U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Amie H.,1 Complainant, v. Dr. David J. Shulkin, Secretary, Department of Veterans Affairs, Agency. Appeal No. 0120160528 Agency No. 2004-0590-2009104244 DECISION Complainant timely 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 final decision on the issue of compensatory damages, 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., and Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq. For the following reasons, the Commission MODIFIES the Agency's award of compensatory damages. ISSUE PRESENTED The issue presented is whether the Agency properly determined that Complainant was entitled to $10,000 in compensatory damages. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Licensed Practical Nurse in the Primary Care Center at the Agency's Veterans Affairs Medical Center in Hampton, Virginia. The issue presented in the underlying complaint was whether Complainant was subjected to discrimination based on disability and reprisal when on or about July 6, 2009, she learned that she was not selected for the Supervisory Social Services Assistant, GS-0186-8, position advertised under Job Announcement Number 171-09 because her supervisor (S1) gave her a negative job reference. On September 16, 2010, the Agency issued its final decision, finding that Complainant did not establish that she was subjected to discrimination as alleged. On appeal, the EEOC reversed the Agency's final decision, finding that Complainant was discriminated against on the basis of reprisal in violation of the Rehabilitation Act. Aime H. v. Dep't of Veterans Affairs, EEOC Appeal No. 0120110544 (Sep. 23, 2013), req. for recon. den'd, EEOC Request No. 0520140279 (Oct. 29. 2014). Therein, the EEOC, among other remedies, directed the Agency to conduct a supplemental investigation to determine Complainant's entitlement to compensatory damages. Agency's Final Decision on Compensatory Damages In its decision, the Agency awarded Complainant $10,000 in non-pecuniary compensatory damages. In coming to that amount, the Agency noted that Complainant claimed she suffered emotional distress, depression, and cried a lot as a result of the discriminatory conduct she endured in July 2009. The Agency also observed that the discrimination put a strain on Complainant's marriage, which resulted in a divorce from her husband. Complainant alleged that she had to retire because she was being subjected to a retaliatory hostile work environment and denied an accommodation from her supervisor. The Agency however found that Complainant failed to show that her non-selection in July 2009 was the direct or proximate cause of her disability retirement in June 2010. In so finding, the Agency noted that Complainant's allegations of harassment and a failure to accommodate were not adjudicated in the underlying complaint, and therefore outside the scope of the instant compensatory damage decision. The Agency further found that Complainant's depression pre-existed her non-selection in July 2009, as she was diagnosed with "depressive disorder" on January 20, 2009. The Agency additionally noted that Complainant's medical documentation dated December 1, 2009, and July 7, 2010, made no mention that the discrimination was a contributing factor to Complainant's depression. The Agency however cited to a written statement of a former coworker (CW1) who averred that she saw Complainant "grow into a deep depression including periods of sadness, sleeping all the time and feelings of hopelessness" after her non-selection in 2009. The Agency also made note of Complainant's ex-spouse's statement that S1's treatment of Complainant caused Complainant mental pain, which caused problems with their marriage and led to the resumption of Complainant's alcoholism. In further corroboration of Complainant's mental harm, the Agency referenced the statement of Complainant's Sponsor of her alcohol treatment program. Therein, the Sponsor stated that she learned that the "treatment the complainant received from her former supervisor . . . left her hurt, insecure and in constant inner conflict." In awarding Complainant $10,000 in non-pecuniary compensatory damages, the Agency found that her emotional harm was largely attributable to other factors that were not related to the discriminatory non-selection, such as her pre-existing depressive disorder, her lower back pain, her disability retirement, divorce, and the loss of several close friends. The Agency further denied Complainant's request to be reimbursed for her claimed medical expenses. CONTENTIONS ON APPEAL On appeal, Complainant, through her attorney, asserts that on November 8, 2008, she sought a reasonable accommodation for her diagnosed medical condition. Complainant contends that her request for reasonable accommodation created tremendous friction between her and S1. She asserts that the situation between her and S1 led to greater physical and mental health problems, as she was worried that she might lose her job due to her need for accommodation. Complainant states that she applied to the Supervisory Social Services Assistant in an effort to reduce the physical strain on her body and get out from under S1's supervision. Complainant however states that S1 provided a negative recommendation of her for the position, which the EEOC found to be retaliatory in EEOC Appeal No. 0120110544. Complainant additionally believes that her disability retirement was the direct and proximate case of not being selected to the position at issue. In so asserting, she states that the Agency had no intention of honoring her request for accommodation or of selecting her for the deserved position. She claims that she had no choice but to retire due to her depression and the continued intolerable environment working under S1. Complainant maintains that her retirement only brought on greater depression and even suicidal thoughts, which led to a divorce from her husband. She further maintains that her retirement caused her to lose her health care, and she suffered from her mental distress for over seven years. Complainant therefore seeks $250,000 in non-pecuniary compensatory damages.2 ANALYSIS AND FINDINGS Non-Pecuniary Compensatory Damages 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, 527 U.S. 212 (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). 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). 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. In the instant case, the record reflects that after the retaliatory non-selection, Complainant experienced, inter alia, depression, stress, humiliation, hopelessness, crying spells, sadness, excessive sleep patterns, social withdrawal, marital strife, and suicidal ideation. Complainant also filed for disability retirement shortly after the retaliation. There is no doubt that many of these symptoms were present before the Agency retaliated against Complainant relative to the non-selection. Nevertheless, the record shows that Complainant was under a high level of stress during her tenure as a nurse under S1's supervision. In so finding, we note that Complainant remained under S1's supervision after S1 provided the retaliatory negative job reference for her. As such, we are persuaded that the retaliatory non-selection significantly exacerbated Complainant's symptoms, and her hopes of escaping what she felt was an intolerable situation as a nurse under S1's supervision.3 We note that both Complainant's ex-husband and a coworker provided statements for the record detailing the mental harm that Complainant suffered. Compensatory Damage Investigative File (CDIF), at Ex. 5. Specifically, Complainant's coworker provided a statement dated March 12, 2015, for the record describing the emotional harm Complainant suffered: After the initial incident with [S1], Complainant was subjected to continuous incidents on the job due to [S1]. The final incident of [sic] when [Complainant] was not selected for the job in 2009, I have seen [Complainant] grow into a deep depression including periods of sadness, sleeping all the time and feelings of hopelessness. [Complainant] wanted to stay at work however the depression had increased and she was no longer able to work due to the stress. [Complainant] ended up having a divorce and started back drinking after years of sobriety. Complainant's depression has not improved as of this date. Id. After a thorough review of the record, we find, for the reasons set forth above, that an award of $10,000 is inadequate, and that $50,000 is appropriate to compensate Complainant for her pain and suffering resulting from the unlawful retaliation. The Commission notes that this award is not "monstrously excessive" standing alone, is not the product of passion or prejudice, and is consistent with the amount awarded in similar cases. In examining other cases awarding non-pecuniary compensatory damages in similar circumstances, we find that the amounts awarded, even with a deduction for pre-existing conditions, were higher than the $10,000 awarded by the Agency in this case. Specifically, in Lovett v. Dep't of Defense, EEOC Appeal No. 0120102682 (Dec. 20, 2011), req. for recon. den'd, EEOC Request No. 0520120391 (June 21, 2013) we awarded a complainant $50,000, finding that subsequent to his retaliatory non-selection, he experienced stress, anxiety, sleep problems, lack of interest in social activity, thoughts of violence towards himself and others. We also noted in Lovett that while complainant's symptoms were present before the Agency retaliated against complainant relative to the non-selection, the retaliatory non-selection significantly exacerbated complainant's symptoms, as his expectation of leaving what he felt was an intolerable work environment was not realized. This led to complainant subsequently filing for disability retirement, similar to the instant case. The Commission has awarded similar amounts in finding discrimination based on reprisal and on other bases where the employee described feelings of humiliation, low self-esteem, and marital strain. See Complainant v. Dep't of Trans., EEOC Appeal No. 0120080520 (Jan. 21, 2011) (complainant subjected to retaliation, and awarded $50,000 in compensatory damages based on testimony from complainant and complainant's family members indicating that complainant experienced emotional mood swings, marital strain, a general loss of self-esteem and stopped enjoying life); Tom S. v. Dep't of Justice, EEOC Appeal No. 0720140012 (Jan. 22, 2015) ($50,000 awarded after complainant's wife testified that the discrimination negatively affected their marriage, which led to a divorce); Hannah C. v. Dep't of Justice, EEOC appeal No. 0720150004 (Mar. 10, 2016) ($50,000 awarded for the harm suffered as a result of the agency's retaliatory actions); see also, e.g, Levy v. Dep't of Veterans Affairs, EEOC Appeal No. 01A01561 (May 12, 2003) ($60,000); and Holliday v. Dep't of Agriculture, EEOC Appeal No. 01A03047 (June 12, 2002) ($50,000). CONCLUSION Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we MODIFY the Agency's decision and remand this case to the Agency to take remedial action in accordance with the Order below. ORDER Within 120 days of the date this decision becomes final, the Agency shall pay Complainant $50,000 in non-pecuniary compensatory damages. 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: ______________________________ Carlton M. Hadden's signature Carlton M. Hadden, Director Office of Federal Operations 11-30-2017 __________________ 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 Complainant does not address reimbursement for medical expenses on appeal. Therefore, we have not addressed this matter herein. 3 The Commission applies the principle that "a tortfeasor takes its victims as it finds them." See Wallis v. U.S. Postal Serv., EEOC Appeal No. 01950510 (Nov. 13, 1995) (quoting Williamson v. Handy Button Mach, Co., 817 F.2d 1290, 1295 (7th Cir. 1987)). However, the Commission also applies two exceptions to this general rule. First, when a complainant has a pre-existing condition, the Agency is liable only for the additional harm or aggravation caused by the discrimination. Second, if the complainant's preexisting condition inevitably would have worsened, the Agency is entitled to a reduction in damages reflecting the extent to which the condition would have worsened even absent the discrimination; the burden of proof is on the Agency to establish the extent of this entitlement. Wallis, EEOC Appeal No. 01950510 (citing Maurer v. United States, 668 F.2d 98 (2d Cir. 1981)); Finlay v. U.S. Postal Serv., EEOC Appeal No. 01942985 (April 29, 1997). --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ 2 0120160528 2 0120160528