U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Marguerite W.,1 Complainant, v. Thomas E. Perez, Secretary, Department of Labor, Agency. Appeal No. 0120142727 Agency No. CRC 10-11-024 DECISION Pursuant to 29 C.F.R. § 1614.403, the Equal Employment Opportunity Commission (EEOC or Commission) accepts Complainant's appeal from the Agency's June 19, 2014 final decision concerning an equal employment opportunity (EEO) complaint claiming employment discrimination in violation of Title VII of the Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. § 2000e et seq., Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq., and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq. BACKGROUND During the period at issue, Complainant worked as a Safety and Health Clerk at the Agency's Baltimore/Washington Area Office, Occupational Safety and Health Administration in Linthicum, Maryland. On January 12, 2010, Complainant filed the instant formal complaint. Therein, Complainant claimed that the Agency discriminated against him on the bases of national origin (Hispanic-Puerto Rican), sex (female), color (light-skinned), disability (hip condition and vision impairment), age (over 40), and in reprisal for prior EEO activity when: 1. from May 11, 2009 to August 4, 2009, the Area Director and Assistant Area Director made constant crude comments, and joked openly about Hispanics; 2. between May 11, 2009 and August 4, 2009, the Area Director and/or Assistant Area Director reportedly harassed Complainant and made sexually suggestive comments; 3. on June 2, 2009, the Area Director and Assistant Area Director reportedly questioned her about her disability and forced her to disclose her disability; 4. on June 10, 2009, the Area Director took Complainant's computer monitor, that was by the Help Desk as a reasonable accommodation to her blurred vision; 5. on July 29, 2009, the Area Director questioned whether Complainant could perform the position and stated that maybe Complainant would be "better off not working" during her interview for a GS-7/8 position; 6. on August 3, 2009, upon returning from leave, Complainant found that her computer was disconnected, moved and someone authorized her timesheet; 7. on August 3, 2009, Complainant was told she had to contact the Human Resources Office regarding the status of her reasonable accommodation;" 8. on August 3, 2009, the Area Director sent an email announcing the selection of the Administrative Assistant which was the position for which Complainant applied; and 9. on August 3, 2009, the Area Director announced that the Agency terminated her employment. On October 8, 2010, the Agency issued a final decision finding no discrimination. Specifically, the Agency determined that Complainant failed to show that she was subjected to discriminatory harassment or denied a reasonable accommodation. Complainant filed an appeal. On appeal, the Commission found that the Agency did not make a good faith effort to reasonably accommodate Complainant's disability in May 2009 and June 2009 (claim 4). Among other actions, the Commission ordered the Agency to conduct a supplemental investigation to determine her entitlement to compensatory damages. See EEOC Appeal No. 0120110728 (January 9, 2013).2 On June 19, 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 letters from her physicians from April 2008 to October 2012. In March 2009, Complainant's physician indicated that Complainant suffered from nine different conditions that caused her to "suffer[ ] from intense pain" making it "very difficult to walk," and stated that Complainant was "unable to work in an office." The Agency noted that the letters also state that Complainant had received pain treatment for her hip and leg. However, the Agency concluded that there were no dates or payments with any causal link to the May 2009 and June 2009, the dates the Agency failed to accommodate Complainant. The Agency noted that in July 2009, Complainant submitted a letter from her physician stating that Complainant suffered from right hip pain and recommended that she be provided a "working area that is ergonomically correct." The Agency also noted that in July 2009, Complainant's optometrist recommended that Complainant be provided with a "flat screen computer monitor for better vision." The Agency noted that in September 2011, Complainant sought treatment for low back pain. Complainant reported that there were no precipitating favors, and that the pain was aggravated by standing, sitting or sleeping on her right side. Complainant further indicated that her pain was "regressing" since she stopped received injections. The Agency noted that from March 2010 to October 2012, Complainant received trigger point injections to reduce pain. The Agency noted that Complainant's physicians 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. Moreover, the Agency stated that Complainant did not submit any receipt or other documentation indicating any monetary costs incurred related to medical treatment or evaluation. The Agency similarly denied Complainant's claim for repayment of the TSP loan, noting that Complainant had not establish a causal connection between the denial of reasonable accommodation she suffered and the TSP withdrawal from her husband's account approximately two years later in June 2012. Further, Complainant requested $360.00 annually for professional gardening and landscaping services which she could no longer do because of pain, and compensation in the amount of $1,730 for a new computer, printer, internet service and office supplies to assist her in her EEO case but did not provide any receipts for the purchases. The Agency again determined that Complainant was not entitled to compensatory damages because she failed to establish a causal link between the denial of reasonable accommodation and the necessity for paying for lawn service/office supplies. As such, 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 some mental and emotional harm. The Agency found that Complainant had established through her statement and the statement of her husband, that she experienced stress because of the Agency's failure to provide her a computer monitor. The Agency determined that Complainant was entitled to $4,500 in non-pecuniary compensatory damages. The instant appeal followed. Complainant argues that she should be awarded more than $4,500 in non-pecuniary compensatory damages as a result of the denial of reasonable accommodation. Complainant states "the Agency has offered a settlement of $4,500 however this does not grant a solution to the true damages. The Complainant endured hours and days of pain, suffering and humiliation while trying to perform her duties without reasonable accommodations." 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 $4,500 in non-pecuniary compensatory damages was inappropriate. In EEOC Appeal No. 0120110728, we found that the Agency failed to provide with a requested computer monitor as an accommodation to her visual impairment for a period of about three months. In her affidavit, Complainant stated that she suffered from emotional loss and mental anguish due to the Agency's failure to provide her a reasonable accommodation. Specifically, Complainant stated "for approximately three months, the Complainant was forced to use an outdated CRT monitor that was out of focus and with considerable glare. Without a proper monitor to perform the required duties, she had to endure eye strain and extreme pain in [her] hip and back . . . This pain was caused by constantly leaning forward to see what was on the monitor." Complainant also detailed the emotional stress she experienced as a result of being forced to work under these conditions, including have her manager take away a monitor she obtained herself from the Agency's IT Help Desk. Complainant also provided a letter from her husband attesting to her claim of emotional harm. In his statement, Complainant's husband stated that when the Agency failed to provide Complainant a reasonable accommodation, she suffered "setbacks in her disability and emotional progress following the denial of reasonable accommodations. This meant more trips to the doctors for more evaluations and medical treatment." 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 Agency award of $4,500 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 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 $30,000 because her affidavit testimony, along with her supporting witness, established that, during the relevant period, she experienced considerable physical discomfort for an extended period, as well as felt humiliated and degraded when the Agency did not provide her with a reasonable accommodation. 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 her claim for pecuniary damages. With regard to Complainant's claim for medical expenses, the Agency noted that medical documentation Complainant submitted does not establish that Complainant saw her physicians based on the Agency's conduct. For instance, Complainant had received pain treatment for her hip/back since April 2008, 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. Further, we note that Complainant did not submit any receipt or other documentation indicating any monetary costs incurred related to medical treatment. The unsupported documentation for the medical expenses results in our affirmance of the Agency's denial of this claim. We affirm the Agency's determination in this regard. Furthermore, Complainant made a claim for future pecuniary losses. Specifically, Complainant requested repayment for her and her husband's TSP loan, compensation in the amount of $1,730 for a new computer, printer, internet services and other supplies, and $360.00 annually for professional gardening and landscaping services she did not provide any receipts for the purchases. We concur with the Agency's denial of these claims because Complainant failed to establish a causal link between the denial of reasonable accommodation and the necessity for repaying her husband's TSP loan, compensation for her home office supplies and yearly lawn service. CONCLUSION Accordingly, we MODIFY the Agency's June 19, 2014 final decision to increase the award to $30,000 in 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 $30,000 in 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 December 21, 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 The record reflects that the Commission consolidated Complainant's two appeals (EEOC Appeal Nos. 0120110728 and 0120112988) in its January 9, 2013 decision. Because the Commission found no discrimination in EEOC Appeal No. 0120112988, we will only discuss the instant appeal herein. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ 2 0120142727 2 0120142727