Complainant, v. Eric K. Shinseki, Secretary, Department of Veterans Affairs, Agency. Appeal No. 0120123309 Agency No. 200406582005101165 DECISION On July 15, 2011, Complainant filed an appeal from the Agency's June 16, 2011 final decision on the issue of compensatory damages, concerning his 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. ISSUES PRESENTED The issue presented is whether the Agency properly determined that Complainant was only entitled to $20,540.00 in compensatory damages. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a GS-6 prosthetic clerk at the Agency's facility in Salem, Virginia. The record reveals that Complainant has worked for the Agency since 1982. Before becoming a prosthetic clerk, Complainant worked with the Agency as a nursing assistant, supply clerk/supply technician, and a purchasing agent. Complainant previously engaged in EEO activity in 1985, 1992, 1994, and 1998. The issue presented in the underling complaint was whether the Complainant was discriminated against based on race, sex, and reprisal (prior EEO activity) on January 19, 2005, when he was not selected for the position of Prosthetic Representative, GS-672-7, target 9, under Vacancy Announcement Number 04-219. On September 20, 2007, an EEOC Administrative Judge issued a decision finding that the Complainant was not discriminated against, and on October 15, 2007, the Agency issued a final action which accepted and implemented the decision. On appeal, the EEOC reversed the Department's final action, in part, finding that Complainant was discriminated against based on race and sex when he was not-selected for the Prosthetic Representative position. EEOC Appeal No. 0120080458 (Sept. 29, 2009). On November 3, 2009, the Agency requested reconsideration, which the EEOC denied in a decision dated March 11, 2010. EEOC Request No. 0520100087 (March 11, 2010). In the September 29, 2009 decision, among other remedies, the EEOC directed the Agency to conduct a supplemental investigation to determine Complainant's entitlement to compensatory damages. On May 20, 2010, the Agency's Office of Employment Discrimination Complaint Adjudication (OEDCA) notified Complainant of his right to submit a claim for compensatory damages and requested the Agency's Office of Resolution Management (ORM) to conduct the damages investigation. Complainant asserted that he was entitled to compensatory damages in the amount of $76,600.00 due to the Department's discriminatory conduct.1 ORM submitted its investigative report on compensatory damages on September 30, 2010. On December 29, 2010, OEDCA remanded the damages investigation to ORM for additional information. OEDCA received the completed compensatory damages investigation on February 10, 2011. In its decision, the Agency awarded Complainant a total of $20,540.00 in compensatory damages. The Agency awarded Complainant $20,000.00 in non-pecuniary compensatory damages. The Agency found that precedent cases indicate that a lower award was appropriate in this case. The Agency concluded that while Complainant's damages appeared to be relatively severe and of long duration, and required treatment by medical and mental health professionals, they were caused, or aggravated to a very large degree by non-discriminatory factors. The Agency found that over-riding consideration in this case was the very limited impact of the discriminatory non-selection to Complainant's conditions. Complainant was awarded $540.00 in pecuniary compensatory damages to cover the cost of future counseling expenses for the Agency's role in exacerbating, to a limited degree, Complainant's pre-existing conditions. The Agency found a psychologist's letter sufficient to establish that Complainant will likely need additional counseling sessions. The estimate was that Complainant would need two sessions per month for six months, at an approximate cost of $1620.00. Complainant established that the cost of the counseling was $1,080.00, or $90.00 per session for two sessions per month for six months. In light of the Agency's very limited liability for the damages suffered by Complainant, he was awarded one half of that amount for future counseling expenses. The Agency found that Complainant failed to provide any evidence to support his claim for past pecuniary losses, and that it was unable to provide relief for "claimed" losses. The Agency considered Complainant's claims for costs in conjunction with his request for attorney's fees. 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 Chapter 9, § VI.A. (November 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 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)). Non-pecuniary Compensatory Damages 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. Complainant requested $75,000.00 for non-pecuniary losses. Complainant claimed that the discriminatory non-selection "upset" him. Specifically, he said the non-selection caused mental and emotional distress, physical pain, mood changes, headaches, loss of appetite, sleep disturbances, relationship issues with his wife and son, social withdrawal, anxiety, disruption of daily activities, inconvenience, humiliation, and loss of enjoyment of life. He contends the non-selection caused him "a lot of anguish, stress, emotional distress as well as mental distress, mood changes, headaches, loss of appetite, sleeplessness, and just functions in [his] daily activities." Complainant stated that when he was informed of his non-selection he was "upset," and that he thought about it for a week, and went to talk with his supervisor to find out why he was not selected. Complainant contends that there was a lot of back and forth but that he never got the information he wanted regarding the reasons for the non-selection. Complainant submitted affidavits from himself and his spouse; and statements from his sister, sister-in-law, three co-workers, his spouse's physician, and his own psychologist, in support of his compensatory damages claim. He also submitted medical progress notes from January 5, 2001 to August 26, 2010. The Commission applies the principle that "a tortfeasor takes its victims as it finds them." See Wallis v. U.S. Postal Serv., EEOC Appeal No. 01950510 (Nov. 13, 1995) (quoting Williamson v. Handy Button Mach, 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); Finlay v. U.S. Postal Serv., EEOC Appeal No. 01942985 (April 29, 1997). The Commission notes, therefore, that Complainant is entitled to recover damages only for injury, or additional injury, caused by the discrimination. See Terrell v. Dep't of Housing & Urban Dev., EEOC Appeal No. 01961030 (October 25, 1996); EEOC Notice No. N 915.002 at 12. The record indicates that Complainant attributed his elevated stress to many factors. Complainant's testimony, his spouse's testimony, and the physician notes all indicate that Complainant has battled with depression many years before the non-selection. Complainant was first diagnosed with depression in 2000 or 2001. His depression has been treated with medication, and Complainant stated that his prescriptions have changed over the years (his dosages have also increased). Complainant also acknowledged that he started receiving psychological treatment in 2004, over a year before the non-selection, and he stated that he began receiving medical treatment long before that in 1975, for a service-connected headache condition. Complainant's principal argument is the non-selection aggravated his mental and physical conditions. In determining whether the amount of the award granted in this case was reasonable, we are guided by the principle that a compensatory damages award is limited to the amounts necessary to compensate Complainant for the actual harm caused by the agency's discriminatory action. We 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. 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 $20,000.00 to be reasonable. The Commission has supported compensatory damages awards for similar amounts in cases where similar harm has occurred. See Jambora vs. U.S. Postal Serv., EEOC Appeal No. 07A40128 (May 16, 2006) (Complainant awarded $20,000 when experienced emotional stress, confusion, and episode of blacking out. Complainant suffered from depressed mood and an inability to sleep without medication. Complainant had a reduced interest in relationships, and the spouse confirmed these allegations.); and Peebles v. U.S. Postal Serv., EEOC Appeal No. 01A31967 (June 3, 2004), request for reconsideration denied, EEOC Request No. 05A40965 (Aug. 2, 2004) (Statements of family, friends, co-workers and doctors confirmed that discrimination caused severe emotional stress, turmoil, and mental anguish. Psychiatrist noted that complainant experienced anxiety and was upset. Complainant's mother stated that the discrimination caused stress and depression which caused complainant's hospitalization. The record confirmed other contributing factors.) Pecuniary Compensatory Damages Pecuniary losses include quantifiable out-of-pocket expenses that are incurred as a result of the discriminatory conduct. To recover damages, the complaining party must prove that the employer's discriminatory act or conduct was the cause of his loss. 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). With regard to Complainant's request for pecuniary damages for future therapy sessions, we find that the Agency properly determined that one half of the amount it would cost Complainant for six months of counseling ($540.00) was reasonable in light of its determination of how much the discrimination impacted his pre-existing conditions. The record reflects that there was already plan in place to begin family counseling prior to the non-selection. Based on a thorough review of the record, including those not specifically addressed herein, we AFFIRM the Agency's final decision regarding the compensatory damages award in this matter. ORDER Within 120 days of this decision becoming final, the Agency shall issue a check in the amount of $20,540.00 to Complainant. A copy of the check shall be sent to the Compliance officer listed below. 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 _____7/30/14_____________ Date 1 Complainant claimed $75,000.00 for non-pecuniary losses, $100.00 for past pecuniary losses, and $1500.00 for future pecuniary losses. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ 2 0120123309 U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 2 0120123309