U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Marcelina Q.,1 Complainant, v. Steven T. Mnuchin, Secretary, Department of the Treasury (Internal Revenue Service), Agency. Appeal No. 0120160430 Agency No. IRS-14-0778-F DECISION On October 30, 2015, Complainant filed an appeal with the Equal Employment Opportunity Commission (EEOC or Commission), pursuant to 29 C.F.R. § 1614.403(a), from the Agency's October 2, 2015, final decision concerning her equal employment opportunity (EEO) complaint alleging employment discrimination in violation of Title VII of the Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. § 2000e et seq. For the following reasons, the Commission MODIFIES the Agency's final decision. ISSUE PRESENTED The issue presented is whether the Agency properly awarded Complainant $2,000 in nonpecuniary compensatory damages. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Tax Examining Technician at the Agency's Covington, Kentucky Service Center facility. On October 14, 2014, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the basis of reprisal for prior protected EEO activity under Title VII when: 1. On August 27, 2014, Complainant was charged 20 hours of absent without leave (AWOL); 2. On August 27, 2014, Complainant received two counseling memos: a. An undated memo titled "Counseling" and delivered on the afternoon of August 27, 2014, (Memo 1); and b. A memo dated August 27, 2014, titled "Unprofessional Conduct; Workplace Disruption; Conduct Unbecoming an IRS Employee" (Memo 2). At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation and notice of her right to request a hearing before an Equal Employment Opportunity Commission Administrative Judge (AJ). When Complainant did not request a hearing within the time frame provided in 29 C.F.R. § 1614.108(f), the Agency issued a final decision pursuant to 29 C.F.R. § 1614.110(b) on April 24, 2015. The decision concluded that Complainant proved that the Agency subjected her to discrimination as alleged when it issued her Memo 1. The Agency found that Complainant failed to establish by a preponderance of the evidence that she was subjected to discrimination when the Agency charged her AWOL or issued her Memo 2. As relief, the Agency's final decision ordered the removal of the undated memo titled "Counseling" from Complainant's personnel file, at least three hours of EEO training for the responsible management officials, appropriate discipline for the responsible management officials, posting of a notice, and an investigation into Complainant's entitlement to compensatory damages. Complainant requested the restoration of 46 hours of sick leave, that she be paid for 75 hours of leave without pay (LWOP) and 90 hours that she had been furloughed since June 2015, $60,000 in nonpecuniary compensatory damages, $8,000 in attorney's fees, and $67.90 in costs. Complainant indicated that she took 46 hours of sick leave between August 24, 2014, and May 30, 2015, and that she was forced to take 75 hours of LWOP between August 14, 2014, and May 30, 2015. Complainant stated that she was furloughed on June 3, 2015. Complainant averred that because of the retaliation, she became depressed, suffered from severe migraines, had trouble sleeping, became withdrawn from her family. According to Complainant, her preexisting back and neck pain was also exacerbated by the retaliation. Complainant's mother, Complainant's brother, and two of Complainant's coworkers stated that they had observed the emotional toll on Complainant and noticed her becoming more withdrawn. Complainant also provided a letter from her therapist, who stated that he had been seeing Complainant professionally since May 19, 2015, for stress, anxiety, and depressed mood. On October 2, 2015, the Agency issued a final decision concerning Complainant's entitlement to damages and attorney's fees. The Agency's final decision on damages denied Complainant's request for equitable relief, awarded Complainant $2,000 in nonpecuniary compensatory damages, and awarded Complainant $1,267.90 in attorney's fees and costs. The final decision found that the lost wages, sick leave, and use of LWOP were not related to the issuance of the retaliatory August 2014 memo. With respect to Complainant's request for $60,000 in nonpecuniary compensatory damages, the Agency found that much of the evidence presented by Complainant attributed Complainant's depressed mood to harassment that took place after August 2014 and the June 2015 furlough. CONTENTIONS ON APPEAL On appeal, Complainant requests that the compensatory damages award be increased, arguing that the Agency's final decision on damages placed too little emphasis on the evidence that she and her witnesses provided. In response to Complainant's appeal, the Agency contends that its final decision on damages should be affirmed. ANALYSIS AND FINDINGS When discrimination is found, the agency must provide the complainant with a remedy that constitutes full, make-whole relief to restore her as nearly as possible to the position she 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); Brown 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, 527 U.S. 212 (1999), the Supreme Court held that Congress afforded the Commission the authority to award compensatory damages in the administrative process. As a preliminary matter, we note that Complainant, who is not represented by an attorney on appeal, does not raise the issue of attorney's fees on appeal. Accordingly, the Commission exercises its discretion to not address the issue of attorney's fees. Restoration of Sick Leave and Payment for LWOP Hours and Furlough Hours Complainant has requested the restoration of 46 hours of sick leave, that she be paid for 75 hours of LWOP, and that she be paid for the 90 hours that she had been furloughed since June 2015. We find that the record does not support the restoration of Complainant's sick leave or the payment of Complainant for her LWOP because she failed to establish that she used the identified leave in order to seek medical treatment and/or seek emotional and psychological relief from the stress and emotional anguish caused by the Agency's discrimination. See Complainant v. Dep't of Justice, EEOC Appeal No. 0120123467 (April 3, 2015). With respect to Complainant's June 2015 furlough, we find that Complainant has failed to establish a nexus between the alleged harm and the discrimination. Moreover, we note that the furlough itself is at issue in a separate pending appeal, EEOC Appeal No. 0120161764. Accordingly, the Commission finds that Complainant is not entitled to the restoration of sick leave or payment for hours of LWOP or hours furloughed. Nonpecuniary Compensatory Damages Nonpecuniary 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 Enforcement Guidance: Compensatory and Punitive Damages Available Under Section 102 of the Civil Rights Act of 1991, EEOC Notice No. 915.002, at II.A.2 (July 14, 1992) (Compensatory Damages Guidance). There is no precise formula for determining the amount of damages for nonpecuniary 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 nonpecuniary compensatory damages are designed to remedy the harm caused by the discriminatory event rather than punish the Agency for the discriminatory action. Further, compensatory damages should not be "monstrously excessive" standing alone, should not be the product of passion or prejudice, and 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) (citing Cyngar v. City of Chicago, 865 F.2d 827, 848 (7th Cir. 1989)). Where a Complainant's emotional harm is due in part to personal difficulties, which were not caused or exacerbated by the discriminatory conduct, the Agency is liable only for the harm resulting from the discriminatory conduct. See Compensatory Damages Guidance, at II, A.2. 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 a 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 nonpecuniary losses that are incurred as a result of the discriminatory conduct. Id. Statements from others including family members, friends, health care providers, 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. A complainant's own testimony, along with the circumstances of a particular case, can suffice to sustain her 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. After a review of the record, we find that Complainant has proven her entitlement to compensatory damages due to the emotional distress be suffered from as a result of the Agency's discrimination. Complainant averred that as a result of the Agency issuing her the counseling memo, she has suffered from depression, severe migraines, and trouble sleeping, as well as becoming withdrawn from her family. Complainant stated that she also has suffered from an exacerbation of physical symptoms as well. Complainant's mother, brother, and coworkers submitted statements corroborating her claims that she has suffered from depression and emotional issues due to the discrimination. Complainant's medical evidence is less helpful, as the therapist stated that he did not begin treating her until approximately nine months after the discrimination occurred. Here, the Commission finds that $5,000 is an appropriate amount of compensatory damages, as Complainant presented sufficient evidence to establish that the Agency's actions caused at least some of her emotional distress. See Complainant v. U.S. Postal Serv., EEOC Appeal No. 0120132114 (May 29, 2015) ($5,000 in nonpecuniary damages where complainant suffered from insomnia, headaches, mood swings, marital issues, and exacerbation of physical symptoms); White v. Dep't of Veterans Affairs, EEOC Appeal No. 01950342 (June 13, 1997) ($5,000 in nonpecuniary damages where complainant with sparse medical evidence asserted that he experienced emotional distress as a result of harassment); Benson v. Dep't of Agriculture, EEOC Appeal No. 01952854 (June 27, 1996)($5,000 in nonpecuniary damages where complainant, his relatives, and coworkers asserted that complainant experienced embarrassment and humiliation due to various incidents of discrimination). We find this is an adequate award to compensate Complainant for the emotional distress and worsening of her condition that she suffered as a result of the discrimination. CONCLUSION Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we MODIFY the Agency's final decision. ORDER To the extent that it has not already done so, the Agency is ordered to take the following remedial actions: 1. Within thirty (30) calendar days of the date this decision is issued, the Agency is ordered to remove all documentation and references to the undated memorandum entitled "Counseling" from all local personnel files and her eOPF. 2. Within sixty (60) days of the date this decision is issued, the Agency shall issue Complainant nonpecuniary compensatory damages in the amount of $5,000.00, less any amounts previously awarded to Complainant as nonpecuniary compensatory damages. 3. Within sixty (60) days of the date this decision is issued, the Agency shall issue Complainant attorney's fees and costs in the amount of $1,267.90, less any amounts previously awarded to Complainant as attorney's fees and costs. 4. Within thirty (30) days of the date this decision is issued, the Agency shall post a notice, as provided in the statement entitled "Posting Order." 5. Within ninety (90) days of the date this decision is issued, the Agency shall provide a minimum of eight hours of in-person or interactive training to the responsible management officials, including the Supervisory Tax Examining Assistant who issued Complainant the memorandum. 6. Within sixty (60) days of the date this decision is issued, the Agency shall consider taking appropriate disciplinary action against the responsible management officials, including the Supervisory Tax Examining Assistant who issued Complainant the memorandum. The Commission does not consider training to be disciplinary action. The Agency shall report its decision to the Compliance Officer. If the Agency decides to take disciplinary action, it shall identify the action taken. If the Agency decides not to take disciplinary action, it shall set forth the reason(s) for its decision not to impose discipline. If any of the responsible management officials have left the Agency's employ, the Agency shall furnish documentation of their departure date(s). 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. POSTING ORDER (G0617) The Agency is ordered to post at its Covington, Kentucky Service Center 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 was issued, 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 as directed in the paragraph entitled "Implementation of the Commission's Decision," within 10 calendar days of the expiration of the posting period. The report must be in digital format, and must be submitted via the Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). ATTORNEY'S FEES (H1016) If Complainant has been represented by an attorney (as defined by 29 C.F.R. § 1614.501(e)(1)(iii)), 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 (K0617) 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 in the digital format required by the Commission, and submitted via the Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). 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: 11-28-2017 ______________________________ Carlton M. Hadden's signature Carlton M. Hadden, Director Office of Federal Operations __________________ 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 0120160430 2 0120160430