U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Levi P.,1 Complainant, v. Jeh Johnson, Secretary, Department of Homeland Security (Transportation Security Administration), Agency. Appeal No. 0120142758 Agency No. HS-TSA-03437-2008 DECISION On July 26, 2014, Complainant filed an appeal from the Agency's July 2, 2014, final decision 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). BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Screener at the Agency's Grand Forks Mark Andrew International Airport facility in Grand Forks, North Dakota. On April 23, 2008, Complainant filed an EEO complaint alleging that the Agency discriminated against him on the basis of disability (depression) when: in November 2007, he was informed that he would have to undergo a second medical examination at his own expense, which placed his application on medical hold, and led to his non-selection for the position of Transportation Security Officer. At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation and notice of his right to request a hearing before an EEOC Administrative Judge (AJ). Although Complainant requested a hearing, he subsequently withdrew his request. The Agency issued a final decision, concluding that Complainant failed to prove that the Agency subjected him to discrimination as alleged. Complainant appealed the decision to the Commission which was addressed in EEOC Appeal No. 0120091544 (March 13, 2013) request for recons. denied EEOC Request No. 0520130413 (Sept. 26, 2013). The Commission held that under the Rehabilitation Act an Agency is required to pay for the costs of a post-offer medical examination of the Agency's choice, just as an Agency is required to pay for the costs of a medical examination of the Agency's choice with respect to its employees. In the instant matter, the Agency chose to foreclose all alternative legitimate avenues for Complainant to provide medical information on his depression. As a result, the Agency rejected Complainant's offer to consult with his doctor about his mental condition. Instead, the Agency required Complainant to pay for a specific medical examination, one that he apparently could not afford. As such, the Commission concluded that the Agency violated the Rehabilitation Act when it required Complainant, a post-offer job applicant, to take an Agency-mandated medical examination at his own expense. Id. As such, the Commission ordered the Agency to remedial action including conducting a supplemental investigation regarding Complainant's entitlement to compensatory damages. The Agency conducted a supplemental investigation from December 20, 2013 through January 6, 2014. As to his claim for pecuniary damages, Complainant asserted that he had the following expenses: Out-of-Pocket Expense Amount Ream of paper $ 5.00 2 Ink cartridges $ 52.00 (at $ 26.00 each) Mailing receipt 1 $ 72.81 Mailing receipt 2 $ 36.95 Other mailings (estimated) between $ 1,317.12 to $ 1,646.40 Medical expenses (therapist) $50.00 out-of-pocket (2 times a week) Medical expenses (therapist) $ 15.00 each visit twice a year Gym membership $ 36.50 each month Complainant only provided receipts for only three of the items, namely Mailing receipt 1 and 2 and the gym membership. Complainant also indicated that he had been on medication for his depression but was taken off it in 2010. The Investigator asked Complainant to provide receipts and any other documentation to support his claim for pecuniary damages. Complainant failed to provide any such documentation. As to Complainant's claim for non-pecuniary damages, Complainant averred that he had depression and was seeing a therapist for it before the discrimination occurred and that the Agency's discriminatory act exacerbated his condition. He indicated that the discrimination effects were ongoing. Complainant stated that the complaint has put his "life on hold" and has been "emotionally draining." He stated that the case has absorbed his life and has been on his mind daily while he has been anticipating the outcome. The Investigator again asked for any supporting medical documentation. However, Complainant indicated that he did not have any to provide the Agency. Following the investigation, on July 2, 2014, the Agency issued its final decision on compensatory damages. It determined that Complainant was entitled to $1,500 in non-pecuniary compensatory damages. The Agency indicated that Complainant requested non-pecuniary losses associated with his depression. Complainant asserted that his pre-existing condition was exacerbated by the Agency's discriminatory action. Complainant argued that he was stressed out, had sleepless nights, and experienced strain on his 18-year relationship. The Agency noted that Complainant was asked by the Investigator to provide evidence to show that he experienced an exacerbation of his depression. However, Complainant only provided his statement and did not obtain any additional statements from other witnesses. Based on the totality of the circumstances and evidence, the Agency determined that $ 1,500.00 was an appropriate amount to award Complainant. The Agency awarded Complainant $ 109.76 in pecuniary damages. It indicated that Complainant failed to establish that his gym membership was connected to the Agency's discriminatory action. As such, the Agency only awarded Complainant for the out of pocket expenses for mailing for which he provided receipts. This appeal followed. On appeal, Complainant asserted that he was not expected to keep all his receipts for his mailings to the Agency and the Commission regarding his EEO complaint. Further he asserted that the discrimination occurred over six years ago and he has put his world on hold worrying and wondering what was going to happen. As such, he asserts that he should be provided more than $ 1,500.00 for being put under stress for over six years. Finally, Complainant argued that he should be compensated for his time for a lawyer would have been paid thousands of dollars in legal fees. The Agency asked that the Commission affirm its decision. ANALYSIS AND FINDINGS 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"). Pursuant to section 102(a) of the Civil Rights Act of 1991, a complainant who establishes his or her claim of 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. may receive compensatory damages for past and future pecuniary losses (i.e., out-of-pocket expenses) and nonpecuniary losses (e.g., pain and suffering, mental anguish) as part of "make whole" relief. 42 U.S.C. § 1981a(b)(3). In this regard, the Commission has authority to award such damages in the administrative process. See e.g. Stokes v. Dep't of Homeland Sec., EEOC Appeal No. 0120071802 (Dec. 10, 2008). With respect to non-pecuniary compensatory damages, these 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 Enforcement Guidance: Compensatory and Punitive Damages Available under § 102 of the Civil Rights Act of 1991 (EEOC Guidance), EEOC Notice No. 915.002 at 10 (July 14, 1992). Objective evidence in support of a claim for non-pecuniary damages claims includes statements from Complainant and others, including family members, co-workers, and medical professionals. See Id.; see also Carle v. Dep't of the Navy, EEOC Appeal No. 01922369 (Jan. 5, 1993). Non-pecuniary damages must be limited to compensation for the actual harm suffered as a result of the Agency's discriminatory actions. See Carter v, Duncan-Higgans, Ltd., 727 F.2d 1225 (D.C. Cir. 1994); EEOC Guidance at 13. Additionally, the amount of the award should not be "monstrously excessive" standing alone, should not be the product of passion or prejudice, and should be consistent with the amount awarded in similar cases. See Jackson v. U.S. Postal Serv., EEOC Appeal No. 01972555 (April 15, 1999) (citing Cygnar v. City of Chicago, 865 F. 2d 827, 848 (7th Cir. 1989)). Finally, we note that in determining non-pecuniary, compensatory damages, the Commission has also taken into consideration the nature of the Agency's discriminatory actions. See Utt v. U.S. Postal Serv., EEOC Appeal No. 0720070001 (Mar. 26, 2009); Brown-Fleming v. Dep't of Justice, EEOC Appeal No. 0120082667 (Oct 28, 2010). As noted above, Complainant was the only person to provide a statement in support of his claim for non-pecuniary damages. Complainant asserted that his depression was exacerbated by the Agency's discriminatory act. He asserted that he "put his live on hold" for the processing of the EEO complaint. We remind Complainant that the award of non-pecuniary losses that for those losses incurred as a result of the discriminatory conduct itself. See EEOC Guidance. Based on Complainant's statement and Commission case precedent, we find that an award of $ 5,000 is more appropriate. See Young v. Dep't of Veterans Affairs, EEOC Appeal No. 01A24503 (Sept. 15, 2003) (awarding $ 3,500 for Complainant who was terminated when found unfit for duty where Complainant provided statement showing he experienced stress, marital strain and financial difficulties); Bridges v. Dep't of Veterans Affairs, EEOC Appeal No. 01997164 (Oct. 6, 2000), request for reconsid. denied, EEOC Request No. 05A10080 (Feb. 9, 2001) (providing Complainant $ 5,000 for a finding of disability based discrimination when forced to resign citing Complainant's depression, sleeplessness, anxiety, mental anguish, and anger); DeVaughn v. U.S. Postal Serv., EEOC Appeal No. 01A34719 (Jan. 7, 2004) (awarding $ 5,000 when Complainant was found medically unsuitable and removed from list of eligible based on disability and showed that the Agency's action caused emotional distress, lack of sleep, loss of appetite, and family and financial problems). Accordingly, we modify the Agency's final decision. Pecuniary damages are quantifiable out-of-pocket expenses incurred as a result of the Agency's discriminatory actions. Damages for past pecuniary damages will not normally be granted without documentation such as receipts, records, bills, cancelled checks, or confirmation by other individuals of actual loss and expenses. Here, although Complainant stated in his affidavit that he incurred out-of-pocket expenses for doctor's appointments, medication, and postage, he failed to specify exact dollar amounts related to these costs and stated only vague approximations. He also failed to provide receipts or other evidence establishing actual loss or expenses. The receipts he provided to the Agency or the Commission were solely the two postage receipts in the amount of $ 72.81 and $ 36.95. Complainant asserted that his gym membership constituted therapy for his depression but failed to provide evidence for this assertion. Therefore, we find that the Agency properly denied Complainant's claim for reimbursement for his gym membership. Based on Complainant's failure to provide supporting documentation to support his claim for pecuniary damages, we find that the Agency properly awarded Complainant $ 109.76 in 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 and REMAND the matter for further action in accordance with the ORDER below. ORDER To the extent the Agency has not paid Complainant these amounts, the Agency is ordered to take the following remedial action: I. The Agency shall pay Complainant $ 5,000.00 in non-pecuniary damages. II. The Agency shall pay Complainant $ 109.76 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 verifying 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 (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 (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 November 4, 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 0120142758 7 0120142758