Lula N., Complainant v. Eric K. Shinseki, Secretary, Department of Veterans Affairs, Agency. Appeal No. 0120113346 Agency Nos. 2004-0002-2007101806 2004-0002-2009102163 DECISION Complainant timely filed an appeal from the Agency's final decision on the issue of compensatory damages, 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 Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq., and Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq. The Commission accepts the appeal pursuant to 29 C.F.R. § 1614.405(a). For the following reasons, the Commission MODIFIES the Agency's final decision on compensatory damages. ISSUE PRESENTED The issue presented is whether the Agency properly determined that Complainant was entitled to non-pecuniary compensatory damages in the amount of $40,000. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Program Specialist, GS-11, at the Agency's Public and Intergovernmental Affairs in Washington, D.C. On June 21, 2007, and May 13, 2009, Complainant filed formal EEO complaints alleging that the Agency subjected her to discriminatory harassment the bases of race (African-American), age 48), disability, and reprisal for prior protected EEO activity when: 1. she was denied accommodation for her disability from January 2002 to the present; 2. she was suspended March 14 through March 16, 2007; 3. her reassignment to the position of Staff Assistant for National Programs and Special Events was rescinded on March 30, 2007; 4. on January 31, 2007, she received a notice of proposed suspension for being absent without leave (AWOL); 5. on October 18, 2006, she was denied her within-grade increase to GS-11, step 5; 6. in September 2006, the Agency denied her reasonable accommodation when her Family and Medical Leave Act (FMLA) leave request was denied; 7. on March 20, 2006, the Agency made negative comments on her performance appraisal regarding her health-related absences; 8. in March 2006, many of her duties were taken away from her and given to a coworker who was then promoted; 9. in January 2005 and 2006, she was denied training related to her contracting duties; 10. in September 2006, after reconstruction of the office, she was not asked about her seating preference and a coworker was assigned to her old desk. 11. in July 2005, she was placed on leave restriction; 12. in April 2005, she was relocated the Office of Public Affairs and her duties were changed; 13. in November 2004, after she returned to work after a stroke, she was relocated to a work environment that was disruptive and distracting; 14. in September 2004, her request to be placed in the Leave Transfer Program was denied; 15. she was denied tools to do her job, such as business cards, a cellular phone, VPN remote access, a Blackberry, and training opportunities; 16. a coworker was instructed to track her leave and post it on the office calendar; 17. she was not allowed to do any travel related to her program responsibilities; and 18. she was removed from her position of Program Specialist on January 30, 2009. In its final decision dated August 30, 2010, the Agency found that Complainant established that she was subjected to retaliation with respect to claim 3. In particular, the Agency found that Complainant proved by direct evidence that her reassignment was canceled because she had filed an EEO complaint. The Agency, however, found that Complainant failed to establish that she was subjected to discrimination and harassment with respect to her other claims. Specifically, the Agency found that Complainant failed to establish that she was subjected to discrimination based on race, age, and disability relating to her claims of failure to accommodate, suspension, harassment, and removal.1 The Agency noted that it would defer its decision on compensatory damages pending a supplemental report of investigation. At the conclusion of the supplemental investigation, the Agency issued a final decision on damages on June 11, 2011.2 In its decision, the Agency awarded Complainant $2,473.52 in past pecuniary damages and $40,000.00 in non-pecuniary compensatory damages. With respect to pecuniary damages, the Agency noted that it approved Complainant's request for reimbursement for medical expenses. The Agency noted that the rescission of Complainant's reassignment impacted her emotional and physical health and it was partly responsible for the exacerbation of her pre-existing medical conditions. The Agency also noted that it was denying Complainant's request for damages relating to the loss of her home and car, and bankruptcy. The Agency noted that these losses were the consequences of Complainant's loss of income and not its failure to reassign her. The Agency also noted that Complainant's termination and her physical inability to perform her duties were not found to be based on discrimination. With regard to non-pecuniary compensatory damages, the Agency noted that Complainant suffered from high blood pressure, strokes, back pain, loss of strength on the right side of her body, headaches, anxiety, insomnia, depression, crying bouts, dizziness, confusion, allergy, asthma, and social withdrawal. The Agency noted that Complainant's sister and doctors credibly testified that Complainant suffered emotional distress as a result of the retaliatory conduct. The Agency also noted that the duration of the emotion harm suffered by Complainant dated from March 2007. The Agency further noted that Complainant's physical and emotional harm were caused in part by factors other than the retaliation. The Agency noted that Complainant had a past history of back pain, hypertension, stroke, and depression. The Agency also noted that the testimony of Complainant, her doctors, and her sister indicated that her termination and financial burdens contributed to her emotional and physical distress. The Agency concluded that Complainant was entitled to $40,000 in non-pecuniary compensatory damages. CONTENTIONS ON APPEAL On appeal, Complainant, through her attorney, acknowledges that prior to March 2007 she had struggled with health problems. Complainant contends that after the denial of her reassignment in March 2007, her health continued to decline. Complainant also contends that the Agency erroneously denied her claim for back pay. Complainant contends there is a causal nexus between the denial of her reassignment and the leave she had to take as a result of her medical condition. Complainant contends that if she had been reassigned she would not have had to take leave because she would have been assigned to a new supervisor, which would have reduced her stress. Complainant contends that the reassignment was to a desk job, which did not require any physical lifting. Complainant contends that the Agency is directly responsible for the time she missed from work after it denied her the reassignment. Complainant also contends that the Agency's award of $40,000 in non-pecuniary damages inadequately compensated her for the harm that she suffered. Complainant contends that she had a series of strokes as a result of the denial of her reassignment. Complainant contends that in May 2007, she began to see a psychiatrist. Complainant contends that testimony and medical documentation clearly demonstrate that she was adversely affected when the Agency denied her the reassignment. Complainant contends that she would not have been terminated if she had been reassigned. Complainant also contends that she would not have encountered financial issues if the reassignment had gone forward. Complainant contends that her pre-existing conditions should not lower her damage award. STANDARD OF REVIEW As this is an appeal from a decision issued without a hearing, pursuant to 29 C.F.R. § 1614.110(b), the Agency's decision is subject to de novo review by the Commission. 29 C.F.R. § 1614.405(a). See Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614, at Chap. 9, § VI.A. (Nov. 9, 1999) (explaining that the de novo standard of review "requires that the Commission examine the record without regard to the factual and legal determinations of the previous decision maker," and that EEOC "review the documents, statements, and testimony of record, including any timely and relevant submissions of the parties, and . . . issue its decision based on the Commission's own assessment of the record and its interpretation of the law"). ANALYSIS AND FINDINGS 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. See EEOC Notice No. 915.302, Enforcement Guidance on Compensatory and Punitive Damages Available Under Section 102 of the Civil Rights Act of 1991, at 10 (July 14, 1992). 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). 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. 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 Serv., 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, health care providers, 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. Id. Complainant's own testimony, along with the circumstances of a particular case, can suffice to sustain his burden in this regard. Id. The more inherently degrading or humiliating the defendant's action is, the more reasonable it is to infer that a person would suffer humiliation or distress from that action. Id. The absence of supporting evidence, however, may affect the amount of damages appropriate in specific cases. Id. In the instant case, Complainant testified that she began to have blood pressure issues after surgery in 2003. Supplemental Report of Investigation on Compensatory Damages (Supp. ROI), Ex. 3, at 8. Complainant also testified that she was hospitalized for a stroke in August 2004. Id. Complainant testified that her condition worsened substantially after her reassignment was cancelled. Complainant testified that she had a series of strokes as recent as December 31, 2010. Id. at 6. Complainant testified that she suffered a loss of strength on the right side of her body, had constant issues with her blood pressure, and suffered from insomnia, anxiety, and depression. Id. at 8. Complainant testified that she began to see a psychiatrist shortly after her reassignment was denied. Id. at 12. Complainant testified that she lost her health insurance and experienced financial difficulties after she was terminated. Id. at 13-15. Complainant testified that her back impairment worsened after she was denied the reassignment. Id. at 22. Complainant testified that she was forced to file for bankruptcy in July 2010. Id. at 24-25. Complainant testified that she was forced to sell her car and unable for afford the mortgage for her home. Id. at 26. Complainant provided documentation noting that after she was denied reassignment her heath worsened. Supp. ROI, Ex. 4, at 1-2. Complainant experienced anxiousness, depression, crying, headaches, insomnia, and high blood pressure. Id. Complainant was treated by doctors for her hypertension and depression and provided with medication. Id. Complainant's doctor requested that she not return to work due to her high blood pressure, and she was out of work from March 2008 until the Agency terminated her in January 2009. Id. We note that Complainant's sister wrote that Complainant suffered from severe depression due to the discrimination she suffered. Id., at 3-4. Complainant's sister wrote that Complainant's home became a mess and she stopped attending family functions. Id. Complainant sister wrote, "It has been a domino effect . . . and has pretty much knocked down her life to pieces, her joy, peace, emotional, and physical being, financial stability, her independence and her confidence, to name a few." Id. We note that the neurologist who treated Complainant on May 15, 2007, wrote that Complainant was experiencing numbness and tingling in her hands and was complaining of slurred speech. Supp. ROI, Ex. 17, at 2. The neurologist prescribed medication for Complainant and advised her to monitor her blood pressure. Id. On May 23, 2007, Complainant visited her psychiatrist, who noted that stressors at work were negatively affecting her blood pressure. Complainant's psychiatrist also prescribed medication for Complainant's anxiety. Supp. ROI, Ex. 18. In a report dated December 4, 2008, Complainant's Orthopedic Surgeon noted that Complainant was seen for recurrent back pain. The Surgeon also noted that Complainant was being treated for stress, anxiety, and hypertension from work-related stress. Supp. ROI, Ex. 15. In a letter dated March 13, 2009, another doctor noted that she had treated Complainant on 25 occasions due to job-related stress. Supp. ROI, Ex. 16. This doctor noted that this job-related stress, which exacerbated Complainant's blood pressure, depression, and anxiety disorder, was the direct result of her treatment at work. Id. This doctor noted that Complainant had stokes and mini strokes from 2004 through 2006 due to work-related stress. Id. The Commission applies the principle that "a tortfeasor takes its victims as it finds them." See Wallis v. U.S. Postal Service, EEOC Appeal No. 01950510 (Nov. 13, 1995) (quoting Williamson v. Handy Button Machine Co., 817 F.2d 1290, 1295 (7th Cir. 1987)). However, the Commission also applies two exceptions to this general rule. First, when a complainant has a preexisting condition, the agency is liable only for the additional harm or aggravation caused by the discrimination. Second, if the complainant's preexisting condition inevitably would have worsened, the agency is entitled to a reduction in damages reflecting the extent to which the condition would have worsened even absent the discrimination; the burden of proof is on the Agency to establish the extent of this entitlement. Wallis, EEOC Appeal No. 01950510 (citing Maurer v. United States, 668 F.2d 98 (2d Cir. 1981)). In the instant case, while Complainant suffered from hypertension, high blood pressure, and strokes prior to the denial of her reassignment, Complainant's doctors opined that that the Agency's actions significantly worsened her conditions, causing anxiety, crying, headaches, and depression. One of Complainant's doctors noted that Complainant's stress, which exacerbated her blood pressure, depression, and anxiety disorder, was a direct result of her treatment at work. We also note that shortly after her reassignment was rescinded in May 15, 2007, Complainant experience slurred speech, a symptom of high blood-pressure and stroke. Supp. ROI, Ex. 14, at 15. In determining the amount of the award, we are guided by the principle that a compensatory damages award is limited to the sums necessary to compensate Complainant for the actual harm caused by the agency's discriminatory action, and attempt to affix a reasonable dollar value to compensate Complainant for that portion of emotional distress and related symptoms that were caused by the Agency's discrimination. See Webb v. U.S. Postal Serv., EEOC Appeal No. 0120070230 (Dec. 17, 2009) (citing EEOC Notice No. 915.002 (July 14, 1992) at 13). Here, we note that a portion of Complainant's emotional harm relates to her removal as well as other claims where no discrimination was found. Taking into account the evidence of non-pecuniary damages submitted by Complainant, we find the Agency's award of non-pecuniary, compensatory damages in the amount of $40,000 to be inadequate. Based on the above, we find that an award of $65,000 is warranted in this case. Our award takes into account the severity of the harm suffered, and is consistent with prior Commission precedent. See, e.g., Bostick v. Social Sec. Admin., EEOC Appeal No. 0720120021 (Jan. 16, 2013) ($50,000 in non-pecuniary damages awarded where complainant suffered mental anguish, migraine headaches, depression, bleeding ulcer and stroke following discrimination); Ward-Jenkins v. Dep't of the Interior, EEOC Appeal No. 01961483 (March 4, 1999) ($50,000 in non-pecuniary damages awarded where complainant was reassigned, harm done by discrimination was aggravation of pre-existing condition, and complainant contemplated suicide); Bernard v Dep't of Veterans Affairs, EEOC Appeal No. 01966861 (July 17, 1998) ($80,000 awarded when agency failed to select complainant for lateral reassignment, which resulted in trouble sleeping, irritability, anger, humiliation, fear, moodiness, and embarrassment). We note that damage awards for emotional harm are difficult to determine, and there are no definitive rules governing the amount to be awarded in given cases. As noted above, however, a non-pecuniary damage award must be consistent with awards made in similar cases. We find that an award of $65,000 is more appropriate in this case.3 CONCLUSION Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we MODIFY the Agency's final decision. The Agency is directed to comply with the ORDER below. ORDER To the extent that it has not already done so, the Agency is ordered to take the following remedial action: Within sixty (60) calendar days of the date this decision becomes final, pay Complainant $65,000 in non-pecuniary compensatory damages. 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 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. ATTORNEY'S FEES (H0610) If Complainant has been represented by an attorney (as defined by 29 C.F.R. § 1614.501(e)(1)(iii)), 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. 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 21, 2014 Date 1 Complainant did not appeal the Agency's August 30, 2010, decision to the Commission. 2 On December 21, 2010, the Agency modified its final decision, noting that Complainant was not entitled to back pay. 3 On appeal Complainant contends that the Agency erroneously denied her claim for back pay. However, we find that Complainant is not entitled to back pay here. We note that no discrimination was found with with respect to disability accommodation or termination. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ 2 0120113346 U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 2 0120113346