U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Margaret L.,1 Complainant, v. Robert Wilkie, Acting Secretary, Department of Veterans Affairs, Agency. Appeal Nos. 0120150582, 0120171877 Agency Nos. 2003-0657-2009104501, 2003-0657-2014104806 DECISION Complainant filed two separate appeals with the Equal Employment Opportunity Commission (EEOC or Commission). We exercise our discretion to consolidate the appeals in this decision. See 29 C.F.R. § 1614.606. BACKGROUND EEOC Appeal No. 0120150582 During the period at issue, Complainant worked as a Registered Nurse for the Agency in St. Louis, Missouri. Complainant filed a formal EEO complaint. Complainant claimed that the Agency discriminated against her in reprisal for prior protected EEO activity. By letter dated April 15, 2010, the Agency accepted this formal complaint for investigation and determined that it was comprised of the following claims: Whether Complainant was subjected to a hostile work environment when: 1. In July 2009, named members of management and the Agency Police Chief escorted Complainant off the VA campus. 2. Management charged Complainant absence without leave for August 12, 13, 14, 17, and 18, 2009. 3. On or about August 12, 2009, Complainant received notification of a ten-day suspension. 4. On August 28, 2009, Complainant was informed that she could not use a duty telephone for personal use. 5. On or about August 31, 2009, [management] monitored Complainant's telephone and internet use. 6. On an ongoing basis from February 2009 through the present, management provided conflicting duty instructions to Complainant concerning patient care. 7. On an ongoing basis from February 2009 through the present, [management] scrutinized Complainant's performance. 8. On an ongoing basis, [management] monitored Complainant's arrival to duty time, length of break, and departure from duty time. 9. Management...monitored Complainant's conversations which she had in her office area. 10. Management instructed a co-worker of Complainant's to find fault in her work and to write her up. 11. On March 8, 2010, she was forced to clean out her workstation. 12. On March 8, 2010, she was escorted from the medical center by the VA police. 13. On March 8, 2010, she was denied access to the VA computer system, including her email and medical records. 14. On March 8, 2010, she was placed on administrative leave pending termination. 15. On March 8, 2010, she received a proposed termination letter. 16. On April 2, 2010, she was terminated from her position as a Registered Nurse.2 While the formal complaint was pending a hearing before an EEOC Administrative Judge (AJ) the parties entered into a settlement agreement dated July 7, 2014, in resolution of the complaint. The July 7, 2014 settlement agreement provided, in pertinent part, that: 2(B). Removal Action: Within ten days of execution of this Agreement VA will rescind and expunge the removal action to Complainant and within sixty days provide Complainant with payment of full back pay and all related benefits in accordance with the provisions of the Back Pay Act. . . . 4. Detailed Accounting: Within seventy-five days after the execution of this Agreement, VA agrees to provide Agency with a detailed accounting of action taken to comply with terms of this settlement. 5. Compensatory Damages: Both parties agree that this Agreement does not settle the Complainant's claim for compensatory damages which includes both pecuniary and non-pecuniary damages and also past, present, and future compensatory damages. The Agency also agrees Complainant is entitled to Compensatory Damages; however the parties cannot reach an agreement on the amount. Therefore, the parties agree to the following procedure in handling Complainant's allegation of compensatory damages. A. Complainant and Agency will have sixty days from execution of this Agreement to submit evidence regarding her compensatory damage claim to the [AJ]. B. After receiving Complainant's and Agency's compensatory damages evidence, the [AJ] will return complaint to Agency indicating all matters are settled other than the Complainant's allegations of compensatory damages. The [AJ] will state in her Order that Complainant is entitled to an award of compensatory damages and will order the Agency to review evidence and issue a compensatory damages final agency decision to Complainant within sixty days of Agency's receipt of AJ's Order. The Agency's Compensatory Damages Final Agency Decision will provide Complainant with appropriate appeal rights to the EEOC and/or District Court. If the Agency does not issue the Compensatory Damages Final Agency Decision within sixty days, the Agency agrees Complainant has right to immediately appeal to the Office of Federal Operations of the EEOC. On August 25, 2014, the AJ dismissed this matter finding that the parties had resolved the complaint by settlement agreement. The Order of Dismissal further provided that: "the parties have been notified by this [AJ] that Complainant is entitled to compensatory damages in this case. However, the parties were unable to reach a settlement agreement regarding the issue of compensatory damages. Therefore, the issue of compensatory damages is hereby remanded to the Agency for a Final Agency Decision regarding the issue of compensatory damages, exclusively. The parties have submitted evidence and arguments concerning the issue of compensatory damages, which shall be considered in the Final Agency Decision." Complainant subsequently filed an appeal with the Commission on various matters. Complainant asserted that the Agency failed to issue a final decision on the issue of compensatory damages pursuant to the July 2014 settlement agreement and was seeking a decision from the Commission on this issue. In addition, Complainant further asserted that she was unable to determine whether her back pay, current salary, TSP contributions and re-crediting of sick and annual leave have been calculated correctly and is requesting the Agency comply with the "detailed accounting" set forth in provision (4) of the July 2014 settlement agreement. On February 20, 2015, shortly after the instant appeal was filed, the Agency issued a final decision on the issue of compensatory damages pursuant to provision (5) of the July 7, 2014 settlement agreement. The Agency awarded Complainant $454.80 in past pecuniary damages reimbursing Complainant for health insurance costs during the time she did not work at the Agency. Final Agency Decision on Compensatory Damages (Comp. Dam. FAD) at 9. The Agency stated that Complainant did not submit documentation verifying the total amount that she paid in health insurance premiums during the time she was not working at the Agency. Id. at 9. While Complainant also stated that she incurred increase wear and tear on her car and parking expenses related to her employment with other employers, the Agency noted Complainant did not submit receipts of these travel and parking expenses. Id. at 8-9. The Agency denied Complainant's request for past pecuniary damages related to medications and medical visits. Specifically, the Agency stated that: Complainant did not request application of the collateral source rule, and she failed to provide detailed information concerning the medical expenses paid by her health insurer. Furthermore, the record shows that the [Agency] reinstated Complainant's Federal Employee Health Benefits (FEHB) retroactively to the date of her termination; therefore, Complainant had the ability to submit claims to her FEHB carrier for any out of pocket expenses that she incurred after April 10, 2010 (the date her coverage was previously terminated). Consequently, we deny Complainant's request for reimbursement of past medical expenses, as the evidence of record establishes that Complainant failed to provide any information concerning the portion of medical expenses paid by her health insurer. Final Agency Decision. at 8. Regarding the award of future pecuniary damages, the Agency found that "Complainant has sufficiently documented her estimate of future pecuniary expenses related to treatment she is expected to incur as a result of the discriminatory conduct." Complainant requested $271,038.24 in future pecuniary damages. The Agency, however, awarded Complainant $89,442.62 in future pecuniary damages. Id. at 11. The Agency noted that it was discounting "Complainant's total requested amount in order to account for her pre-existing medical conditions and the existence of additional stressors in this case." Id. The Agency awarded $60,000.00 in non-pecuniary damages. Id. at 17. On April 17, 2015, the Agency issued an additional final decision determining it was not in breach of the July 2014 settlement agreement. EEOC Appeal No. 0120171877, Agency Case No. 2003-0657-2014104806 On September 24, 2014, Complainant filed a formal EEO complaint claiming that the Agency subjected her to discrimination in reprisal for prior protected activity. The Agency accepted Complainant's complaint for investigation. Upon completion of the investigation, Complainant requested a final Agency decision. In its March 28, 2017 final decision, the Agency determined that Complainant's complaint was comprised of the following claims: A. The Supervisory Human Resources Specialist failed to ensure that she received her scheduled paychecks from August 11, 2014 through September 8, 2014. B. In December 2014, she discovered that $241.79 was being deducted from her pay over an alleged debt to the Agency that she was unaware existed. C. On March 23, 2015, the Supervisory Human Resources Specialist provided her back pay /deductions computation sheet whereby she learned that $8,002.42 had been deducted for medical insurance while she worked at a non-VA entity. D. On April 1, 2015, the Supervisory Human Resources Specialist notified her that because the Agency had been deducting her medical insurance while she worked at a non-VA entity, these deductions would affect her medical insurance if he decided to retire in the next five years. E. On April 6, 2015, she learned from her federal medical company that her insurance would be discontinued if the Agency could not correct her biweekly payment process. The Agency in its final decision found no discrimination. The Agency found that it articulated legitimate, nondiscriminatory reasons for its actions. Regarding claim (A), a delay in Complainant's paychecks, the Agency stated that were problems between the Defense Civilian Pay System (DCPS) and the Defense Finance and Accounting Service (DFAS). The Agency stated that when problems arose and Complainant did not get paid on time, it requested that DFAS provide a special pay date for complainant. The Agency stated that the special payment occurred on September 8, 2014. Regarding claim (B), the deduction of $241.79 from her pay, the Agency stated that this debt was for Complainant's contribution to the TSP which was not previously deducted when it issued her back pay payment. Regarding claim (C), the deduction of $8002.42 from her back pay, the Agency stated that this amount was for her federal employee health benefits premium. The Agency stated that this was done in compliance with the settlement agreement which required that Complainant be restored to all the benefits and entitlements that she would have had if she had not been terminated. Regarding claim (D), the Agency stated that Complainant was requesting reimbursement of the FEHB deduction that were taken from her back pay, and that it responded that if the FEHB deductions were not taken from Complainant's back pay then it could affect her ability to carry health benefits in her retirement. Regarding claim (E), that Complainant was contacted by her health insurance carrier, the Agency responded that it contacted the insurance carrier and explained to them the difficulties in updating Complainant's FEHB enrollment. The Agency further found that Complainant failed to establish, by a preponderance of the evidence, that the Agency's articulated reasons for its actions were pretext for unlawful retaliation. Complainant filed an appeal with the Commission's Office of Federal Operations (OFO) from the Agency's March 28, 2017 final decision. Complainant asserts that she has experienced ongoing issues with her benefits and pay since being reinstated to the Agency. Complainant further states that the Agency has failed to articulate specific reasons for its actions. Finally, Complainant states that the Agency is in breach of the July 2014 settlement agreement. In response, the Agency requests that we affirm its final decision finding no discrimination. ANALYSIS AND FINDINGS EEOC Appeal No. 0120150582 Compensatory Damages 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 non-pecuniary 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). Past Pecuniary Damages 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. Complainant seeks a total of $57,438 in past pecuniary damages. Specifically, Complainant is claiming $44,882.00 in past medication costs, $3,036.00 in past medical visits, and $9,520.00 in past miscellaneous expenses, including $5,000 for driving additional miles for her subsequent employment after her termination from the Agency, $3,000.00 in health insurance premiums, and $1,520 in parking charges for one her employers after her termination from the Agency. While Complainant is seeking $3000.00 in health insurance premiums, the record warrants awarding Complainant $454.80 for this expense. The Agency properly found Complainant failed to submit documentation verifying the total amount that she paid in health insurance premiums during the time that she did not work at the Agency. The record, however, does contain a copy of a single leave and earnings statement for the pay period ending on July 15, 2014, which shows that Complainant paid $454.80 for health insurance. Regarding Complainant's claim for parking expenses and increased wear and tear on her car based upon her employment subsequent to her termination from the Agency, the Agency properly denied these expenses. The Agency properly found Complainant "failed to submit receipts for these estimated travel and parking expenses and did not differentiate between normal wear and tear that was causally connected to her personal vehicle, and any additional wear and tear that was causally connected to the Agency's discrimination." Regarding Complainant's claim for past prescription medication and medical visits, we disagree with the Agency's complete denial of these expenses. The Agency asserts that Complainant did not request application of the collateral source rule and did not provide information concerning how much of her expenses were paid by her health insurance. We construe Complainant's compensatory damages submission as a request for the application of the collateral source rule based on her request for the total amount of these charges. Under the collateral source rule, an agency may not reduce its liability for damages because of payments made to a complainant from a collateral source. Complainant is required only to prove that she incurred the expenses to establish her entitlement to a corresponding damage award. She need not make the additional showing that she paid the expense. This Commission has consistently applied the collateral source rule in determining damages for over 20 years. See Woodrow B. v. Department of Health and Human Services, EEOC Appeal No. 0120143194 (May 13, 2016). In Wallis v. U.S. Postal Service, EEOC Appeal No. 01950510 (Nov. 13, 1995), the Commission determined that health insurance benefits funded by employer-paid premiums are collateral source funds and, therefore, not subject to offset. In Wallis, the Commission noted that although the Agency paid a substantial share of the complainant's health insurance premiums, the actual funds disbursed to pay the complainant's medical expenses were overwhelmingly those of the insurance company, as contributed by not just the Agency, but by the complainant and countless others. In sum, a complainant may be entitled to payment for damages in the form of medical expenses, even if those medical expenses were paid for with health insurance benefits. Here, Complainant is seeking payment for past medical visits associated with the Agency's actions. Complainant is seeking $640 in expenses for visits to her primary care physician. She states in a declaration that "many visits to [her primary care physician] were for collateral medical conditions as he was my primary care physician. My best estimate is that [six] visits were primarily due to depression...since February 2009 [for] $640." We find that this assertion alone is insufficient to establish this expense or that this expense was due to the Agency's actions at issue. We further note that there is no documentation from Complainant's primary care physician. Thus, these expenses are denied. The record contains a declaration under Penalty of Perjury from Complainant's psychiatrist (P1). P1 asserts that she has been treating Complainant since November 2012. P1 asserts that she has concluded that Complainant's major depression, generalized anxiety disorder, and [post-traumatic stress disorder] were caused by the harassment [Complainant] experienced at the [Agency] and her subsequent termination from employment..." P1 asserts that Complainant underwent a psychiatric assessment in November 2012, for which her office charged $300.00. P1 further states that subsequent visits cost $110. We find that Complainant is entitled to the $300.00 for the November 2012 initial assessment. We note that P1's declaration does not clearly indicate how many subsequent office visits she had with Complainant. While Complainant in her declaration indicates "approximately [ten] visits", the record does not contain documentation of ten visits with P1. However, the record contains copies of some notes from P1's appointments with Complainant. P1's notes are from eight different office visits (January 18, 2013, March 15, 2013, May 17, 2013, August 9, 2013, December 10, 2013, March 14, 2014, May 1, 2014, and June 27, 2014). Thus, we find that Complainant is entitled to $880.00 pertaining to her appointments with P1. The record contains a copy of a declaration under penalty of perjury from a Licensed Clinical Social Worker (SW1). Therein, he asserts that Complainant was referred by P1 and provided Complainant therapy designed to address "intrusive thoughts of being fired." SW1 states that he met with Complainant on three occasions and the sessions were $332 per session if not covered by insurance. Thus, we find that Complainant is entitled to $996.00. Regarding Complainant's claim for past medication expenses, we find that the Agency properly denied Complainant's request for $44,882.00. Upon review of the record in its entirety, we find that Complainant provided insufficient documentation for this expense. Complainant provided information regarding her past medications in her own declaration and P1's declaration. Complainant also provided documentation from pharmacies and health insurance providers pertaining to authorization for various prescriptions. However, the record is devoid of actual receipts and the costs of the medications during the actual period in which Complainant was allegedly on the medications.3 While the record contains a declaration under penalty of perjury from a licensed pharmacist indicating the price of various medications that Complainant was allegedly prescribed, it lists the price of various medications as of August 2014. Based on the foregoing, we find that Complainant is not entitled to $44,882.00 for past medication expenses. Based on the foregoing, the Agency shall pay Complainant a total of $2,630.80 in past pecuniary damages. Non-Pecuniary Compensatory Damages 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). While the Agency awarded $60,000 in non-pecuniary damages, we find that an award of $100,000 is more appropriate and is consistent with the amount awarded in similar cases. See Demarcus I. v. Dep't of Defense, EEOC Appeal No. 0120150529 (May 4, 2017) (OFO awarded complainant $100,000 in non-pecuniary damages after being subjected to unlawful harassment. The complainant experienced insomnia and feelings of dread and isolation. The complainant developed Post Traumatic Stress Disorder and required ongoing medication and therapy sessions. Complainant had experienced this emotional turmoil for several years and medical statements indicated that his condition would continue several years into the future). In the instant matter, the record reflects that Complainant experienced ongoing emotional trauma which resulted in her seeking medical treatment. The record contains a declaration from P1. Therein, P1 asserts that Complainant has been diagnosed with major depression, recurrent; generalized anxiety disorder, and Post Traumatic Stress Disorder. Specifically, P1 stated these conditions "were caused by the harassment [Complainant] experienced at the [Agency] and her subsequent termination...and this conclusion is made with reasonable degree of medical and psychiatric certainty." P1 further stated that "the duration of Complainant's need for continued medication treatment, and psychotherapy/counseling ...is at least through her retirement from the Agency and very likely the rest of her life." The record also contains declarations under penalty of perjury from long-term friends of Complainant. Complainant's friends stated that Complainant had crying spells, did not want to talk, and did not want to do anything. Complainant, in her own declaration, stated: During the time period of the harassment, I started to experience severe depression. I would just break down and cry. Episodes of crying occurred frequently at least several times a week. Sometimes I would break down crying several times each day. I became extremely introverted and would hardly ever leave my house. I started avoiding my friends and would not return their calls. I was constantly anxious and very nervous. During this time period, I also started becoming extremely paranoid and felt everybody was out to get me and stopped trusting people. I had trouble concentrating and trouble sleeping. I also started getting very mad over minor incidents and developed a bad temper... Based on the foregoing, we find an award of $100,000 in non-pecuniary damages is not monstrously excessive and is consistent with the amount awarded in similar cases. Future Pecuniary Damages 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. § 1981 a(b)(3). Because we awarded Complainant, $100,000 in non-pecuniary damages, Complainant's award of future pecuniary damages may not exceed $200,000 due to the statutory cap. As an initial matter, while Complainant asserts that the instant case involved two EEO complaints and thus she was entitled up to $600,000 in non-pecuniary and/or future pecuniary damages, we disagree. The record reflects that the matters at issue were processed as a formal complaint and an amendment to the initial complaint. In addition, the matters at issue constituted an ongoing harassment claim which culminated in Complainant's termination from the Agency. Based on the foregoing, we find that the statutory cap is $300,000. The Agency in its final decision found that "Complainant has sufficiently documented her estimate of future pecuniary damages related to treatment she is expected to incur as a result of the discriminatory conduct. [P1] indicated that Complainant would need to receive continued medication treatment and psychotherapy/counseling at least until she retires from [the Agency] (in approximately in nine years) and quite possibly for the rest of her life. [SW1] testified that Complainant's condition is 'quite serious', the type of therapy that he had provided can assist with decreasing the intensity or severity of her symptoms, and it can aid Complainant in returning to what would be considered a more normal productive life. Additionally, [a pharmacist] provided specific cash prices for the prescribed medications that Complainant would need to take for the next approximately nine years." Final Agency Decision at 10. The Agency however, reduced Complainant's future pecuniary damages award to $89,442.62, or one third of the requested amount. The Agency stated that Complainant had pre-existing mental health issues that pre-dated the events at issue. We disagree with the amount of the Agency's reduction of the Complainant's request for future pecuniary damages. A review of the record reflects that Complainant's past and anticipated future treatment is significantly based on the events at issue A review of P1's patient notes reflect, while at times Complainant referenced to P1 different challenges in her life (i.e. problems with her relationship with her boyfriend), the crux of Complainant's visits centered on the effects of her termination and the harassment during the period in question. Thus, we find that a one-half reduction of the requested amount is proper. Based on the foregoing, we find that the Agency improperly reduced Complainant's $271,038.244 request in future pecuniary damages to $89,442.62. We find that an award of $135,519.12 (reducing the requested amount by one-half or $135,519.12) is proper based on the documentation that while Complainant had experienced other stressors which she discussed with her medical professionals, her medical treatment was based in significant part on the Agency's unlawful discrimination. Breach Claim of July 2014 Settlement Agreement Complainant, through her attorney, asserts that she is unable to determine if the Agency properly calculated her back pay and other benefits such as, the crediting of Complainant's annual and sick leave and TSP contributions. In an April 17, 2015 final determination, the Agency found that it was not in breach of the settlement agreement. Provision 2(B) of the settlement agreement provides "Removal Action: Within ten days of execution of this Agreement VA will rescind and expunge the removal action to Complainant and within sixty days provide Complainant with payment of full back pay and all related benefits in accordance with the provisions of the Back Pay Act." We acknowledge that the record contains various printouts with respect to Complainant's back pay. However, we are unable to determine from the documents in the record if Complainant's back pay and "all related benefits" were properly calculated. Accordingly, we order the Agency to supplement the record and issue a new final decision to indicate whether it is in compliance with provision 2(B) of the settlement agreement. Attorney's Fees Associated with EEOC Appeal No. 0120113923 (Nov. 19, 2012) Finally, as part of the instant appeal, Complainant, through her attorney, seeks attorney's fees for a prior matter, a settlement breach claim on a November 4, 2010 settlement agreement. Specifically, Complainant states that she filed a Petition for Attorney's Fees and has followed up regarding this matter without a response. Complainant is requesting an order from EEOC directing the Agency to pay attorney's fees for this prior breach claim. In EEOC Appeal No. 0120113923, we found that the Agency was not in full compliance with the settlement agreement and ordered the Agency to take various actions, as noted above. However, EEOC Appeal No. 0120113923 did not expressly award Complainant attorney's fees. While Complainant, through her attorney, asserts that she filed a Petition for Attorney's Fees, Complainant should have filed a request for reconsideration from EEOC Appeal No. 0120113923, if she disagreed with the relief ordered in this decision (EEOC Appeal No. 0120113923). A review of EEOC records does not reflect that Complainant filed a request for reconsideration on this matter. Based on the foregoing, we decline to further address this matter herein. EEOC Appeal No. 0120171877, Agency Case No. 2003-0657-2014104806 We find that assuming arguendo that Complainant established a prima facie case of retaliation, the Agency articulated legitimate, nondiscriminatory reasons for its actions. A claim of disparate treatment is examined under the three-part analysis first enunciated in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). For complainant to prevail, he must first establish a prima facie case of discrimination by presenting facts that, if unexplained, reasonably give rise to an inference of discrimination, i.e., that a prohibited consideration was a factor in the adverse employment action. See McDonnell Douglas, 411 U.S. at 802; Furnco Construction Corp. v. Waters, 438 U.S. 567 (1978). The burden then shifts to the agency to articulate a legitimate, nondiscriminatory reason for its actions. See Texas Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981). Once the agency has met its burden, the complainant bears the ultimate responsibility to persuade the fact finder by a preponderance of the evidence that the agency acted on the basis of a prohibited reason. See St. Mary's Honor Center v. Hicks, 509 U.S. 502 (1993). This established order of analysis in discrimination cases, in which the first step normally consists of determining the existence of a prima facie case, need not be followed in all cases. Where the agency has articulated a legitimate, nondiscriminatory reason for the personnel action at issue, the factual inquiry can proceed directly to the third step of the McDonnell Douglas analysis, the ultimate issue of whether complainant has shown by a preponderance of the evidence that the agency's actions were motivated by discrimination. See U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 713-714 (1983); Hernandez v. Dep't of Transportation, EEOC Request No. 05900159 (June 28, 1990); Peterson v. Dep't of Health and Human Services, EEOC Request No. 05900467 (June 8, 1990); Washington v. Dep't of the Navy, EEOC Petition No. 03900056 (May 31, 1990). Regarding claim (A), the delay in Complainant's paychecks, the record contains an affidavit from the Supervisor of the Labor and Employee Relations Section (SLE). Therein, SLE asserted that there were problems between DCPS and DFAS. She further stated that "[Complainant] had been off the rolls for a very long time. So they had to go back and treat her as if she had never left. And they had to process every personnel action that should have taken place between the time she was removed and the time that [she was] brought back work. That's a lot of actions..." Report of Investigation (ROI) at 224-225. SLE stated that due to the delay, DFAS did provide special pay for Complainant on September 8, 2014 for the period of August 11- August 23, 2014. ROI at 225-226. Regarding claim (B), the debt being deducted from Complainant's pay, the record contains an affidavit from a supervisor at the Network Business Office (SNBO). Therein, she asserted that the Agency overpaid Complainant by not taking out the proper deductions for her Thrift Savings Plan (TSP) and that it needed to recoup this overpayment. ROI at 344. EEOC Appeal No. 0120150582 also contains a memorandum for Complainant dated December 8, 2014 from a Supervisor, DFAS. Therein, the Supervisor asserted that Complainant was overpaid regarding her TSP. Regarding Claim (C), SLE, in her affidavit, asserted that the Agency needed to deduct Complainant's health insurance premiums from her back pay due to the terms of the settlement agreement which provided, according to SLE, that Complainant be returned to the rolls as if she never left. ROI at 236. Regarding claim (D), SLE, in her affidavit, asserted that Complainant was seeking reimbursement of the deductions of her health insurance premiums. SLE further stated that if the Agency did not deduct for FEHB this may have consequences for Complainant carrying her health insurance into her retirement. SLE noted that an employee needs to have FEHB for five years prior to retirement if they wish to carry FEHB into their retirement. ROI at 236-237. Regarding claim (E), in which Complainant received a letter from her insurance company that the payroll office records do not show Complainant being enrolled in the plan, the record contains an affidavit from an Analyst. Therein, she asserted that she contacted the carrier and explained to them that the Agency was having difficulty in updating Complainant's record to reflect her health insurance. ROI at 355. The Analyst stated that the carrier updated her records to reflect her eligibility. Id. We further find that the Agency properly found that Complainant failed to establish, by a preponderance of the evidence, that the Agency's articulated reasons for its actions were pretext for retaliation. While Complainant identified a comparator, a co-worker, who was terminated and brought back to work but did not have her pay delayed, the record reflects that this individual is not similarly situated to Complainant because Complainant was absent from the Agency for period of several years while the co-worker was absent less than a year. In addition, the record reflects that the co-worker also had filed an EEO complaint pertaining to her termination. ROI at 364. We concur with the Agency that this "belies [Complainant's] allegation of retaliatory animus." Final Agency Decision at 8. To the extent, Complainant is alleging breach of the July 2014 agreement, please review our analysis of the settlement agreement under the section entitled "Breach Claim of July 2014 Settlement Agreement." If Complainant is raising a new settlement breach claim, she should contact the Agency EEO Director, in writing, regarding this matter pursuant to 29 C.F.R. § 1614.504(a). Accordingly, we AFFIRM the Agency's final decision for Agency Case No. 2003-0657-2014104806 finding no discrimination. ORDER Within sixty (60) days from the date this decision is issued, the Agency is ORDERED to take the following actions: 1. Pay Complainant $2,630.80 in past pecuniary compensatory damages. 2. Pay Complainant $ 135,519.12 in future pecuniary compensatory damages. 3. Pay Complainant $100,000 in non-pecuniary compensatory damages. 4. Supplement the record with documentation clearly reflecting that the Agency is in compliance with provision 2(B) of the July 2014 settlement agreement (such as an affidavit written in layperson terms describing how Complainant's back pay and all related benefits were calculated). Thereafter, the Agency shall issue a new final decision, with appeal rights to the Commission's Office of Federal Operations, with respect to whether the Agency is in compliance with provision 2(B) of the settlement agreement. 5. The Agency shall pay Complainant attorney's fees with respect to the processing of the successful portions of Appeal No. 0120150582 as set forth below in the paragraph entitled "Attorney's Fees." 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 (H1016) If Complainant has been represented by an attorney (as defined by 29 C.F.R. § 1614.501(e)(1)(iii)), he or 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 the date this decision was issued. 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 (M0617) 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. A party shall have twenty (20) calendar days of receipt of another party's timely request for reconsideration in which to submit a brief or statement in opposition. 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. Complainant's request 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 agency's request must be submitted in digital format via the EEOC's Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). 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 April 17, 2018 __________________ Date 1 This case has been randomly assigned a pseudonym which will replace Complainant's name when the decision is published to non-parties and the Commission's website. 2 The record reflects that Complainant amended her initial formal complaint. 3 Complainant, in her affidavit. asserts that she was on some of these medications since 2012. 4 The amount of $271,038.24 represented her future medical costs (medications and medical visits/therapy) for approximately nine years, which was Complainant's anticipated date of retirement. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ 2 0120150582 17 0120150582, 01220171877