U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Irvin W.,1 Complainant, v. John Kerry, Secretary, Department of State, Agency. Appeal No. 0120141773 Agency No. DOSF11709 DECISION On April 11, 2014, Complainant filed an appeal from the Agency's March 12, 2014, final concerning his 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. The Commission deems the appeal timely and accepts it pursuant to 29 C.F.R. § 1614.405(a). For the following reasons, the Commission MODIFIES the Agency's final decision. ISSUES PRESENTED Whether the Agency's award of $10,500.00 in non-pecuniary compensatory damages is adequate to compensate Complainant for the emotional distress he suffered as a result of the Agency's failure to accommodate his disability. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as an Information Management Specialist at the Agency's U.S. Mission to NATO in Brussels, Belgium. On September 11, 2009, Complainant filed an EEO complaint alleging that the Agency discriminated against him on the basis of disability (Sjogrens Syndrome, Rheumatoid Arthritis and Anxiety) when the Agency failed to provide him with a reasonable accommodation of his disability. After an investigation, Complainant requested the Agency issued a final decision. In its decision, the Agency found Complainant established he was subjected to discrimination when he was denied an accommodation. As relief, the Agency ordered that Complainant be provided with a reasonable accommodation. On July 14, 2011, Complainant appealed the decision, and we affirmed the Agency's finding on liability, and remanded the matter to the Agency so that it could conduct a supplementary investigation into Complainant's entitlement to compensatory damages. After conducting an investigation, the Agency issued its decision on March 12, 2014 awarding Complainant $10,500.00 in non-pecuniary damages. Specifically, the Agency found that Complainant's pre-existing condition was largely the cause of Complainant's physical and emotional distress during this time, and that the amount awarded was meant to compensate Complainant for the worsening of that condition. The Agency disagreed with Complainant's claim that his condition had stabilized by the time he arrived in Brussels, as evidence revealed he was still on a large dosage of steroids in July 2008, weeks before he began working. Although Complainant alleged that he suffered from a loss of bone density (Osteopenia) as a result of his long term steroid use, the Agency determined that there was insufficient evidence that this was as a result of the discrimination. Furthermore, although Complainant suffered emotional distress related to the discrimination, such distress occurred prior to his request for reasonable accommodation, which the Agency could not be held liable for. In sum, the Agency concluded that Complainant's condition was inherently unpredictable, and accordingly, his symptoms were unrelated to the discrimination itself. Accordingly, the Agency concluded that $10,500.00 was an appropriate amount to compensate Complainant for the emotional distress he suffered. The Agency declined to award any pecuniary damages in response to Complainant's request. This appeal followed. CONTENTIONS ON APPEAL On appeal, Complainant contends that his condition had in fact stabilized by the time he arrived in his new position in Brussles, and it was the Agency's actions which caused him to increase his steroid use. Thus, the Agency was responsible for his resulting Osteopenia. Furthermore, he argued that the Agency was responsible for his wife leaving her job in order to care for him, and owes him money for her lost income as pecuniary damages. The Agency did not response to the appeal. ANALYSIS AND FINDINGS When discrimination is found, the Agency must provide the Complainant with a remedy that constitutes full, make-whole relief to restore her as nearly as possible to the position he would have occupied absent the discrimination. See, e.g., Franks v. Bowman Transp. Co., 424 U.S. 747, 764 (1976); Albemarle Paper Co. v. Moody, 422 U.S. 405, 418-19 (1975); Adesanya v. U.S. Postal Serv., EEOC Appeal No. 01933395 (July 21, 1994). Pursuant to section 102(a) of the Civil Rights Act of 1991, a Complainant who establishes unlawful intentional discrimination under either Title VII of the Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. § 2000e et seq. or Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq. may receive 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) as part of this "make whole" relief. 42 U.S.C. § 1981a(b)(3). To receive an award of compensatory damages, a Complainant must demonstrate that he or 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. Rivera v. Dep't of the Navy, EEOC Appeal No. 01934157 (July 22, 1994), req. for recons. denied, EEOC Request No. 05940927 (Dec. 11, 1995); Compensatory and Punitive Damages Available Under Section 102 of the Civil Rights Act of 1991, EEOC Notice No. 915.002 (July 14, 1992), at 11-12, 14. In Carle v. Dep't of the Navy, EEOC Appeal No. 01922369 (Jan. 5, 1993), the Commission explained that "objective evidence" of non-pecuniary damages could include a statement by the Complainant explaining how a Complainant was affected by the discrimination. 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. In the instant case, the Agency has found that Complainant should be awarded $10,500.00 for emotional distress. By doing so, the Agency has conceded that Complainant established a nexus between the harm he sustained and the discriminatory actions of the Agency. See Leatherman v. Department of the Navy, EEOC Appeal No. 01A12222 (December 14, 2001). Once the issue of a nexus between the discriminatory act and the harm sustained has been established, or conceded, as is the case herein, the Agency is responsible for all the harm suffered. The harm suffered by the Complainant herein must be justly compensated, with consideration given to how much previous Complainants have been awarded by the Commission, where the severity and duration of the harm suffered is similar to the facts of the instant action. In making an award the Commission applies the principle that "a tortfeasor takes its victims as it finds them." Wallis v. United States Postal Service, EEOC Appeal No. 01950510 (November 13, 1995) (quoting Williamson v. Handy Button Machine Co., 817 F.2d 1290, 1295 (7th Cir. 1987). The Commission also applies two exceptions to this general rule. First, when a Complainant has a pre-existing condition, the Agency is liable only for the additional harm or aggravation caused by the discrimination. Second, if the Complainant's pre-existing 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 being 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. United States Postal Service, EEOC Appeal No. 01942985 (April 29, 1997). Here, we find that the Agency has done little to meet its burden. Based upon the evidence provided by Complainant, we find the Agency's award of $10,500.00 to be inadequate to remedy the harm caused by the Agency. The Commission notes that record evidence confirmed that over a three year period, Complainant experienced an exacerbation of his pre-existing conditions for which he sought treatment caused by the stress created by the Agency's discriminatory actions. Complainant asserts that he suffered from anxiety, irritability, insomnia, and loss of consortium. He maintains he did not go out socially, and suffered from headaches, night sweats and loss of bone density. Most notably, he states he had tapered down his steroid dosage prior to reporting to Brussels, but was forced to increase the medication when the Agency refused to provide him with an accommodation of his disability. We find the evidence supports Complainant's position that his condition had stabilized and thus, the Agency is liable for the worsening of his condition. The Commission finds that an award of $60,000.00 is reasonable under the circumstances. See Complainant v. Dep't of Transp., EEOC Appeal No. 0720140022 (Sept. 16, 2015) (Complainant awarded $60,000.00 where Agency's failure to accommodate resulted in depression, anxiety, sleeplessness, and exacerbation of existing symptoms); Complainant v. Soc. Sec. Admin., EEOC Appeal No. 0720130013 (Aug. 14, 2014) (Complainant awarded $60,000.00 where Agency's failure to accommodate resulted in exacerbation of post-traumatic stress disorder, depression, stress, and elevated blood pressure); Henery v. Dep't of the Navy, EEOC Appeal No. 07A50034 (Sept. 22, 2005) ($65,000.00 awarded where Complainant suffered from frustration, negativity, and loss of sleep for a four-year period, as well as physical pain associated with the resulting excessive walking. The discrimination caused significant increase in Complainant's need for medical treatment, as well as an increase in physical and emotional harm). The Commission finds that this amount takes into account the severity of the harm suffered and his pre-existing condition, and is also consistent with prior Commission precedent. Finally, the Commission finds 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 Jackson v. U.S. Postal Serv., EEOC Appeal No. 01972555 (Apr. 15, 1999) (citing Cygnar v. City of Chicago, 865 F. 2d 827, 848 (7th Cir. 1989)). Pecuniary Damages Pecuniary losses are out-of-pocket expenses that are incurred as a result of the employer's unlawful action. Typically these damages include reimbursement for medical expenses, job-hunting expenses, moving expenses, and other quantifiable out-of-pocket expenses. Enforcement Guidance: Compensatory and Punitive Damages Available Under Section 102 of the Civil Rights Act of 1991, EEOC Notice No. 915.002 (July 14, 1992), at 14. Past pecuniary losses are losses incurred prior to the resolution of a complaint through a finding of discrimination, the issuance of a full-relief offer, or a voluntary settlement. Id. at 8-9. Future pecuniary losses are losses that are likely to occur after resolution of a complaint. Id. at 9. For claims seeking pecuniary damages, such objective evidence should include documentation of out-of-pocket expenses for all actual costs and an explanation of the expense, e.g., medical and psychological billings, other costs associated with the injury caused by the Agency's actions, and an explanation for the expenditure. Id. at 9. Complainant requested pecuniary damages to compensate him for the loss of his spouse's income when she was forced to quit her job with the Agency in 2010 to care for her husband. She asserted that at the time of the events in question, she previously went to school and worked, but once her husband's condition worsened, she was forced to make a choice between work and school. The Agency declined to award pecuniary damages for Complainant's spouse's loss of income as she is a third party and not entitled to any relief. The Agency also argues that Complainant's spouse simply chose to continue with her schooling over her job. Had Complainant sought nursing care for the services provided by his wife, such expenses would constitute out of pocket expenses compensable as pecuniary damages. However, Complainant's spouse instead cared for her husband and allegedly lost income as a result. We disagree with the Agency's analysis that as a third party, a spouse would not be entitled to damages in similar situations and find we have previously awarded back pay due to the loss of a spouse's job, when it was connected to the loss of the Complainant's. In Jones v. NSA, we affirmed an AJ's order to award back pay relief for a spouse's loss of income when the spouse's position was obtained through a spousal accommodation and dependent on Complainant's continued employment. See EEOC Appeal No. 0720120011, recon. denied, EEOC Request No. 0520130573 (December 13, 2013); see also EEOC Petition No. 0420140017 (November 6, 2015). Such is not the case in this situation, however. Furthermore, we do not find that the discrimination was the proximate cause of the loss of income since Complainant's spouse made the difficult choice to remain in school while caring for her husband. Finally, we find there is insufficient documentary proof in the record to calculate such an award. In light of the absence of evidence of pecuniary loss, we decline to award pecuniary damages. 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. ORDER 1. Within 120 days from the date of this decision, the Agency shall pay Complainant $60,000.00 in non-pecuniary compensatory damages. 2. 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 and evidence 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. 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 10-28-16 __________________ 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 01-2014-1773 2 0120141773