Sana I., Complainant, v. Carolyn W. Colvin, Acting Commissioner, Social Security Administration, Agency. Appeal No. 0120132400 Agency No. PHI-08-0694-SSA DECISION On May 17, 2013, Complainant filed an appeal from the Agency's April 5, 2013, final decision concerning the award of compensatory damages following the Commission's finding that the Agency denied her a reasonable accommodation in violation of Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq. The Commission deems the appeal timely and accepts it pursuant to 29 C.F.R. § 1614.405(a). BACKGROUND At the time of events giving rise to this complaint, Complainant worked as an Administrative Assistant at the Agency's Office of Disability Adjudication Review in Morgantown, West Virginia. On November 19, 2008, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the bases of race (Black), disability (depression, anxiety, seasonal affective disorder, sleep apnea, extreme hair loss, obesity, carpal tunnel in her left arm, and congenital missing right forearm/hand), and reprisal for prior protected EEO activity under Section 501 of the Rehabilitation Act of 1973. The Agency accepted the complaint and defined the claims as the following: 1. in August 2008, management rescinded the reasonable accommodations that allowed her to work a flexible schedule from 10:30 a.m. to 7:00 p.m.;1 2. on July 25, 2008, management did not allow her to work compensatory time and prohibited her from working overtime; 3. after June 23, 2008, she learned that she was not included in a group award that was given to most of her co-workers; and 4. she was not selected to receive training that would have qualified her to serve as back-up to the Hearing Office System Administrator. Complainant indicated that she learned of this in early July 2008, when management made the training available to her coworker, and not her. The Agency issued its final decision finding no discrimination. Complainant appealed that decision to the Commission. In Lamb v. Social Security Administration, EEOC Appeal No. 0120103232 (March 21, 2012), the Commission found that the Agency improperly defined claims (1) and (2) as separate matters. Instead, the Commission determined that these two issues constituted a single claim of discrimination. Specifically, Complainant alleged that she was denied a reasonable accommodation when, starting in July 2008, she was required to start work at 9:30 a.m. and was no longer permitted to earn credit time, compensatory time, or overtime. The decision noted that Complainant has been diagnosed with a number of medical conditions, including being born without a right hand, which resulted in her complete reliance on her left hand. Complainant developed carpal tunnel syndrome in the left hand which has manifested itself as numbness and tingling sensation that radiated up her arm and into her shoulder. Based on the condition of Complainant's right hand, the Commission found that Complainant was an individual with a disability covered under the Rehabilitation Act. Further, the decision determined that the Agency failed to provide Complainant with an effective accommodation when it did not allow her to continue to earn and use credit time so that Complainant could work from 10:00 a.m. to 6:30 p.m. as she had been for prior years. The Commission determined that Complainant did not establish that she was subjected to discrimination as alleged in claims (3) and (4). To remedy the discrimination, the Commission ordered, among other things, that the Agency provide Complainant with the requested reasonable accommodation; restore any leave used; and conduct a supplemental investigation regarding Complainant's claim for compensatory damages. The Agency requested reconsideration. The Agency's request was denied in Lamb v. Social Security Administration, EEOC Request No. 0520120399 (Oct. 10, 2012). In November 2012, the Agency assigned an investigator (Investigator) to conduct a supplemental investigation regarding Complainant's claim for compensatory damages for the Agency's failure to provide her with the reasonable accommodation from August 2008 to December 2012, when the Agency finished the investigation. The Investigator received an affidavit from Complainant regarding the harm she experienced. The Investigator also collected medical documents from Complainant and her physician (Physician) regarding Complainant's worsening condition following the Agency's failure to provide the requested reasonable accommodation. Complainant indicated that the denial of accommodation harmed her emotional and physical well-being. She was not been able to exercise as much as she did previously, and the abrupt manner of the denial exacerbated her depressive illness, as well as caused her anxiety, increased hair loss, sleep disturbances and nightmares for over three years, and headaches. She states that she began taking an anti-depressant drug due to the denial of reasonable accommodation on or about October 2009, and that the dosage had to be increased in August 2012 and again in November 2012. The Physician stated that the denial of the reasonable accommodation has caused much distress and worsening of Complainant's symptoms of depression. She also noted that she was also grieving the loss of her niece for whom she cared. In addition to the emotional and physical harm, Complainant also asserted that she was economically harmed by the Agency's action. Complainant asserted that she has not been able to work a full 40-hour week since August 2008 and therefore has been unable to earn her full salary. She contended that she had to use earned leave and leave without pay (LWOP) to cover the 2.5 hours per week that she was no longer able to cover with credit hours. She maintains the denial of a reasonable accommodation has resu1ted in the exhaustion of her accrued leave and having to take LWOP when leave was needed to care for her niece, seek medical care, etc. In addition, she states she has sometimes been charged as absent without leave (AWOL) for legitimate absences. Additionally, she asserts that her sleep medication, which she began taking due to the discrimination, sometimes caused her to oversleep. As a result, she incurred additional LWOP or AWOL charges and additional lost pay. She provided documents showing that she had to withdraw funds from her Thrift Savings Program (TSP) account to replace her lost wages. Following the investigation, the Agency issued its decision regarding her entitlement to compensatory damages. As to Complainant's claim for non-pecuniary damages, the Agency restated Complainant's evidence that the abrupt change in her schedule caused by the discontinuation of her reasonable accommodation exacerbated her depressive illness; caused her to start taking antidepressants; and resulted in anxiety, increased hair loss, sleep disturbances, headaches, and more frequent visits to her physician and therapist. She averred to her need for medications for sleep and, in 2012, for muscle spasms, headaches, and related symptoms. The Agency noted that the Physician confirmed that Complainant was referred to a psychologist and that she continued to see a therapist in 2012. He indicated that the grief from her niece's death compounded Complainant's mood disorder; noting that her antidepressant medication was increased. According to the Physician, if Complainant had been provided with her requested accommodation of a flexible schedule, the Physician felt she would have been able to continue caring for her disabled niece, continue to exercise, and would have had improvement in her depression, sleep patterns, and weight control. Based on this evidence and the Commission's prior precedents, the Agency found that Complainant was entitled to $50,000.00 in non-pecuniary damages. As to Complainant's claim for pecuniary losses, the Agency found that Complainant had not established a nexus between the discrimination and her withdrawal of funds from her TSP. As such, the Agency denied Complainant's request for reimbursement of those withdrawals and interest. Further, to the extent Complainant sought payment for LWOP and restoration of leave, the Agency noted that the Agency had already awarded back pay to Complainant in compliance with the Commission's decision and provided the calculations to the Commission's compliance officer. Therefore, the Agency maintained that Complainant was already reimbursed to leave without pay used as a result of the discrimination, as well as had related leave restored. Accordingly, the Agency only awarded Complainant the $50,000.00 in non-pecuniary losses. CONTENSIONS ON APPEAL This appeal followed. On appeal, Complainant's attorney asserted that Complainant was entitled to $300,000.00 in non-pecuniary compensatory damages. He argued that this amount was in line with jury awards for similar cases. He also noted that the Agency did not challenge Complainant's asserted harm or the Physician's support of Complainant's injury due to the Agency's violation of the Rehabilitation Act. He claimed that the conditions were interconnected causing Complainant to become further depressed, as well as exacerbations of the manifestations of her other medical conditions. Further, he sought $67,550.00 for Complainant to reimburse her for the value of leave taken as a consequence of the agency's misconduct, and another $30,000.00 to compensate her for having to prematurely draw down her TSP account to make up for the reduced income. ANALYSIS AND FINDINGS Legal Standards for an Award of Compensatory Damages Pursuant to section 102(a) of the Civil Rights Act of 1991, a complainant who establishes his or her claim of unlawful discrimination may receive, in addition to equitable remedies, compensatory damages for past and future pecuniary losses (i.e., out of pocket expenses) and non-pecuniary losses (e.g., pain and suffering, mental anguish). 42 U.S. C. § 1981a(b)(3). For an employer with more than 500 employees, such as the agency, the limit of liability for future pecuniary and non-pecuniary damages is $300,000. Id. The particulars of what relief may be awarded, and what proof is necessary to obtain that relief, are set forth in detail in EEOC Notice No. 915.002, Compensatory and Punitive Damages Available Under Section 102 of the Civil Rights Act of 1991 (July 14, 1992). Briefly stated, the complainant must submit evidence to show that the agency's discriminatory conduct directly or proximately caused the losses for which damages are sought. Id. at 11-12, 14; Rivera v. Dep't of the Navy, EEOC Appeal No. 01934157 (July 22, 1994). The amount awarded should reflect the extent to which the agency's discriminatory action directly or proximately caused harm to the complainant and the extent to which other factors may have played a part. EEOC Notice No. N 915.002 at 11-12. The amount of non-pecuniary damages should also reflect the nature and severity of the harm to the complainant, and the duration or expected duration of the harm. Id. at 14. In Carle v. Dep't of the Navy, the Commission explained that "objective evidence" of non-pecuniary damages could include a statement by the complainant explaining how he or she was affected by the discrimination. EEOC Appeal No. 01922369 (Jan. 5, 1993). 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 complainant could also submit documentation of medical or psychiatric treatment related to the effects of the discrimination. Id. Non-pecuniary damages must be limited to the sums necessary to compensate the injured party for the actual harm and should take into account the severity of the harm and the length of the time the injured party has suffered from the harm. Carpenter v. Dep't of Agric., EEOC Appeal No. 01945652 (July 17, 1995). Nexus Between Alleged Harm and Discrimination Pecuniary As an initial matter, we note that Complainant argued that she should have been provided with additional reimbursement for the use of leave or LWOP, the Agency has indicated that it has calculated that amount and issued Complainant payment as part of her equitable relief. As noted by the Agency, restoration of leave so used is not available as a component of compensatory damages because restoration of leave constitutes an equitable remedy. Whiting v. ACTION, EEOC Request No. 05900093 (June 27, 1990); McGowan-Butler v. Dep't of the Treasury, EEOC Request No. 05940636 (September 9, 1994). In compliance with this Commission's original order finding discrimination, the Agency provided copies of its compliance report stating that it paid Complainant $ 3,092.40 in back pay for her use of leave and LWOP. If Complainant wished to challenge the Agency's calculations of the amounts owed her for leave use, she needed to have raised the matter with the Commission's Compliance Officer or in a Petition for Enforcement. However, she did not do so, and has not currently established that the Agency's award of back pay for her use of leave and LWOP was incorrect. Complainant also requested reimbursement for her need to withdraw TSP funds because she lost wages when she had to take LWOP. In support of her assertion, Complainant provided the TSP statements and argued that she had to withdraw some $ 67,550.00. As noted above, the Agency has provided back pay to Complainant for her lost back pay in the amount of $ 3,092.40. There is a significant difference between the amounts the Agency calculated as losses for Complainant as compared to the amount she withdrew from her TSP account. Complainant stated that she had to withdraw money to cover her costs of living, due to the effects of the denial of accommodation. She asserted that but for the denial of accommodation; she would not have had to make these withdrawals. She argued that the lack of an accommodation resulted in missing work and losing salary, and that this shortfall in income caused these financial losses to be compounded (late fees, medical costs, etc.). However, she did not provide documentation to support the losses. As such, we find that Complainant has not established a nexus between her purported pecuniary losses and the Agency's discriminatory action. Non-pecuniary The Agency found that Complainant established that she was harmed by the Agency's failure to provide her with a reasonable accommodation. As such, there is no issue as to the nexus between the harm indicated by Complainant and the Agency's discriminatory action. Calculation of Non-pecuniary Damages Complainant has claimed that she should be awarded $300,000.00 in non-pecuniary compensatory damages. Complainant was denied a reasonable accommodation from August 2008 through at least December 2012, a more than four-year period. She asserted that the Agency's denial of the reasonable accommodation further exacerbated her depressive illness; caused her to start taking antidepressants; and resulted in anxiety, increased hair loss, sleep disturbances, headaches, and more frequent visits to her physician and therapist. She averred to her need for medications for sleep and, in 2012, for muscle spasms, headaches, and related symptoms. She provided the Physician's letter to corroborate her assertions. The Physician noted that Complainant had to be placed on additional medication and that the Agency's action resulted in the worsening of her medical conditions. The Agency did not challenge the evidence provided by either the Physician or Complainant. We further note that, during this time, Complainant had additional stress in her personal life. Complainant became the guardian for her disabled niece in September 2008. Complainant asserted that this made the need for the accommodation even more important for her. Complainant stated that caring for her niece did not make things worse for her, and that she found it to be therapeutic. She asserted that her depression was related solely to her work situation. However, starting in late 2010, Complainant determined that she could no longer care for her niece and she was placed in an assisted living center. The niece passed away on June 25, 2012. The note from the Physician also indicated that Complainant assumed care for her disabled niece, and noted that this added to the time she needed to prepare in the mornings and supported her request for a later start time. The Physician stated that the grief from the death of her niece compounded Complainant's mood disorder, and after that her antidepressant medication was increased. As noted above, the Agency did not challenge the affidavit provided by Complainant or the letter submitted by the Physician. Upon review, we find that evidence supports a finding that the niece's death had impacted Complainant's medical condition. This occurred in June 2012. We note that Complainant and the Physician both cite the Agency's failure to provide Complainant with a reasonable accommodation as the reason for the deterioration of Complainant's medical condition. The record showed that Complainant was denied the requested accommodation from August 2008 through at least December 2012, well over four years. The death of her niece only occurred in the last six months of this time period. As such, we find that while the loss of her niece did contribute to her depression, it was the Agency's failure to accommodate Complainant that caused the greater harm to Complainant's well-being. Taking into account the evidence of non-pecuniary damages submitted by Complainant, we find her request for $300,000.00 to be excessive. However, we find that the Agency's award of $50,000.00 is not sufficient in light of the length of time that the unlawful failure to accommodate continued and the extent of the harm caused. Based on the evidence of record concerning the discrimination and the harm that resulted, as well as the non-discrimination related effects of the death of her niece, the Commission finds that Complainant is entitled to non-pecuniary damages in the amount of $100,000.00. The Commission has awarded comparable amounts in other cases similar to this. See Sainz v. Department of the Treasury, EEOC Appeal No. 0720030103 (September 19, 2008) (complainant awarded $100,000 in non-pecuniary damages when the agency's unlawful failure to accommodate resulted in complainant's discharge from employment, which caused ongoing depression, low self-esteem, financial difficulties, humiliation and weight gain); Villanueva v. Department of Homeland Security, EEOC Appeal No. Appeal No. 01A34968 (August 10, 2006) (complainant awarded $90,000 in non-pecuniary damages for sleeplessness, high stress and anxiety, loss of concentration and memory, and low self esteem, as evidenced by complainant's testimony and psychotherapist visits.); Dildly v. Department of Veterans Affairs, EEOC Appeal No. 07A40115 (March 24, 2005), request for reconsideration denied, EEOC Request No. 05A50787 (July 22, 2005) (complainant awarded $100,000 in non-pecuniary damages for continued failure to provide a reasonable accommodation for more than 18 months, resulting in extreme distress, gastrointestinal issues, depression, and deteriorating health.) 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 and REMAND the matter for further processing in accordance with the ORDER below. ORDER (C0610) The Agency is ordered to pay Complainant $100,000.00 in non-pecuniary damages. The Agency shall complete this order within 60 calendar days from the date on which the decision becomes final. The Agency is further directed to submit a report of compliance, as provided in the statement entitled "Implementation of the Commission's Decision." The report shall include supporting documentation verifying that the corrective action has been implemented. ATTORNEY'S FEES (H0610) If Complainant has been represented by an attorney2 (as defined by 29 C.F.R. § 1614.501(e)(1)(iii)), he 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 (T0610) This decision affirms the Agency's final decision/action in part, but it also requires the Agency to continue its administrative processing of a portion of your complaint. 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 on both that portion of your complaint which the Commission has affirmed and that portion of the complaint which has been remanded for continued administrative processing. 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 your appeal with the Commission, until such time as the Agency issues its final decision on your complaint. 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 February 19, 2014 __________________ Date 1 We note that the Agency defined the schedule as "10:30 a.m. to 7:00 p.m." However, the record indicated that Complainant actually requested a fixed schedule from "10:00 a.m. to 6:30 p.m." as a reasonable accommodation. 2 The record indicated that the Attorney represented Complainant during the compensatory damages investigation and initially on appeal. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ 2 0120132400 U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 2 0120132400