U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Emmett W.,1 Complainant, v. Tom J. Vilsack, Secretary, Department of Agriculture (Food Safety and Inspection Service), Agency. Appeal No. 0120143098 Agency No. FSIS-2011-00530 DECISION Complainant filed a timely appeal in August 2014 from the July 29, 2014 Agency decision on the issue of compensatory damages, arising from 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 accepts the appeal pursuant to 29 C.F.R. § 1614.405(a).For the following reasons, the Commission MODIFIES the Agency decision on the compensatory damages award. ISSUE PRESENTED Was the Agency award in the amount of $15,000 of compensatory damages adequate in providing Complainant with make-whole relief? BACKGROUND Complainant, an Iraqi war veteran, worked as a Food Inspector at the Agency's Tyson's Processing Plant in Noel, Missouri. He began working for the Agency in September 2010. His employment ended during his probationary period on July 11, 2011. In an amended complaint, Complainant alleged that the Agency discriminated against him on the basis of disability (post-traumatic stress disorder, traumatic brain injury) when the following occurred: (1) on April 4, 2011, the Agency denied him a reassignment as a reasonable accommodation;2 (2) on April 21, 2011, the Agency placed him on administrative leave; and (3) Complainant was constructively discharged on July 11, 2011.3 After an investigation, Complainant requested an Agency decision. On September 27, 2012, the Agency issued a decision, pursuant to 29 C.F.R. § 1614.110(b), concluding therein that it had subjected Complainant to unlawful discrimination when it decided to terminate him because its decision was based on symptoms associated with his PTSD. The Agency decided that it had acted properly in denying Complainant the accommodation that he requested and, also, that the Agency had legitimate reasons for placing Complainant on administrative leave. Based on its finding of discrimination as to Complainant's termination, the Agency concluded that Complainant was entitled to full, make-whole relief. The Agency determined that it had to provide Complainant with back pay, less interim earnings, and all benefits or training that he would have otherwise earned or received if he had not been subjected to discrimination. The Agency also was to have posted the required notice of its discrimination. The Agency ordered Complainant to submit evidence related to damages, including past and future pecuniary losses and non-pecuniary losses and also referred the matter to Agency offices to determine appropriate or other corrective action. Once all the necessary documentation was received, the Agency was to have implemented relief. If Complainant was represented by counsel, the attorney had to submit a verified statement of attorneys' fees and costs within 30 days of the receipt of its decision. The Agency also noted in its September 2012 decision that a separate decision on compensatory damages would be issued. On December 28, 2012, Complainant, through counsel, submitted a Petition for Damages (Petition) to the Agency, pursuant to the Agency's September 2012 decision. He requested $2,500,000 in non-pecuniary damages; lost wages of $4,935 in 2011 and $14,627 in 2012; and future lost wages of $211,976 for 13.5 additional years for a total of $2,731,538. The affidavits of Complainant, his wife, his daughter, and his parents accompanied Complainant's 2012 Petition.4 On July 29, 2014, the Agency issued a Final Agency Decision on Request for Compensatory Damages after Complainant had filed a Petition for Writ of Mandamus (Mandamus writ) in federal district court in April 2014.5 As a result of its September 2012 decision finding discrimination and Complainant's December 2012 Petition for Damages, the Agency awarded Complainant $15,000 in non-pecuniary compensatory damages. The Agency also found that Complainant did not provide any documentation for any pecuniary damages. Regarding back pay, the Agency noted that it was awarding back pay with interest and benefits and training and also noted that Complainant had mitigated damages by securing employment as a bus driver.6 The Agency denied Complainant's claim of $211,976 for front pay and asserted that reinstatement, and not front pay, was the appropriate remedy. The Agency also indicated that attorneys' fees and costs "would not be awarded at this time" because no supporting documentation was submitted.7 It also concluded, however, that Complainant was entitled to attorneys' fees for work performed on the issue of compensatory damages. CONTENTIONS ON APPEAL Complainant raises only one challenge on appeal.8 He asserts, through counsel, that the award of $15,000 is wholly inadequate considering the emotional and financial damage that has occurred to him and which affected his family relationships and his having to file for bankruptcy as a result of the Agency's unlawful termination.9 Complainant further asserts that the Agency's discriminatory action exacerbated his pre-existing condition and was the direct cause of sleeplessness, humiliation in the community, inability to pay his creditors, and his frequent and unexpected suffering from his post traumatic stress disorder (PTSD) and traumatic brain injury (TBI), triggered by high anxiety and high levels of stress. The Agency maintains that $15,000 properly compensates Complainant for any harm caused by its discrimination and that its award is consistent with case law. The Agency cited cases to support its award and distinguished cases in which the Commission has awarded three-figure amounts. The Agency also maintains that it is only liable for damages to the extent that the discrimination exacerbated Complainant's pre-existing condition. The Agency urges that we affirm the Agency's decision and deny Complainant's appeal in its entirety. ANALYSIS AND FINDINGS Standard of Review Initially, the Commission notes that because this matter is an appeal from a decision issued without a hearing, we are required to review the matter de novo. 29 C.F.R. § 1614.405(a). See Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614, Chap. 9, § VI.A. (Aug. 5, 2015). A 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 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 Section 102(a) of the 1991 Civil Rights Act authorizes an award of compensatory damages for pecuniary losses, and for non-pecuniary losses, such as, but not limited to, emotional pain, suffering, inconvenience, mental anguish, loss of enjoyment of life, injury to character and reputation, and loss of health. In this regard, the Commission has authority to award such damages in the administrative process. See West v. Gibson, 527 U.S. 212 (1999). For an employer with more than 500 employees, such as the agency, the limit of liability for future pecuniary and non-pecuniary damages is $300,000. Id.; 42 U.S.C. § 1981(b)(3)D). Compensatory damages may be awarded for past (out-of pocket) and future (likely future out-of-pocket) pecuniary losses, and, as in the instant appeal, also for non-pecuniary losses which are directly or proximately caused by the agency's discriminatory conduct. Enforcement Guidance: Compensatory and Punitive Damages Available under Section 102 of the Civil Rights Act of 1991 (Guidance on Compensatory Damages), EEOC Notice No. 915.002, at 8 (July 14, 1992). The amount of an award of compensatory damages is based on the following factors: (1) severity of the harm; (2) duration of the harm; and (3) extent to which the harm was caused by discriminatory conduct. See Rivera v. Dep't of the Navy, EEOC Appeal No. 01934157 (July 22, 1994), req. for recon. denied, EEOC Request No. 05940927 (Dec. 11, 1995); Guidance on Compensatory Damages, at 11-12, 14. The reasonableness of an amount of compensatory damages is measured by whether the award is "monstrously excessive" and consistent with awards in similar cases. Ward-Jenkins v. Dep't of the Interior, EEOC Appeal No. 01961483 (Mar. 4, 1999). (citing Cygnar v. City of Chicago, 865 F.2d 848 (7th Cir. 1989)). Complainant is required to provide objective evidence that would allow the 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). Complainant's own testimony, along with the circumstances of a particular case, can suffice, however, to sustain his burden in regard to harm. Sinott v. Dep't of Defense, EEOC Appeal No. 01952872 (Sept. 19, 1996). Objective evidence of compensatory damages can include statements from the complainant concerning his emotional pain or suffering, inconvenience, mental anguish, marital strain, loss of enjoyment of life and self-esteem, injury to professional standing, injury to character or reputation, injury to credit standing, loss of health, and any other non-pecuniary losses that are incurred as a result of the discriminatory conduct. Statements from others, including family members, friends, health care providers, or other counselors (including clergy) could address the outward manifestations or physical consequences of emotional distress, including sleeplessness, anxiety, stress, depression, marital strain, humiliation, emotional distress, loss of self-esteem, excessive fatigue, or a nervous breakdown. Lawrence v. U.S. Postal Serv., EEOC Appeal No. 01952288 (Apr. 18, 1996) (citing Carle, supra, EEOC Appeal No. 01922369). Evidence from a health care provider or other expert is not a mandatory prerequisite for recovery of compensatory damages for emotional harm. Sinnott, supra, EEOC Appeal No. 01952872; Carpenter v. Dep't of Agriculture, EEOC Appeal No. 01945652 (July 17, 1995). The more inherently degrading or humiliating the agency's action is, the more reasonable it is to infer that a person would suffer humiliation or distress from that action. The absence of supporting evidence, however, may affect the amount of damages appropriate in specific cases. See Lawrence, supra, EEOC Appeal No. 01952288; Banks v. U. S. Postal Serv., EEOC Appeal No. 07A20037 (Sept. 29, 2003). In the underlying complaint, the Agency found a discriminatory termination. Accordingly, the Agency must provide Complainant with full, make-whole relief to restore him as nearly as possible to the position he would have occupied absent the discrimination. See, e.g., 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. U.S. Postal Serv., EEOC Appeal No. 01933395 (July 21, 1994). The Commission recognizes that non-pecuniary compensatory damages are losses that are not subject to precise quantification. See Enforcement Guidance on Compensatory Damages at 10. While there is no precise formula for determining the amount of damages for non-pecuniary losses, the award should reflect factors previously identified. The amount of damages is designed to remedy the harm caused by the discriminatory event rather than to punish the agency for the discriminatory action. In the instant case, the record on appeal does not contain any medical notes or reports concerning Complainant's PTSD or TBI.10 The record does, however, contain the affidavits of Complainant and those of his wife, daughter, mother, and father concerning Complainant's condition and the manifestations of his disability. In his affidavit, Complainant stated that after the termination, he lost sleep, weight and the sympathy of others. The stress took a toll on him and his family. Depression and stress "overwhelmed" him and he stated that he was uncertain that he would ever recover. The PTSD worsened and nothing seemed to bring relief for his agony. Because of unpaid bills and creditors' telephone calls and repossession of his property, he had to file bankruptcy. His financial situation "ruined" his reputation as a respectable person. Complainant stated that his medical insurance was cancelled and he could not afford medical care for his family. The three children living with him were placed on state-funded Medicaid. He began working about three months after his termination earning a salary of $6,675 annually, though he would have earned $31,315 yearly from the Agency. Complainant's wife stated in her affidavit that obtaining employment had bolstered Complainant's self-confidence but she witnessed Complainant's deterioration into depression and his struggle to remain sane after his termination. She also stated that Complainant's repression of his war time experiences after his termination, exacerbated the PTSD, thereby increasing his depression and feelings of uselessness and worthlessness and igniting his internal anger. After a road rage incident, his wife feared for the first time that Complainant would commit suicide. Complainant's wife also stated that the family fell behind in their financial commitments even though he was able to secure a job as a bus driver. The couple also had to file for bankruptcy.11 Complainant's daughter stated that after Complainant's termination, he was more short-tempered and "stressed out" more easily and it seemed as if "everything got on his nerves." She heard him and his mother fighting about his termination. Complainant's daughter also described the road rage incident during which he became enraged with another driver. Describing Complainant's emotional state prior to the termination, she stated that he was more playful but became serious about everything. Complainant was more impatient and acted like a cobra, ready to strike at the tiniest thing. Complainant's behavior had a ripple effect on the family when he was stressed. The record also contains the affidavit of Complainant's mother. In her affidavit, she stated that when Complainant was terminated, he was devastated. His PTSD became "worse than ever." He lost sleep, was frustrated and "stressed out" and was physically ill several times. Complainant lost weight. She stated that the strain could be seen in his eyes and face. His mother also stated that she believed that Complainant almost had a nervous breakdown. She worried about him and his family and she saw him "almost lose it" several times. His mother also stated that the termination affected his wife and children. He tried everything that he could think of but could not make ends meet. Nothing they did seemed to help. His mother described him as a wonderful father and husband; that his family was most important to him; and that the termination was hard on all of his family. Complainant's father stated in his affidavit that his son's PTSD worsened after the termination which "tore my son up." He lost sleep and weight and his finances went downhill. Although there are no medical reports in the record before us, we have noted earlier herein that evidence from a health care provider or other expert is not a mandatory prerequisite to recover damages.12 Here, the discrimination occurred in 2011. Complainant has described how he was affected by the discriminatory action and offers that he does not see how he will recover. There is no evidence that his condition has returned to where it was before the 2011 termination and his securing of credit will likely be affected for years because he filed for bankruptcy. Complainant's family provided affidavits regarding the continuing outward manifestations of his PTSD and the deleterious effects that followed Complainant's termination. Family members witnessed his sleeplessness, stress, depression, volatile anger, marital and familial strain, humiliation, and injury to his credit standing and reputation. We therefore find that the sum of $15,000 is not sufficient to remedy the harm that the Agency's actions caused Complainant and instead award Complainant $80,000, an award limited to the sums necessary to compensate Complainant for the actual harm caused by the Agency's discriminatory action and our attempt to affix a reasonable dollar value to compensate Complainant for that portion of emotional distress and related symptoms that were caused and aggravated by the Agency's discrimination. See Webb v. U.S. Postal Serv., EEOC Appeal No. 0120070230 (Dec. 17, 2009) (citing EEOC Notice No. 915.002 (July 14, 1992) at 13). The Commission recognizes that a precise measurement cannot always be used to reduce the wrong inflicted. See Davis v. U.S. Postal Service, EEOC Petition No. 04900010 (Nov. 29, 1990). Nonetheless, the burden of limiting the remedy rests with the agency. Id. Further, the amount awarded is not monstrously excessive. Complainant has requested over two million dollars in non-pecuniary compensatory damages. However, the statutory limit is $300,000. Complainant has cited no cases which would warrant more than we are awarding. Complainant has, however, experienced sufficient, continuing emotional distress and physical symptoms because of the Agency's discrimination to justify an award of $80,000 and it is consistent with similar awards. See Billy B. v. Dep't of Veterans Aff., EEOC Appeal No. 0120132680 (Nov. 19, 2015)($85,000 awarded where complainant separated from agency, pre-existing PTSD exacerbated, and complainant and brother addressed his pain and suffering); Ruben P. v. Social Sec. Admin., EEOC Appeal No. 0720130013 (Aug. 14, 2014) ($60,000 awarded where Complainant was denied reassignment as an accommodation for his symptoms of depression and PTSD); Gamez v. Social Sec. Admin., EEOC Appeal No. 07A20129 (Oct. 27, 2003), request for reconsid. denied, EEOC Request No. 05A40247 (Dec. 30, 2003) (Complainant awarded $90,000 as a result of the Agency's failure to provide a reasonable accommodation where complainant, her husband, and close friends testified that she experienced emotional distress, deterioration in marital relationship, and complainant became withdrawn, suffered lower self-esteem and Complainant's physician indicated that Complainant's symptoms were mild prior to her arrival at the agency). The Commission next addresses Complainant's pre-existing conditions which are not disputed. However, the Commission applies the principle that "a tortfeasor takes its victims as it finds them." See Wallis v. U.S. Postal Service, EEOC Appeal No. 01950510 (Nov. 13, 1995) (quoting Williamson v. Handy Button Machine Co., 817 F.2d 1290, 1295 (7th Cir. 1987)). The Commission also recognizes that Complainant is only entitled to recover damages for injury, or additional injury, caused by the discriminatory action. Terrell v. Dep't of Housing and Urban Develop., EEOC Appeal No. 01961030 (Oct. 25, 1996). In reaching the amount of the award, we considered the two exceptions to this general rule, i.e., (1) when a complainant has a pre-existing condition, the agency is liable only for the additional harm or aggravation caused by the discrimination and (2) 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 is 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)). Here, Complainant had a condition that pre-dated the discrimination but it also clear that what happened to Complainant resulted in aggravated his symptoms. At the heart of the principle of taking a victim as you find him is the idea that one person's response to harm does not set the standard for what is considered reasonable. Viers v. U.S. Postal Serv., EEOC Appeal No. 01A14246 (June 20, 2002). Tortfeasors take their victims as they find them, even when the claimed harm is mental anguish or emotional distress. Id.; Tompkins v. Cyr, 202 F.3d 770, 780 (5th Cir. 2000). In sum, the amount of non-pecuniary compensatory damages awarded to Complainant by the Agency was not sufficient. 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 award of $15,000 in non-pecuniary compensatory damages by increasing the award to $80,000. ORDER Within one hundred and twenty (120) days of the date of this decision becoming final: 1. The Agency shall issue Complainant a check in the amount of $80,000 for non-pecuniary compensatory damages. If the Agency has already paid Complainant $15,000, the Agency shall issue the remaining balance. 2. If it has not already done so, the Agency shall, pursuant to 29 C.F.R. § 1614.501, determine and provide Complainant with back pay with interest and any benefits, which can include, but is not limited to, leave restoration, retirement and Thrift Savings Plan (TSP) contributions and pay increases. 3. If it has not already done so, the Agency shall pay Complainant an amount to compensate him for the tax consequences, if any, of a lump-sum wage payment according to proof to be provided by Complainant. 4. If the Agency has not already done so, it shall reinstate Complainant to his position or to a substantially equivalent position 5. The Agency shall consider taking appropriate disciplinary action against the responsible Agency employees and report its decision to the Compliance Officer referenced herein. If the Agency decides to take disciplinary action, it shall identify the action taken. If the Agency decides not to take any disciplinary action, it shall provide its reasons for not imposing discipline. If the responsible Agency employees have left the Agency's employment, the Agency shall furnish documentation of their departure dates. 6. The Agency shall provide training to responsible Agency employees regarding their responsibilities under EEO law, with particular focus on the Rehabilitation Act and management's responsibilities with regard to reasonable accommodation. Such training is not considered disciplinary in nature. The Agency shall provide the Compliance Officer with the number of hours of the training given. If it has not already done so, the Agency shall post the notice referenced in the paragraph below entitled "Posting Order." 13 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 action has been implemented. POSTING ORDER (G0914) The Agency is ordered to post at its Tyson Processing Plant in Noel, Missouri copies of the attached notice. Copies of the notice, after being signed by the Agency's duly authorized representative, shall be posted both in hard copy and electronic format by the Agency within 30 calendar days of the date this decision becomes final, and shall remain posted for 60 consecutive days, in conspicuous places, including all places where notices to employees are customarily posted. The Agency shall take reasonable steps to ensure that said notices are not altered, defaced, or covered by any other material. The original signed notice is to be submitted to the Compliance Officer at the address cited in the paragraph entitled "Implementation of the Commission's Decision," within 10 calendar days of the expiration of the posting period. 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 (M0815) 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, 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 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 5-3-2016 __________________ 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 Complainant had requested reassignment from his worksite in Missouri to a worksite closer to his home in Waldron, Arkansas. He alleged that the five-hour daily commute was stressful and intensified his disability. The Commission recognizes that disability accommodations related to commuting can be required under the Rehabilitation Act in appropriate circumstances. See Hackney v. U.S. Postal Serv., EEOC Appeal No. 01984048 (Aug. 22, 2001); Hupka v. Dep't of Defense, EEOC Appeal No. 02960003 (Aug. 13, 1997). 3 It appears from the September 27, 2012 Agency decision that on July 6, 2011, Complainant received a notice of termination from the Agency. It also appears that he was advised by an Agency Human Resources Specialist that he could opt to resign in lieu of termination so that his employment would not reflect a termination. Complainant resigned on July 11, 2011. 4 The record on appeal contains what purports to be an Agency Response to Complainant's Damages Claim (Response). The Response, submitted by the Agency on appeal, and also referenced in its July 2014 Final Agency Decision on Request for Compensatory Damages, is not signed nor does it contain a certificate of service. 5 The Agency's Statement in Opposition to Appellant's Brief in Support of Appeal indicates that on April 16, 2014, Complainant filed a Mandamus writ in the U.S. District Court for the Western District of Arkansas, Docket No. 2:14-cv-02092-PKH, a copy of which is in the record. The Mandamus writ reveals that Complainant was seeking to enforce the damage award requested in his Petition submitted, through counsel, to the Agency in December 2012, pursuant to the Agency's September 27, 2012 decision finding discrimination. The 2014 Mandamus writ indicates that the Agency had taken no action on his 2012 Petition and because the Agency ceased any contact with Complainant or his counsel, Complainant was forced to file the Mandamus writ. On July 29, 2014, the Agency issued its decision on damages. In August 2014, Complainant filed the instant appeal. The Agency's brief discloses that on October 14, 2014, the U.S. District Court dismissed Complainant's Mandamus writ without prejudice. 6 The Commission has held that, under both legal and equitable theories, an award to cover additional tax liability from a lump sum payment of back pay is available to complainants. Van Hoose v. Dep't of the Navy, EEOC Appeal Nos. 01982628 and 01990455 (Aug. 22, 2001); Goetze v. Dep't of the Navy, EEOC Appeal No. 01991530 (Aug. 22, 2001). 7 The record does not indicate when Complainant retained counsel. The Agency's certificate of service for its September 27, 2012 decision indicates service on Complainant and that Complainant had no representative. 8 Complainant's Brief in Support of Appeal, p. 2. Complainant's brief references the Agency's denial of future pay and indicated that reinstatement was agreeable to Complainant. 9 Although Complainant did not identify a dollar amount for compensatory damages in his brief on appeal, his Petition reflects an over two million dollars request in non-pecuniary compensatory relief. 10 In its September 27, 2012 decision finding discrimination, the Agency references a Report of Investigation (ROI) prepared as a result of Complainant's underlying complaint of discrimination. The Agency decision indicates that the ROI records indicate that Complainant was diagnosed by the chief physician of the Mental Health Clinic for the Department of Veterans Affairs (VA) with PTSD and TBI. The 2012 decision also reveals that the ROI noted that Complainant notified the Agency of his disability when he initially applied for employment and that he also provided the Agency with medical documentation concerning his condition on February 8, 2011, following a reasonable accommodation request in December 2010. In addition, the Agency's 2012 decision references a February 8, 2011 letter from Complainant's treating psychiatrist and an August 14, 2010 VA medical assessment contained in the ROI. Also, in its decision on compensatory damages, the Agency observed that Complainant's disability was "documented as PTSD and TBI, both of which are triggered by high anxiety and high levels of stress." 11 The record contains a Discharge of Debtor issued by the U.S. Bankruptcy Court, dated July 5, 2012. 12 As we noted earlier, the ROI prepared in the underlying complaint contains medical records. However, those records were not provided on appeal. 13 The Agency submitted a blank copy of the posting notice which the Agency was to have displayed in its facility pursuant to its 2012 decision finding discrimination. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ 2 0120143098 2 0120143098