U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Dayle H.,1 Complainant, v. Robert McDonald, Secretary, Department of Veterans Affairs, Agency. Appeal No. 0120140883 Agency No. 2004-0688-2010103661 DECISION Complainant filed an appeal, pursuant to 29 C.F.R. § 1614.403(a), from the Agency's August 30, 2013 final decision (FAD) concerning her award of compensatory damages. The Agency, in a December 28, 2012 Final Decision, found that Complainant had been discriminated against on the basis of disability with regard to the denial of a reasonable accommodation when management failed to provide her with an ergonomic workstation during the time she was reassigned to the Dental Service. In the subsequent August 30, 2013 FAD, Complainant was awarded pecuniary and non-pecuniary compensatory damages. For the following reasons, the Commission MODIFIES the August 30, 2013 FAD regarding Complainant's award of compensatory damages. ISSUE PRESENTED The issue presented is whether the Agency correctly provided Complainant with an appropriate amount in compensatory damages. BACKGROUND Complainant worked as a Librarian Technician at the Agency's VA Medical Center in Washington, D.C. In 2008, Complainant was provided with an ergonomic workstation, keyboard and chair as a reasonable accommodation for her Carpel Tunnel Syndrome (CTS) and sciatica. At that time, Complainant was located in the Library. On July 18, 2010, however, Complainant was detailed to the Dental Service, and her ergonomic workstation, keyboard and chair were not transferred with her to the new location. Complainant requested a reasonable accommodation several times for an ergonomic workstation and provided medical documentation to support her requests. On September 24, 2010, an ergonomic evaluation was performed at Complainant's workstation which recommended providing her with an ergonomic workstation, keyboard and chair. Nevertheless, management did not provide Complainant with these accommodations during her detail. On August 4, 2011, Complainant returned to her position in the Library where she was provided with the ergonomic workstation, keyboard and chair. Complainant testified that before she was detailed to the Dental Service she "had no problems [with] my hands because I had an ergonomic workstation." Complainant testified that she retired shortly after she underwent surgery on her right hand in March 2012. Complainant further testified that she was not ready to retire. Complainant maintained that she had to retire because her doctor told her she was going to "lose [her] hands completely." Complainant filed a formal complaint alleging that she was discriminated against on the bases of sex (female), age (year of birth 1946), and disability (physical) when: (1) management failed to provide her with an ergonomic workstation as a reasonable accommodation when she was reassigned to the Dental Service on July 18, 2010; and (2) she was subjected to hostile work environment harassment as evidenced by five events that occurred from May 7, 2010 to June 18, 2012. As noted above, the Agency found that Complainant was discriminated against based on disability with regard to allegation (1). The August 30, 2013 FAD later found that Complainant was entitled to $30,000 in non-pecuniary compensatory damages and $2,048 in pecuniary damages. This appeal followed. CONTENTIONS ON APPEAL On appeal, Complainant contends, among other things, that the Agency erred in awarding her only $30,000 in non-pecuniary compensatory damages. According to Complainant, she should have been awarded $40,000 at a minimum because that amount was consistent to that awarded in similar cases. Complainant, however, maintains that $100,000 should have been awarded because she had to retire as a result of the Agency's denial of her request for accommodation. Complainant argues that the Agency improperly suggested that she had contemplated retiring in May 2010 and June 8, 2010; and that her retirement was not based on the Agency's actions. She maintains that the fact she had considered retirement in the past was not probative in determining the motivation for her actual decision to retire years later. Complainant maintains that she retired due to her continued pain and her doctor's comment that she would "loose her hands completely" if she continued to work. Further, Complainant requests that she be reinstated, the responsible Agency officials be provided training and that the Agency be ordered to post a notice indicating that it had discriminated against her. In response, the Agency, among other things, requests that the FAD be affirmed. 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. (Aug. 5, 2015) (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 At the outset, we note that there is no dispute over the Agency's award of $2,048 in 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 to punish the agency for the discriminatory action. 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 (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 her 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 has CTS, sciatica, and peripheral artery disease. The impairments are permanent. The undisputed evidence is that, as a result of the Agency's discrimination, Complainant suffered from stress, nervousness and anxiety. Complainant had to have surgery on her wrist as a result of the Agency not providing her with the ergonomic workstation that she requested as an accommodation several times. Upon her return from surgery, the Agency had still not complied with her request for an accommodation, although it appears that she had gone back to her original position at that point. Subsequently, she retired on March 30, 2012. Complainant indicated that her hypertension was exacerbated by the stress that she experienced at work when her accommodation requests were denied. After her physician recommended therapy, Complainant met with her Pastor and went to church to help alleviate her stress. Complainant maintained that her personality has changed, and she has become quieter and does not go out as much. According to Complainant, many of her symptoms and conditions have persisted to the present, including her sleeplessness. She has been unable to drive since 2010. Her brother has to drive her to the doctor, and her sister drives her to the grocery store and helps her put away groceries and with doing her laundry. She has difficulty turning the pages of books or magazines and writing her names on checks. The Agency in its FAD stated that "the Department did not provide a response or a rebuttal to Complainant's claim for non-pecuniary damages." Likewise, the Agency found that Complainant "has credibly testified to the duration and emotional distress that she experienced." Finally, the Agency acknowledged that "[C]omplainant proved that the above-described emotional distress and related symptoms were caused by the discriminatory conduct . . . ." In determining the amount of the award, we are guided by the principle that a compensatory damages award is limited to the amount necessary to compensate a complainant for the actual harm caused by the Agency's discriminatory action, and attempt to affix a reasonable dollar value to compensate a complainant for that portion of the 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). Consequently, Complainant cannot recover compensatory damages for harm related to those claims where no discrimination was found. Taking into account however, the evidence of non-pecuniary damages submitted by Complainant for the denial of her reasonable accommodation request, we find the Agency's award of non-pecuniary, compensatory damages in the amount of $30,000 to be inadequate. The Agency's award is partly based on its determination that the duration of the harm that Complainant suffered from its discrimination was about one year, presumably July 2010 until her return to the Library in August 2011. We disagree. Complainant testified, testimony that the Agency found credible and for which it offered no rebuttal, that the duration of the harm that she suffered extended beyond a year and that some effects continue to the present. While we recognize that Complainant had some pre-existing conditions, the evidence shows that the discriminatory events at work exacerbated her conditions. While there is little medical evidence concerning the extent of that exacerbation, beyond the fact that she had to have surgery on her right hand, there is testimony from Complainant herself attesting to the negative psychological and physiological effects the events at work had on her. As such, we conclude that an award of $65,000 in non-pecuniary damages more appropriately compensates Complainant for the harm caused by the Agency. Our award takes into account the duration and severity of the harm suffered, and is neither "monstrously excessive" nor the product of passion or prejudice. We also find this amount is more consistent with the amount awarded in similar cases. See Lula N. v. Dep't of Veterans Affairs, EEOC Appeal No. 0120113346 (Mar. 21, 2014) ($65,000 where complainant acknowledged that she experienced health problems prior to the discrimination, but provided documentation indicating that her health worsened due to discrimination. Complainant experienced anxiousness, depression, crying, headaches, insomnia, and high blood pressure); Nia G. v. Dep't of Justice, EEOC Appeal No. 0120123467 (Apr. 3, 2015) ($50,000 in non-pecuniary damages for disability discrimination and retaliation, including the failure to provide reasonable accommodation, where Complainant testified that she suffered stress, shock and humiliation, which manifested itself in absences from work, headaches, rashes, weight fluctuations, depression, anxiety, insomnia, and nightmares). Accordingly, Complainant is awarded $65,000 in non-pecuniary compensatory damages and $2,048 in pecuniary damages. On appeal, Complainant also argued that: (1) she should have been reinstated; (2) the Agency should have been required to provide training to the responsible management officials; and (3) a notice should have been posted in the workplace informing employees of the finding of discrimination and the remedial actions ordered. We find that these matters are beyond the scope of the final agency decision at issue here. Complainant is reminded that in a 2014 decision concerning this complaint, the Commission ordered the Agency to provide the training and to post the notice that she is seeking. See EEOC Appeal Nos. 0720130015 and 0120132531 (Feb. 19, 2014). Likewise, we note the determination in that decision that there was no challenge of the Agency's December 28, 2012 finding that it discriminated against Complainant. Id. If Complainant wanted to challenge the Agency's remedy, by seeking reinstatement, then she should have done so during the appellate process of our prior decision or filed a request for reconsideration thereafter. 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 The Agency, to the extent it has not already done so, shall, within one hundred and twenty (120) calendar days of the date this decision becomes final, pay Complainant $65,000 in non-pecuniary compensatory damages; and $2,048 in pecuniary 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 (M0416) 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 Chap. 9 § VII.B (Aug. 5, 2015). All requests and arguments must be submitted to the Director, Office of Federal Operations, Equal Employment Opportunity Commission. The requests may be submitted via regular mail to P.O. Box 77960, Washington, DC 20013, or by certified mail to 131 M Street, NE, Washington, DC 20507. 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 (Z0815) If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may request permission from the court to proceed with the civil action without paying these fees or costs. Similarly, if you cannot afford an attorney to represent you in the civil action, you may request the court to appoint an attorney for you. You must submit the requests for waiver of court costs or appointment of an attorney directly to the court, not the Commission. The court has the sole discretion to grant or deny these types of requests. Such requests do not alter the time limits for filing a civil action (please read the paragraph titled Complainant's Right to File a Civil Action for the specific time limits). FOR THE COMMISSION: ______________________________ Carlton M. Hadden's signature Carlton M. Hadden, Director Office of Federal Operations ___1/17/17_______________ Date 1 This case has been randomly assigned a pseudonym which will replace Complainant's name when the decision is published to non-parties and the Commission's website. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ 2 0120140883 2 0120140883