U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Roxanna B.,1 Complainant, v. Megan J. Brennan, Postmaster General, United States Postal Service (Western Area), Agency. Appeal No. 0120143067 Hearing No. 540-2013-00162X Agency No. 4E-852-0131-12 DECISION On August 27, 2014, Complainant filed an appeal from the Agency's August 8, 2014 final decision concerning her claim for compensatory damages stemming from her 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 City Carrier at the Agency's Post Office facility in Bullhead City, Arizona. She had been employed by the Agency since 1986. On October 6, 2012, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the bases of disability (Obsessive Compulsive Disorder) and reprisal for prior protected EEO activity under Section 501 of the Rehabilitation Act of 1973 when she was subjected to a hostile work environment, disparate treatment, and denied reasonable accommodation regarding a series of incidents that occurred between May and December 2012. At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation and notice of her right to request a hearing before an EEOC Administrative Judge (AJ). Complainant initially requested a hearing, but later withdrew her request. As such, the AJ remanded the complaint to the Agency, and the Agency issued a final decision pursuant to 29 C.F.R. § 1614.110(b). The decision concluded that Complainant failed to prove that the Agency subjected her to discrimination as alleged. Complainant appealed the Agency's final decision to the Commission. In EEOC Appeal No. 0120140129 (March 25, 2014), the Commission found that the Agency had denied Complainant's requests for reasonable accommodation, as well as subjected her to a discriminatory hostile work environment based on her disability. In addition to denying Complainant's requests for reasonable accommodation, the Commission held that management changed orders on Complainant to throw off her pattern and rhythm because of her medical condition. They made her change the way she loaded her vehicle; denied her requests to check her locks which she had been allowed to do before; and removed a platform step from her workplace. The Supervisor would then threaten Complainant with discipline if she did not follow instructions causing further disruption of her pattern. As a result, it took her more time to do her work and she had to request overtime. She was also singled out and called "messy." She was not permitted to call for assistance while others could. The decision found that the Supervisor was keenly aware that changing Complainant's patterns cause her anxiety but yet still continued to single her out further heightening her medical condition. Coworkers noticed that Complainant as treated more harshly than others and that management created "special rules" only for Complainant solely to further harass Complainant. Based on a totality of the circumstances, the decision concluded that Complainant had been subjected to a hostile work environment based on his disability for which the Agency was liable. Among other remedies, the Commission ordered the Agency to conduct a supplemental investigation as to Complainant's entitlement to compensatory damages. The Agency conducted its investigation which concluded on July 14, 2014. The Agency issued its decision on compensatory damages on August 8, 2014. The Agency found that Complainant established that she should be awarded $ 5,436.81 in pecuniary damages and $15,000.00 in non-pecuniary damages. The instant appeal from Complainant followed. 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"). Non-Pecuniary Damages When discrimination is found, the respondent Agency must provide the employee with a remedy that constitutes full, make-whole relief to restore the employee as nearly as possible to the position he or she would have occupied absent 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). The Commission is authorized to award compensatory damages as part of the "make whole" relief for intentional discrimination. Compensatory damages, however, are limited to the amount necessary to compensate an injured party for actual harm caused by the Agency's discriminatory action, even if the harm is intangible. Damiano v. U.S. Postal Serv., EEOC Request No. 05980311 (Feb. 26, 1999). Compensatory damages should consider the extent, nature and severity of the harm and the length of time the injured party endured the harm. Id.; Compensatory and Punitive Damages Available under Section 102 of the Civil Rights Act of 1991 (Guidance), EEOC Notice No. 915.002 (July 14, 1992), at 11-12, 14. The Commission notes that a proper award of non-pecuniary compensatory damages, the amount of the award should not be "monstrously excessive" standing alone, the product of passion or prejudice, and consistent with the amount awarded in similar cases. See Ward-Jenkins v. Dept. of Interior, EEOC Appeal No. 01961433 (Mar. 4, 1999) (citing Cygnar v. City of Chicago, 865 F.2d 827, 848 (7th Or. 1939). The record shows that Complainant was diagnosed with Obsessive Compulsive Disorder and anxiety in 1999, prior to the events found to be discriminatory. She was receiving medical treatment for this condition. In her two affidavits, provided in December 2012 and June 2014, Complainant claimed her pre-existing medical condition was exacerbated by management's discriminatory actions. She claimed that she was more anxious and stressed, causing her to see her psychologist more frequently. She also indicated that she had problems sleeping because she kept replaying the events at work, gained weight, suffered embarrassment and humiliation because of her treatment, lost interest in outside activities, and feared losing her job. She also claimed to have developed other medical conditions due to the stress, including colitis and chest pains. The evidence shows that Complainant increased her visits to her psychologist beginning in May 2012. In December 2012, Complainant's psychologist confirmed that she was experiencing "significant anxiety symptoms" because of work-related events. This coincided with the events that made up her hostile work environment claim and leads to the conclusion that her Obsessive Compulsive Disorder and anxiety was exacerbated by issues at work. Complainant also submitted statements from her son, two brothers and several co-workers in support of her claim for damages. Her son, who lived in another state, stated that her usual outgoing personality had been adversely affected by events at work and that their Sunday telephone conversations had become dominated by her work problems. He said that Complainant believed that management was trying to force her out, and that she had been required to take a lot of time off to seek psychological care which caused a financial burden. Complainant's brothers, who also lived out-of-state, noted that her disposition had changed based on what she told them was happening at work. They also stated that Complainant had expressed concern that management was trying to force her out. Complainant's coworkers recounted their belief that Complainant had experienced a decline in attitude and health, and was stressed, anxious, and reclusive. A former co-worker and friend opined that management's treatment of Complainant was abusive. She observed a physical, mental, and financial "drain" on Complainant to the point where she claimed to have "lost a friend." In light of this evidence, we find that the Agency's award of $15,000 in non-pecuniary damages is not sufficient. While we recognize that Complainant had a pre-existing condition, the evidence shows that the discriminatory events at work exacerbated her condition. While there is little medical evidence concerning the extent of that exacerbation, there are ample statements from Complainant herself, as well as from her family and coworkers, attesting to the negative psychological effects the events at work were having on her. As such, we conclude that an award of $60,000 in non-pecuniary damages more appropriately compensates Complainant for the harm caused by the Agency. We 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 (March 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 (April 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). Pecuniary Losses Pecuniary losses are out-of-pocket expenses incurred as a result of the Agency's unlawful action, including job-hunting expenses, moving expenses, medical expenses, psychiatric expenses, physical therapy expenses, and other quantifiable out-of-pocket expenses. Past pecuniary losses are losses incurred prior to the resolution of a complaint through a finding of discrimination, or a voluntary settlement." Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at 11-VII.B.2 (Aug. 5, 2015) (internal citations omitted). "In a claim for pecuniary compensatory damages, Complainant must demonstrate, through appropriate evidence and documentation, the harm suffered as a result of the Agency's discriminatory action. Objective evidence in support of a claim for pecuniary damages includes documentation showing actual out-of-pocket expenses with an explanation of the expenditure. The Agency is only responsible for those damages that are clearly shown to be caused by the Agency's discriminatory conduct. To recover damages, the Complainant must prove that the employer's discriminatory actions were the cause of the pecuniary loss." Id. (internal citations omitted). In its decision on pecuniary damages, the Agency noted that Complainant requested leave restoration for leave used due to the discrimination. The Agency stated that such a request is not considered pecuniary damages. Complainant also provided the Agency with documents regarding her medical appointments from mid-2013. Complainant asked for reimbursement for the co-payments for numerous visits to the Green Valley Psychiatric Associates in Las Vegas, providing copies of her insurance statements from her doctors. Complainant provided receipts for $20 copayment for each of the 52 appointments from May 4, 2012, to March 4, 2014. The Agency noted that the harassment concluded in December 2012, and another open complaint included events from October 2013 through May 2014. The Agency determined that it would reimburse Complainant for 39 visits for $780.00 from May 2012 to June 20, 2013, or six months after the last discriminatory event. The Agency noted that this coincides with the tapering off of visits after April 2013. The Agency also provided Complainant with mileage reimbursements of 7020 miles for 39 trips of 180 miles each way. The total reimbursement for mileage was $3921.30. The Agency also provided Complainant with reimbursement for medications from September 2012 to February 2013, for $735.51. The Agency denied copayments, mileage and prescriptions for Complainant's visits with another Physician at the Center for Colorectal Health in Las Vegas, noting that Complainant failed to provide any causal connection between these medical issues to the discrimination. The Agency also denied Complainant's request for reimbursement for treatment for chest pains and other medications from June 2013 to June 2014. Finally, Complainant alleged that she was so financially impacted by the Agency's actions that she had to borrow $40,000 from her Thrift Savings Plan (TSP). However, the Agency noted that Complainant did not provide a connection between the loan and the discrimination. As such, the Agency denied Complainant's request for pecuniary damages related to the loan from the TSP. Complainant averred that she had to borrow money against her TSP, as well as borrowed money from her son, to pay for doctor visits in offices 90 miles away, and medications, including Cymbalta, Busiprone, and Prozac. She also claimed the stress caused by the discrimination resulted in her gaining weight, which created a need to buy new clothes. Complainant also stated that due to the harassment, her OCD and anxiety intensified and pushed her into becoming a compulsive buyer trying to fill the void in her of feeling worthless. Since October 2013, she asserted that she needed to use credit cards for everything including gas, food, clothes, medications, and medical bills. Complainant submitted her prescription for Cymbalta dated October 29, 2012 through October 2013. Complainant listed 52 appointments from May 4, 2012 through May 14, 2014. Each visit was 180 miles round trip and the copay was $20. Upon review of the record, we find that Complainant has not established a causal connection between her need to borrow money and the Agency's discriminatory actions. In addition, Complainant provided several prescriptions for medications some of which she started taking in 2014, sometime after the events which created a hostile work environment occurred. As such, we cannot find a causal connection between the discrimination and all of the medications Complainant was taking. However, the Agency approved the reimbursement of Cymbalta which she had been taking in 2012. We determine that this is appropriate and affirm the Agency's decision to repay Complainant $735.51 for her medications. We do find that Complainant has shown that due to the harassment, her medical conditions were exacerbated resulting in more visits to her physicians and her prescriptions for Cymbalta. The Agency only provided for 39 of the 52 medical visits. We note that the Agency chose to end the reimbursement based on the reduction in frequency of Complainant's medical visits. We find no support in the record for any reduction. As such, we find that Complainant should be reimbursed for all 52 medical visits at $20 per visit or $1,040.00. In addition, Complainant should be reimbursed for her mileage to and from the doctors' office which was 180 miles round trip. We note that for the 25 round trips in 2012, the Government Services Administration mileage rate was $ 0.555 for a total of $ 2,497.50; that the rate for 14 round trips in 2013 was $ 0.565 for a total of $1,423.80; and that the rate for 13 round trips in 2014 was $0.56 for a total of $1,310.40. In sum, based on the evidence provided by Complainant and the Agency's final decision, we find that Complainant is entitled to the following pecuniary damages: Prescriptions $ 735.51 Medical Appointment CoPay $ 1,040.00 Mileage 2012 $ 2,497.50 Mileage 2013 $ 1,423.80 Mileage 2014 $ 1,310.40 Total Awarded Pecuniary Damages $ 7,007.21 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 decision and REMAND the matter 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 $ 60,000 in non-pecuniary damages. II. The Agency shall pay Complainant $ 7,007.21 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. 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/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. 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 November 7, 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 0120143067 2 0120143067