U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Dallas D.,1 Complainant, v. Megan J. Brennan, Postmaster General, United States Postal Service (Pacific Area), Agency. Appeal No. 0120150319 Agency No. 4F-920-0126-12 DECISION The Commission accepts Complainant's appeal from the Agency's September 30, 2014, final decision concerning his claim for compensatory damages stemming 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. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Part-Time Flexible City Carrier at the Agency's Post Office in Indio, California. On October 3, 2012, Complainant filed a formal complaint alleging that the Agency discriminated against him based on disability (diabetes) when he was subjected to a hostile work environment, disparate treatment, and denied reasonable accommodation regarding a series of incidents that occurred between June 2012 and May 2013. After the investigation into the complaint, the Agency provided Complainant with a copy of the report of investigation and notice of his right to request a hearing before an Equal Employment Opportunity Commission Administrative Judge (AJ). In accordance with Complainant's request, 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 denied him reasonable accommodation or subjected him to discrimination or a hostile work environment as alleged. Complainant appealed and, in Complainant v. U.S. Postal Serv., EEOC Appeal No. 0120140761 (June 13, 2014), the Commission found that the Agency had denied Complainant reasonable accommodation and subjected him to a hostile work environment based on his disability. The Commission found that, due to his medical condition, Complainant needed the Agency to allow him time to get his glucose levels under control. Instead of addressing his requests for leave as a reasonable accommodation request for flexibility in allowing him to take leave when medically indicated, Complainant's supervisor would order Complainant to return to work. When Complainant indicated that he could not do so, he would leave the workplace due to his medical condition and his supervisor would issue disciplinary action for failing to comply with her orders. Furthermore, the Commission found that Complainant's supervisor failed to provide Complainant with reasonable accommodation when his eight-hour work restriction was ignored. Finally, the Commission found that Complainant's supervisor had harassed Complainant with requests for medical documentation, investigative interviews, discipline, negative comments about his medical condition, and an aggressive attitude towards Complainant's leave requests and limitations. As a result, the Commission found that Complainant had been denied reasonable accommodation and 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 regarding Complainant's entitlement to compensatory damages. Following its supplemental investigation, the Agency issued its final decision regarding compensatory damages on September 30, 2014. The Agency determined that Complainant failed to establish an entitlement to pecuniary damages. The Agency awarded Complainant $12,000.00 in non-pecuniary compensatory damages. The instant appeal followed. CONTENTIONS ON APPEAL On appeal, Complainant contends that he suffered depression and anxiety because of the harassment and discrimination he suffered. While diabetes was a preexisting condition, Complainant argues that stress from the discrimination, not being able to take his shots when needed, and working over his restrictions negatively affected his condition. This caused him to develop neuropathy and depression, and led to him being prescribed multiple medications. Complainant claims that he presented evidence that he attempted suicide, which the Agency questioned in the final decision. Accordingly, Complainant requests that the Commission award him pecuniary damages and increase the Agency's award of non-pecuniary damages. 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 (EEO MD-110), 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 the Commission "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"). When discrimination is found, the Agency must provide the complainant with a remedy that constitutes 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 Transp. Co., 424 U.S. 747, 764 (1976); Albemarle Paper Co. v. Moody, 422 U.S. 405, 418-19 (1975); Adesanya v. U.S. Postal Serv., EEOC Appeal No. 01933395 (July 21, 1994). Pursuant to section 102(a) of the Civil Rights Act of 1991, a complainant who establishes unlawful intentional discrimination under either Title VII of the Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. § 2000e et seq., or Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq. may receive compensatory damages for past and future pecuniary losses (i.e., out-of-pocket expenses) and non-pecuniary losses (e.g., pain and suffering, mental anguish) as part of this "make whole" relief. 42 U.S.C. § 1981a(b)(3). In West v. Gibson, 119 S.Ct. 1906 (1999), the Supreme Court held that Congress afforded the Commission the authority to award compensatory damages in the administrative process. 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. 42 U.S.C. § 1981a(b)(3). Pecuniary Damages Pecuniary losses are out-of-pocket expenses incurred because 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. EEO MD-110, at Chap. 11, VII.B.2 (Aug. 5, 2015) (internal citations omitted). Future pecuniary damages are losses likely to occur after the resolution of the complaint. In a claim for pecuniary compensatory damages, Complainant must demonstrate, through appropriate evidence and documentation, the harm suffered because 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, Complainant must prove that the employer's discriminatory actions were the cause of the pecuniary loss. Id. (internal citations omitted). Complainant requested $67,183.60 in pecuniary damages. That total included $5,600.00 for 40 years of future visits to his foot doctor; $2,800.00 for 40 years of future visits to his neurologist; $40,000.00 for 40 years of future medications; $1,503.60 for an insulin pump; and $17,280.00 for future costs of equipment for an insulin pump. Supp'l ROI, at 162. Complainant specifically stated that he was not requesting reimbursement for past co-pays, doctor's visits, hospital visits, and medication costs. Id. With respect to his request for the costs of future visits to the foot doctor and neurologist, the Commission agrees with the Agency's finding that the requests are not supported by the evidence in the record and are entirely speculative. Complainant states that he was diagnosed with diabetes when he was 17 years old. The discriminatory events at issue occurred between June 2012 and May 2013. Complainant submitted documentation indicating that he first received medical treatment for foot pain related to diabetic neuropathy in June 2012, approximately five days after the first discriminatory incident. Supp'l ROI, at 78. The Agency argues that this shows that Complainant's neuropathy could not have been caused by events at work as neuropathy is believed to be caused by prolonged high blood sugar in diabetics. Complainant informed his doctor in a follow-up examination in July 2012 that his foot pain had subsided since beginning medication. Id. at 82. The record indicates that Complainant continued treatment and various medications, but did not complain of foot pain again until March 2013. Id. at 108. The Agency noted that Complainant had been out on dependent care leave following the birth of his son prior to this visit to his doctor. Additionally, in his submitted medical documentation, one doctor who had treated Complainant since November 2013 stated that Complainant experienced painful Diabetic Peripheral Neuropathy, but the exact cause of the condition was not known. Supp'l ROI, at 69. Nonetheless, the doctor noted that fluctuations in and poor control of blood sugar levels due to stress could lead to diabetic complications, including neuropathy. Id. Complainant was placed on medication for pain control due to diabetic neuropathy, which he will need for the rest of his life to prevent nerve damage. Id. At various points in the record, doctors noted that Complainant was not checking his blood sugar levels adequately, not compliant in taking medication, and not following a proper diet. Id. at 82, 84, 87, 103. While documentation additionally indicates that Complainant complained to his doctors about work-related stress, the record supports that Complainant's pre-existing condition and his failure to adhere to his doctors' care recommendations significantly contributed to his diabetic neuropathy and foot condition. Additionally, there is insufficient evidence in the record detailing Complainant's future treatment needs, the duration of the treatment, and the full costs of the treatment. Complainant has not persuasively shown a causal connection between the discrimination and medical expenses he may incur in the future. Thus, the Commission finds that Complainant has not established an entitlement to an award for future costs of visits to his foot doctor and neurologist and the associated future medication costs. With respect to his request for future medication costs for depression, the record reveals that Complainant had been treated for depression and anxiety prior to the discriminatory events at issue. Supp'l ROI, at 70-73, 75. Complainant was treated for an anxiety-related incident in December 2012 following one of the Agency's discriminatory actions. Id. at 133-34. Complainant's medical reports further indicate that he was prescribed Cymbalta for depression starting in June 2013. Id. at 110. Complainant's doctor stated that Cymbalta is an antidepressant, but is also widely used for diabetic neuropathic pain control. Id. at 69. Further, the doctor declared that Complainant had developed some depression because of the pain and that Cymbalta was effective in management of his symptoms. Id. Accordingly, Complainant's doctor connected Complainant's depression to the pain from his diabetic neuropathy condition, and not the Agency's discriminatory actions. As a result, the Commission agrees with the Agency that Complainant has not established an entitlement to costs related to future treatment and medication for depression and anxiety. Finally, with respect to his request for costs related to the insulin pump and supplies, the record shows that Complainant first purchased and received an insulin pump around July 2014, much later than the discriminatory incidents at issue occurred. Supp'l ROI, at 156. The record indicates that in December 2013, Complainant's doctor considered prescribing Complainant an insulin pump, but believed that Complainant first needed to control his blood sugar. Id. at 110. Complainant has presented no evidence linking his need for the insulin pump to the Agency's discriminatory actions. Accordingly, the Commission finds that Complainant is not entitled to reimbursement for the costs of the insulin pump and lifelong supplies. As a result, the Commission finds that Complainant has not established an entitlement to pecuniary damages. Non-Pecuniary Damages 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. 915.302 at 10 (July 14, 1992). There is no precise formula for determining the amount of damages for non-pecuniary losses except that the award should reflect the nature and severity of the harm and the duration or expected duration of the harm. See Loving v. Dep't of the Treasury, EEOC Appeal No. 01955789 (Aug. 29, 1997). The Commission notes that non-pecuniary compensatory damages are designed to remedy the harm caused by the discriminatory event rather than punish the Agency for the discriminatory action. Furthermore, compensatory damages should not be motivated by passion or prejudice or be "monstrously excessive" standing alone, but should be consistent with the amounts awarded in similar cases. See Ward-Jenkins v. Dep't of the Interior, EEOC Appeal No. 01961483 (Mar. 4, 1999). Evidence from a health care provider or other expert is not a mandatory prerequisite for recovery of compensatory damages for emotional harm. See Lawrence v. U.S. Postal Serv., EEOC Appeal No. 01952288 (Apr. 18, 1996) (citing Carle v. Dep't of the Navy, EEOC Appeal No. 01922369 (Jan. 5, 1993)). Objective evidence of compensatory damages can include statements from Complainant concerning his emotional pain or suffering, inconvenience, mental anguish, loss of enjoyment of life, 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. Id. Statements from others including family members, friends, health care providers, and 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. Id. Complainant's own testimony, along with the circumstances of a particular case, can suffice to sustain his burden in this regard. Id. The more inherently degrading or humiliating the defendant's action is, the more reasonable it is to infer that a person would suffer humiliation or distress from that action. Id. The absence of supporting evidence, however, may affect the amount of damages appropriate in specific cases. Id. Here, Complainant attested that he suffered extreme stress and marital problems, exacerbation of his pre-existing conditions, constant abdominal pain which was later diagnosed as anxiety, isolation from his family and social gatherings, and attempted suicide due to the Agency's discriminatory actions. Supp'l ROI, at 47-51. Complainant's wife confirmed that Complainant suffered physical and severe emotional distress. Id. at 53-56. Complainant submitted several statements from family members stating they witnessed mental anguish and the familial strife Complainant experienced because of the stress of his work situation. Id. at 57-59. The Commission finds that an award of $30,000.00 is more appropriate than the $12,000.00 awarded by the Agency, given the nature and duration of the harm. The Commission finds that this award is supported by the evidence, is neither "monstrously excessive" nor the product of passion or prejudice, and is consistent with prior Commission precedent. See Banks v. U.S. Postal Serv., EEOC Appeal No. 07A20037 (Sept. 29, 2003) ($35,000 awarded where complainant suffered from emotional harm in the form of humiliation, intimidation, embarrassment, and deep depression); McNeese-Ards v. Dep't of Veterans Affairs, EEOC Appeal No. 0720090027 (Apr. 15, 2010) ($45,000 in non-pecuniary compensatory damages awarded where complainant suffered from depression, loss of sleep, severe emotional distress, and anxiety); Flowers v. United States Postal Service, EEOC Appeal No. 01A43114 (Oct. 7, 2004), request for recon. denied, EEOC Request No. 05A50243 (Jan. 11, 2005) ($20,000.00 where complainant established that, despite other contributing factors, discrimination resulted in sleeplessness, depression, emotional distress, anxiety, loss of enjoyment of life and strained family relationships). CONCLUSION Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, the Commission MODIFIES the Agency's final decision and REMANDS this matter for further processing in accordance with this Decision and the Order below. ORDER The Agency is ordered to take the following remedial action: 1. Pay Complainant $30,000.00 in non-pecuniary compensatory damages within 30 days from the date this decision is issued, minus any amounts already paid if any. 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 March 24, 2017 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 0120150319 9 0120150319