U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Harry E.,1 Complainant, v. Ashton B. Carter, Secretary, Department of Defense (Defense Security Service), Agency. Appeal No. 0120141679 Agency No. DSS-10-001 DECISION Pursuant to 29 C.F.R. § 1614.405, the Commission accepts Complainant's appeal from the Agency's March 6, 2014 final decision concerning an equal employment opportunity (EEO) complaint alleging employment discrimination in violation of Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq. BACKGROUND During the period at issue, Complainant worked as an IT Specialist at the Agency's Office of the Chief Information Office in Alexandria, Virginia. On March 3, 2010, Complainant filed the instant formal complaint. Therein, Complainant claimed that the Agency discriminated against him on the basis of disability (hearing impairment) when: Agency management failed to provide him with a sign language interpreter during staff meetings on the following dates: November 3, 2009, January 19, 2010, and February 18 and 25, 2010. On August 19, 2011, the Agency issued a final decision on Complainant's denial of reasonable accommodation claim, finding no discrimination. The Agency determined that Complainant was a qualified individual with a disability. The Agency then acknowledged that Agency management "did not always accommodate the Complainant's requests for reasonable accommodation" but found that it had reasons for not providing an interpreter on those dates. On appeal, the Commission found that the Agency did not make a good faith effort to reasonably accommodate Complainant's disability on November 3, 2009, January 19, 2010, and February 18 and 25, 2010. Among other actions, the Commission ordered the Agency to conduct a supplemental investigation to determine entitlement to compensatory damages. EEOC Appeal No. 0120114330 (February 14, 2013), Agency's request for reconsideration denied, EEOC Request No. 0520130418 (August 30, 2013). On March 6, 2014, the Agency issued the instant decision on compensatory damages. The Agency noted that in regard to a request for pecuniary compensatory damages, Complainant submitted a letter from the Director of Alternative Solutions Center indicating that Complainant paid $985.00 for services rendered in May, June and December 2011. The Agency noted that the letter also states that Complainant had received psycho-therapeutic services since 2005 but there were no dates or payments with any causal link to November 3, 2009, January 19, 2010, and February 18 and 25, 2010, the dates the Agency failed to provide an interpreter. The Agency also acknowledged a $350.00 receipt Complainant submitted from a physician. The Agency found that this note did not outline the services and the dates that those services were provided but an attached letter indicated Complainant's medical diagnosis. The Agency noted that the physician did not state that Complainant's medical condition was due to discrimination at work, and did not provide any information as to the cause of the medical condition. Further, the Agency noted in her letter dated November 4, 2013, Complainant's wife stated that she and Complainant sought mental health counseling but Complainant had failed to establish any causal connection between the discrimination and the claimed expenses. Moreover, the Agency denied Complainant's request for past pecuniary damages. Regarding non-pecuniary damages, the Agency determined that the record established a causal link between the discrimination and the mental and emotional harm. The Agency found that Complainant had established through his statement and the statement of his wife and friend, that he experienced stress and frustration because of the Agency's failure to provide him a sign language interpreter. The Agency determined that Complainant was entitled to $6,000.00 in non-pecuniary compensatory damages. Further, the Agency noted in his bench decision dated August 22, 2013, an EEOC Administrative Judge (AJ) ordered an award of $2,000 per incident for Complainant where a sign language interpreter was not provided on February 8, 2011, May 3, 2011, June 22, 2011, and June 26, 2012. The AJ also awarded $1,000 to Complainant because he was not provided an interpreter on March 7, 2012, and $500.00 for Complainant because he was not provided an interpreter on February 8, 2012. EEOC Appeal No. 0120114330 (February 14, 2013). The Agency determined that the average award was approximately $1,500 per incident for a similar case involving most recent failures to provide interpreters for Complainant. Moreover, the Agency determined that it would pay Complainant in the sum of $6,000 in non-pecuniary damages. The instant appeal followed. Complainant argues that he should be awarded in $15,000.00 in pecuniary and non-pecuniary compensatory damages, and attorney's fees as a result of the denial of reasonable accommodation. Complainant states "according to the AJ's previous order and Agency's agreement, I should receive $2,000 per incident which should be $8,000 not including the amount of attorney's fees. My final order for my whole relief is $15,000." ANALYSIS AND FINDINGS When discrimination is found, the agency must provide the complainant with full, make-whole relief to restore him/her as nearly as possible to the position s/he would have occupied absent the discrimination. See, Franks v. Bowman Transportation Co., 424 U.S. 747, 764 (1976); Albemarle Paper Co. v. Moody, 422 U.S. 405, 418-19 (1975); Adesanya v. Postal Service, EEOC Appeal No. 01933395 (July 21, 1994). The Commission recognizes that precise measurement cannot always be used to reduce the wrong inflicted. Nonetheless, we believe that the burden of limiting the remedy rests with the agency. See Davis v. U. S. Postal Service, EEOC Petition No. 04900010 (November 29, 1990). Compensatory damages do not include back pay, interest on back pay, or any other type of equitable relief authorized by Title VII. To receive an award of compensatory damages, a complainant must demonstrate that she has been harmed as a result of the Agency's discriminatory action: the extent, nature and severity of the harm; and the duration or expected duration of the harm. See Rivera v. Dep't of the Navy, EEOC Appeal No. 01934157 (July 22, 1994), recon. denied, EEOC Request No. 05940927 (Dec. 11, 1995); EEOC's Enforcement Guidance: Compensatory and Punitive Damages Available Under Section 102 of the Civil Rights Act of 1991, EEOC Notice No. 915.002 at 11-12, 14 (July 14, 1992). A complainant is required to provide objective evidence that will allow an Agency to assess the merits of his request for damages. See Carle v. Dep't of the Navy, EEOC Appeal No. 01922369 (Jan. 5, 1993). Non-pecuniary damages for pain and suffering 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. 915.002 at 10 (July 14, 1992). We find that given the specifics of facts in this case, the Agency's remedial award of $6,000.00 in non-pecuniary compensatory damages was inappropriate. In his affidavit, Complainant stated that he suffered from anxiety and mental anguish due to the Agency's failure to provide him an interpreter on the subject dates. Complainant also provided a letter from his wife attesting to his claim of emotional harm. In her statement, Complainant's wife stated that when the Agency failed to provide interpreters for Complainant, he "started to show mental stress. He would become anxious. He kept saying no interpreters at work, and no interpreters showed up at the right time, or the employees brushed aside the need for getting a sign language interpreter for him in the meetings. That upset him upside down...lack of interpreters, co-workers' biased attitudes, discrimination about his ability to handle his job, co-workers and boss's oppressive treatment towards him." In Carle v. Dep't of the Navy, the Commission explained that "objective evidence" of non-pecuniary damages could include a statement by Complainant explaining how she was affected by the discrimination. EEOC Appeal No. 01922369 (January 5, 1993). Statements from others, including family members, friends, and health care providers can also address the outward manifestations of the impact of the discrimination on the complainant. Id. Moreover, while it can strengthen a claim, evidence from a health care provider or other expert is not a mandatory prerequisite for recovery of compensatory damages for emotional harm. Lawrence v. United States Postal Service, EEOC Appeal No. 01952288 (April 18, 1996). After a review of the record in its entirety, including consideration of all statements submitted on appeal, it is the decision of the Commission to modify the Agency's award of non-pecuniary compensatory damages. We find the award of $6,000 of non-pecuniary compensation damages is inadequate in light of the amount awarded in similar cases, the severity of harm and duration of the harm. Given the Agency's adverse conduct here in failing to address a situation that was inherently degrading and humiliating, we find it reasonable to accept Complainant's affidavit of emotional distress to support an award for emotional damages. We find it appropriate to award Complainant $10,000 because his affidavit testimony, along with his supporting witnesses, established that, during the relevant period, he felt humiliated and degraded when the Agency did not provide him an interpreter on the subject dates. This award is not "monstrously excessive" standing alone, is not the product of passion or prejudice, and is consistent with the amount awarded in similar cases. See Castillo v. Dep't of the Interior, EEOC Appeal No. 01990818 (July 16, 2002) ($35,000 in non-pecuniary damages where complainant testified to emotional distress, stress at work, anger and tension for a period of approximately three years); Carlson v. Dep't of Justice, EEOC Appeal No. 01A51437 (April 27, 2005) ($30,000 in non-pecuniary damages where complainant testified that he suffered depression, anger, alienation, humiliation, embarrassment, and loss of status); and Garrett v. U.S. Postal Service, EEOC Appeal No. 07A30024 (February 25, 2004) ($35,000 in non-pecuniary damages where complainant experienced emotional distress, depression, anger, embarrassment, humiliation, headaches, and sleep difficulties). Pecuniary compensatory damages Pecuniary damages are quantifiable out-of-pocket expenses incurred as a result of the Agency's discriminatory actions. Past pecuniary damages are those which occurred up to the finding of discrimination. Future pecuniary damages are losses likely to occur after the resolution of the complaint. Here, Complainant has not produced sufficient evidence of past pecuniary damages. Complainant did not provide adequate evidence to support his claim for pecuniary damages. With regard to Complainant's claim for medical expenses, the Agency noted that a review of the medical documentation Complainant submitted does not establish that Complainant saw his physicians for counseling based on the Agency's conduct. For instance, Complainant had receiving psycho-therapeutic services since September 2005 prior to the pursuit of the instant complaint, and the evidence in the record does not identify whether any treatment provided by the physician was related to the events in the complaint. The unsupported documentation for medical expenses results in our affirmance of the Agency's denial of this claim. We affirm the Agency's determination in this regard. CONCLUSION Accordingly, we MODIFY the Agency's March 6, 2014 final decision to increase the award to $10,000.00 in pecuniary and non-pecuniary compensatory damages for emotional harm. The case is hereby REMANDED to the Agency for further processing in accordance with the ORDER below. ORDER The Agency is ordered to take the following remedial action, to the extent that it has not already done so: Within sixty (60) calendar days of the date this decision becomes final, the Agency shall tender to Complainant $10,000.00 in pecuniary and 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 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), 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 (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 Complainants 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 November 3, 2016 __________________ 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 0120141679 2 0120141679