. Final Agency Decision (FAD) at 11. The Agency denied Complainant's request for various pecuniary damages. The instant appeal followed. On appeal, Complainant's attorney asserts that Complainant is entitled to $150,000 ($100,000 for injury to his credit standing and $50,000 for emotional and physical harm) in non-pecuniary damages and $4,556.06 in pecuniary damages. In response, the Agency requests that we affirm its final decision. ANALYSIS AND FINDINGS Complainant's Request for Sanctions On appeal, Complainant's attorney requests that we sanction the Agency, by only considering the documents Complainant submitted with respect to the compensatory damages issue. Specifically, the Complainant's attorney states "the Agency violated [Department of Labor (DOL)] regulations by accessing, including, and relying on documents from [Complainant's] OWCP case files." In response, the Agency asserts that sanctions are not warranted and OFO should consider the record in its entirety. Specifically, the Agency states: [T]he Agency referenced a single official decision by the Office of Workers Compensation Programs in its final agency decision. The decision was included as evidence that the Complainant had failed to disclose the real reason for his continued absence from work beginning in October 2009...that he had objected to a change in his limited duty assignment and filed a claim that this action had caused a recurrence of the physical and psychological problems originally caused by a 2003 incident on the workroom floor. The Agency is not aware that an official decision by the [OWCP] on the merits of a claim is the sort of information in an OWCP file which cannot be used without the claimant's permission since it is not Complainant's document. In addition, this information is directly relevant to the credibility of the Complainant's assertions in his claim..." Agency's Brief at 2. We concur with the Agency that we find the documents submitted by the Agency relevant to Complainant's entitlement to compensatory damages. To the extent Complainant's attorney alleges that the Agency providing these documents is a violation of DOL regulations, he should raise these concerns with DOL directly.1 Based on the foregoing, we deny Complainant's request for sanctions. Pecuniary Damages Pecuniary losses are out-of-pocket expenses that are incurred as a result of the employer's unlawful action. Typically these damages include reimbursement for medical expenses, job-hunting expenses, moving expenses, and other. quantifiable out-of-pocket expenses. Enforcement Guidance: Compensatory and Punitive Damages Available Under Section 102 of the Civil Rights Act of 1991, EEOC Notice No. 915.002 (July 14, 1992), at 14. Past pecuniary losses are losses incurred prior to the resolution of a complaint through a finding of discrimination, the issuance of a full-relief offer, or a voluntary settlement. Id. at 8-9. Future pecuniary losses are losses that are likely to occur after resolution of a complaint. Id. at 9. For claims seeking pecuniary damages, such objective evidence should include documentation of out-of-pocket expenses for all actual costs and an explanation of the expense, e.g., medical and psychological billings, other costs associated with the injury caused by the agency's actions, and an explanation for the expenditure. Id. at 9. Bankruptcy Fees Complaint is seeking reimbursement of a $336.00 filing fee with respect to his bankruptcy. We are not persuaded from the record before us that Complainant had to file for bankruptcy as a result of the Agency not selecting him for the Labor Relations Specialist position. In a detailed analysis, in its final decision, the Agency properly sets forth that Complainant had accumulated significant debt prior to the nonselection at issue. We further concur with the Agency that there is significant evidence in the record that Complainant's absence from work in 2009-2011, was due to factors other than his nonselection for the Labor Relations Specialist position. Specifically, the Agency asserts as follows: On August 26, 2009, [Complainant] was advised that [he] was being reassigned/excessed from the limited duty position which [he] had held since March 17, 2008, and given a new work assignment which would be effective October 5, 2009...The effective date of this new assignment correlates with [his] use of sick and annual leave on and after October 10, 2009, and [his] continuous absence from work October 20, 2009 through mid-2011...On November 9, 2009, shortly after [Complainant] decided no longer to report to work, [he] filed a recurrence claim with [OWCP] claiming that on October 31, 2009, [Complainant] had begun experiencing flashbacks associated with the 2003 incident that led [him] to file [his] original FECA claim. FAD at 4. The record reflects that OWCP denied Complainant's recurrence claim. In a June 3, 2010 decision, an OWCP Senior Claims Examiner asserted: [Complainant's attending psychiatrist, P1] mentioned that [Complainant] was given a new job offer on [October 9, 2009] and this job would have a new schedule, altering both [his] hours and days off. [P1] stated that she was not informed of the change and this situation involving the new job offer precipitated a re-emergence of the symptoms...[Complainant's] dissatisfaction with the new job offer in October 2009 is not a compensable factor under FECA..."2 OWCP June 3, 2010 Notice of Decision Regarding Reconsideration Request at 3, 6. Medication/Pharmacy Costs and Physician Visits Complainant is seeking reimbursement of $850.05 in pharmacy costs for medications. We are not persuaded from the record before us that these costs are related to the Agency not selecting Complainant for the Labor Relations Specialist position. In a detailed analysis, the Agency sets forth that the record does not support that these expenses were due to the promotion denial. Specifically, the Agency states: The expenses listed in Complainant's current submission were not incurred until nearly four years after the promotion decision found to be discriminatory...While [Complainant] claims these expenses related to conditions exacerbated or caused by the denied promotion, that claim is not credible given [his] October 22, 2008 affidavit,3 the four year gap in time before even the first expenditure, and [Complainant's FECA] recurrence claim and associated assertion to OWCP that it was the October 2009 change in his work assignment which exacerbated [his] medical problems and caused a return of previously dormant symptoms. FAD at 7. We are also not persuaded that Complainant's medical visits in which Complainant is seeking reimbursement of $100 were the result of Complainant's nonselection. In a detailed analysis, in its final decision, the agency asserts that these appointments "relate to four visits spaced months apart between February 1, 2012 and January 4, 2013...there is no description of the treatment provided or the condition treated." FAD at 8. Based on the foregoing, we concur with the Agency's denial of Complainant's request for reimbursement of medication costs and physician visits. Mental Healthcare Costs Complainant seeks reimbursement of $3280 of mental healthcare costs. We are not persuaded based on the record before us that these costs were the result of Complainant's nonselection for the Labor Relations Specialist position. In a detailed analysis, the Agency in its final decision asserts: [Complainant] seeks reimbursement for $2930.00 in mental health care treatments for [32] unspecified dates for 2009-2011. The document [in support of this claim] is a one page unsigned note dated June 23, 2013 which merely states "5 visits billed 90962 at $100.00 per hour: $500.00 and 27 visits billed 90806 at $90.00 per hour :$2430. The billing codes are not described and the purpose of the visits is not identified....Given the fact that these visits began in 2009 and stretched through 2011, the same time frame within which [he was] pursuing his recurrence claim with the [OWCP]...the more likely conclusion to be drawn is that these visits were related to pursuit of [his] recurrence claim and the incident which caused [him] to file it-flashbacks brought on by the change in [his] work assignment-and not the denied promotion. FAD at 8. In addition, we are denying Complainant's request for reimbursement of the $350 "Letter Fee." As set forth in the Agency's final decision, this fee is unexplained and not clearly related to the nonselection at issue. To the extent this fee is in reference to the June 20, 2013 letter provided by a licensed social worker, as discussed below in the section entitled "Non-pecuniary Damages", we found that this document would not be given as much weight as other more contemporaneous documents in the record. Based on the foregoing, we will not award Complainant reimbursement for this expense. Non-pecuniary Damages Non-pecuniary losses are losses that are not subject to precise quantification, i.e., emotional pain, suffering, inconvenience, mental anguish, loss of enjoyment of life, injury to professional standing, injury to character and reputation, injury to credit standing, and loss of health. There is no precise formula for determining the amount of damages for non-pecuniary losses except that the award should reflect the nature and severity of the harm and the duration or expected duration of the harm. See Loving v. Dep't of the Treasury, EEOC Appeal No. 01955789 (Aug. 29, 1997). Non-pecuniary compensatory damages are designed to remedy the harm caused by the discriminatory event rather than punish the Agency for the discriminatory action. Furthermore, compensatory damages should not be motivated by passion or prejudice or "monstrously excessive" standing alone but should be consistent with the amounts awarded in similar cases. See Ward-Jenkins v. Dep't of the Interior, EEOC Appeal No. 01961483 (Mar. 4, 1999). Evidence from a health care provider or other expert is not a mandatory prerequisite for recovery of compensatory damages for emotional harm. See Lawrence v. U.S. Postal Service, EEOC Appeal No. 01952288 (Apr 18, 1996) (citing Carle v. Dep't of the Navy, EEOC Appeal No. 01922369 (Jan. 5, 1993)). Objective evidence of compensatory damages can include statements from Complainant concerning 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. Id. Statements from others, including family members, friends, and health care providers could address the outward manifestations of the impact of the discrimination on the complainant. Id. The Agency awarded Complainant $10,000.00 in non-pecuniary damages, while Complainant is seeking $150,000. We find that the Agency's award of $10,000.00 is not monstrously excessive and is consistent with similar cases. We concur with the Agency's detailed analysis that a review of the record in its entirety does not warrant a greater award. The Agency states: The record shows that in October 2008, [Complainant] denied that the promotion decision caused [him] any medical or psychological problems...[Complainant's record] of sick leave usage during the time period immediately following the denied promotion does not suggest any adverse health effects associated with the denied promotion. The record also shows that [his] extended absence after October 2009 was not due to a denied promotion eighteen months before but to [his] claimed flashbacks to a 2003 incident brought on by the October 5, 2009 change in [his] work assignment which formed the sole basis of [his] November 2009 recurrence claim with [OWCP]. FAD at 9. We are not persuaded that Complainant's financial difficulties and loss of credit standing are related to the nonselection at issue. Rather, as set forth above in our discussion on bankruptcy filing fees, we find that the record does not establish that Complainant's financial difficulties were related to the instant nonselection. In addition, we note that while Complainant provides affidavits from co-workers and a letter from a social worker in 2013, we concur with the Agency that it is proper to give more weight to the other evidence in the record. For example, the Agency states "[t]he June 20, 2013 letter from a [social worker]...giving the 'impression' that the failure to achieve a promotion caused the re-emergence of Complainant's symptoms associated with the 2003 workplace incident is not worth any weight as evidence because it is contradicted by Complainant's psychiatrist contemporaneous submission to the OWCP in 2009. A social worker's impression stated four years after a psychiatrist opined something entirely different, is not worthy of consideration." Agency Brief at 4. Based on the foregoing, we find that the more contemporaneous documents in the record, such as Complainant's October 2008 affidavit and the 2010 OWCP decision containing statements from Complainant's psychiatrist are worthy of more weight with respect to the compensatory damages issue. Complainant, in his October 2008 affidavit, asserted that due to the nonselection he had "feelings of depression, anger, sorrow, and loss of self esteem."4 We find that the Agency's $10,000 award in non-pecuniary compensatory damages is consistent with similar cases. See Complainant v. U.S. Postal Serv., EEOC Appeal No. 0120121071 (July 17, 2013) (awarding complainant $10,000 in non-pecuniary compensatory damages for discriminatory notice of removal reduced to a letter of warning when complainant experienced depression, sleeplessness, and feelings of desperation); Complainant v. Dep't of Homeland Security, EEOC Appeal No. 0720050099 (Dec. 15, 2006) (awarding complainant $10,000 in non-pecuniary compensatory damages for discriminatory nonselection when complainant experienced anger, feelings of depression, and difficulty sleeping). Accordingly, we AFFIRM the Agency's final decision awarding $10,000.00 in non-pecuniary damages and denying pecuniary damages. ORDER Within sixty (60) days from the date this decision becomes final, to the extent it has not already done so, the Agency shall: 1) Pay Complainant $10,000.00 in non-pecuniary compensatory damages. The Agency shall submit a report of compliance, as provided in the paragraph 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 (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 March 20, 2015 Date 1 Complainant, through his attorney, requests that we not consider the OWCP decision submitted by the Agency. We note that Complainant does not expressly contest that he submitted statements from a psychiatrist to OWCP (as referenced in the OWCP decision) in which the psychiatrist indicated that Complainant had received a new job offer in October 2009, which precipitated a reemergence of his symptoms. 2 The June 3, 2010 OWCP decision also provides that in November 2009, Complainant filed for total disability wage loss and recurrence claims and that Complainant was feeling depressed, anxious and experiencing sleeplessness. Complainant asserted that he was provided a new job offer by the Agency and was assigned to mail processing only rather than being assigned to customer service and mail processing simultaneously. OWCP June 3, 2010 Decision at 2. 3 In his October 2008 affidavit, Complainant declared under penalty of perjury that he did not experience medical problems, did not have to take medication, and that he did not have to obtaining counseling because of the denied promotion. 4 In his October 2008 affidavit, Complainant also declared under penalty of perjury that he did not experience medical problems, did not have to take medication, and that he did not have to obtaining counseling because of the denied promotion. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ 2 0120140548 U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 2 0120140548