Complainant, v. Jacob J. Lew, Secretary, Department of the Treasury (Internal Revenue Service), Agency. Appeal No. 0120133266 Agency No. IRS-CC-09-0985F DECISION Complainant filed an appeal from the Agency's September 12, 2013 Final Decision concerning the compensatory damages awarded to her following a finding of discrimination in violation of Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq. For the following reasons, the Commission MODIFIES the Agency's Final Decision awarding Complainant $7,000 in nonpecuniary, compensatory damages and denying her claim for past pecuniary damages. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Legal Assistant at the Agency's Tax and Finance facility in Michigan. Complainant filed an EEO complaint alleging that the Agency discriminated against her on the bases of race, disability, and in reprisal for prior protected EEO activity under Section 501 of the Rehabilitation Act of 1973 when: 1. Since August 2003, and continuing, management failed to provide Complainant with a reasonable accommodation of a reduced workload and lifting assignments within her medical restrictions. 2. On September 17, 2009, Complainant's workload increased and she was assigned higher-grade (GS-7) duties. 3. In October 2009, despite Complainant's seniority, Complainant was not offered an opportunity to move into a newer and larger work area. 4. In November 2009, Complainant received a lowered annual performance evaluation. 5. On March 9, 2010, S1 threatened Complainant with disciplinary action for not immediately returning a handicapped parking key card. The Agency issued a Final Decision finding no discrimination. Complainant appealed the Agency's Final Decision. In Complainant v. Dep't of the Treasury, EEOC Appeal No. 0120110751 (Apr. 19, 2013), the Commission found the Agency discriminated against Complainant as alleged in claims (1) and (5) on the basis of disability. The Commission concurred with the Agency that Complainant did not establish discrimination for the remainder of the complaint. The Commission ordered the Agency to provide Complainant with remedies including an opportunity to submit evidence in support of any claim for compensatory damages. In a Final Decision dated September 12, 2013, the Agency awarded Complainant $7,000 in nonpecuniary, compensatory damages. The Agency denied Complainant's request for pecuniary damages. The instant appeal followed. On appeal, Complainant requests that the Commission reverse the Agency's denial of pecuniary damages, stating that she has mitigated the medical bills she incurred as a result of the exacerbation of her disability due to the stress caused by the Agency's discrimination. Complainant requests that the Commission award her $1,500 in pecuniary damages. Complainant further states that pain and suffering she has endured because of the Agency's discriminatory actions warrant an award of nonpecuniary damages of $300,000. ANALYSIS AND FINDINGS As a preliminary matter, we decline to consider Complainant's request for back pay, restoration of leave, a higher performance evaluation, and promotion. We note that our prior decision, Appeal No. 0120110751, provided Complainant with her right to appeal the Commission order for corrective action. We find that neither party appealed that decision and that the instant appeal concerns only the Agency's Final Decision regarding compensatory damages. After establishing entitlement to an award of compensatory damages, there is no precise formula for determining the amount of damages for nonpecuniary 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 Treas., EEOC Appeal No. 01955789 (Aug. 29, 1997). It should likewise be consistent with amounts awarded in similar cases. See Hogeland v. Dep't of Agr., EEOC Appeal No. 01976440 (June 14, 1999). Nonpecuniary, compensatory damages are designed to remedy a harm and not to punish the Agency for its discriminatory actions. Furthermore, compensatory damages should not be motivated by passion or prejudice or be "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 (March 4, 1999). In the instant case, we find that Complainant properly submitted evidence regarding her damages to the Agency in response to the Agency's request. Nonpecuniary damages In support of her claim for an award to compensate her for the pain and suffering she endured due to discrimination, Complainant supplied statements from herself, a co-worker, and two relatives. Complainant stated that the Agency's failure to accommodate her disability (multiple sclerosis) exacerbated her medical condition. Complainant stated that she became anxious and depressed about the state of her health. Complainant stated she was fearful that she would experience more seizures. Complainant added that she experienced pain and unstable blood pressure. Complainant stated that when the Agency continued to ask for medical information, she experienced desperation, humiliation, depression, anguish, anxiety, and despair. Additionally, she stated that she experienced an increase in muscle spasms, sleeplessness, and crying spells. Witnesses confirmed a negative change in Complainant's overall disposition during the time that the Agency failed to accommodate Complainant. We find that Complainant has sufficiently described her symptoms, the aggravation of her existing medical condition, as well as the impact the discrimination had upon her emotional wellbeing. Based on our review of the evidence, we find that the Agency's award of $7,000 in nonpecuniary, compensatory damages is inconsistent with what the Commission has awarded in similar cases. We find that an award in the amount of $10,000 in nonpecuniary, compensatory damages would be more appropriate in the instant case. See Zehe v. Nat. Aeronautics and Space Admin., EEOC Appeal No. 0120113282 (Mar. 26, 2013) ($10,000 nonpecuniary damage award where complainant suffered from a loss of enjoyment of life, fear of losing his job, loss of appetite, insomnia, nightmares, and panic attacks caused by the stress of a long commute, when the Agency failed to provide accommodations in the form of telework following multiple seizures Complainant experienced in the presence of coworkers); Rowan v. Dep't of Veterans Affairs, EEOC Appeal No. 0120070384 (June 19, 2009) ($10,000 nonpecuniary damage award where complainant established that at least some of his stress, humiliation, anxiety, sleeplessness, fears of termination, and depression were attributable to the discriminatory conduct). Accordingly, we conclude that an award of $10,000 will adequately compensate Complainant for the harm she suffered as a result of the Agency's failure to reasonably accommodate her disability. We note that this sum is meant to compensate Complainant for the emotional distress she suffered, which was caused by the Agency's discriminatory actions. Finally, this amount meets the goals of not being motivated by passion or prejudice, not being "monstrously excessive" standing alone, and being consistent with the amounts awarded in similar cases. See Cygnar v. City of Chicago, 865 F.2d 827, 848 (7th Cir. 1989) Pecuniary damages Damages for past pecuniary damages will not normally be sought without documentation such as receipts, records, bills, cancelled checks, or confirmation by other individuals, or other proof of actual losses or expenses. See Compensatory and Punitive Damages Available Under Section 102 of the Civil Rights Act of 1991 (July 14, 1992) (available at www.eeoc.gov.) In support of her request for past pecuniary damages, Complainant presented the Agency with copies of medical statements from her insurer from 2005 through 2011,1 as well as a statement from a hospital for physical therapy services ($2,456.70) in 2011. In her own statement, Complainant describes her need for physical therapy in connection with the worsening of her condition caused by the Agency's failure to accommodate her disability. We observe that Complainant did not submit any explanation from a health care official specifying the charges for treatment of Complainant's symptoms that are related to Agency actions. We find that from the record that it is not possible to determine which specific charges, if any, relate to the discrimination. We find the evidence does not support an award of past pecuniary damages. For that reason, we deny Complainant's request for past pecuniary damages. CONCLUSION Based on a thorough review of the record, we MODIFY the remedial relief provided by the Agency and we REMAND the complaint to the Agency to implement the remedial action set forth in the Order herein. ORDER To the extent it has not already done so, the Agency shall take the following remedial action: Within 30 days of the date this decision becomes final, the Agency shall pay Complainant the amount of $10,000 in nonpecuniary, compensatory damages, less any sums previously paid to Complainant for nonpecuniary damages in connection with the instant complaint. 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 complete supporting documentation verifying that the corrective action has been implemented. 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. 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 March 25, 2015 __________________ Date 1 No total appears on the multipage summary of assorted charges, but the charges appear to total in the thousands of dollars. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ 2 0120133266 U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 2 0120133266