U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Faustino M.,1 Complainant, v. Megan J. Brennan, Postmaster General, United States Postal Service (Southern Area), Agency. Appeal No. 0120161783 Agency No. 4G-752-0271-14 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 concerning his claim for compensatory damages awarded pursuant to 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. For the following reasons, the Commission MODIFIES the Agency's final decision. ISSUE PRESENTED The issue presented is whether the Agency correctly provided Complainant with an appropriate amount in compensatory damages. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a City Letter Carrier in a Modified Limited Duty Position at the Agency's North Texas Processing & Distribution Center facility in Coppell, Texas. On December 8, 2014, Complainant filed an EEO complaint alleging that the Agency discriminated against him on the bases of disability (back) and reprisal for his Union activity when, on August 28, 2014, he was not afforded reasonable accommodation. Following the investigation, 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). When Complainant did not request a hearing within the time frame provided in 29 C.F.R. § 1614.108, the Agency issued a final decision pursuant to 29 C.F.R. § 1614.110(b). Therein, the Agency found that Complainant was an individual with a disability based on his back condition. The Agency noted that it provided Complainant with a limited duty assignment beginning on September 22, 2013, and that Complainant could perform the essential functions of his modified position with accommodations. Therefore, the Agency found that Complainant established that he was a qualified individual with a disability entitled to the protections of the Rehabilitation Act. With respect to Complainant's request for reasonable accommodation, the Agency noted that Complainant asked about moving the computer on his desk from the "standard" position because it would be more comfortable for him due to his back condition. The Agency noted that Complainant submitted a written note to his Supervisor requesting to move his computer to an angle that would allow him to have more support for his back and that was more comfortable for him. The Agency observed that his Supervisor granted his request for accommodation and allowed him to turn his computer as needed. The Agency found that a Manager then contacted the District Reasonable Accommodation Committee (DRAC), but Complainant failed to provide medical documentation to support his request. The Agency therefore found that Complainant was not denied a reasonable accommodation as alleged. On appeal, in Faustino M. v. United States Postal Service, EEOC Appeal No. 0120160319 (Feb. 25, 2016), the Commission reversed the Agency's final decision, finding that Complainant established that he was denied a reasonable accommodation for his disability as alleged. In so finding, the Commission noted that Complainant merely requested to shift the position of the monitor on his desk that his Supervisor granted. The Commission noted that when the Supervisor was on leave, the Manager however revoked the accommodation without sufficient explanation. The Commission therefore found that the Manager violated the Rehabilitation Act, and that Complainant was entitled to compensatory damages. In support of his claim for compensatory damages, Complainant submitted an affidavit for the record. Therein, Complainant attested that he has had severe flair-ups in his back condition due to the discrimination and had to take pain narcotics. Complainant further described a medical procedure he had to go through called a "Rhizotomy," where he had to go under anesthesia and have a needle inserted in his back in an effort to block the pain. Complainant attested that he thereafter had to go for physical therapy for several months. Complainant further stated that he was made to see his doctor several times, so he would have a doctor's note stating that he needed his computer equipment on an angle. Complainant attested that management embarrassed him by repeatedly asking him to visit his doctor. Complainant further stated that management has continued to threaten him and has not promoted him due to his EEO activity. 2 Complainant also submitted a statement from his spouse. In describing how the discrimination affected Complainant, Complainant's spouse stated that his stress at work caused a deterioration in their relationship and they separated from August 2014 through January 2015. Complainant's spouse observed that the denial of accommodation caused Complainant emotional and mental stress as well as embarrassment. Complainant's spouse further observed that Complainant became irritable, depressed, withdrawn, and unhappy. Complainant's coworker also submitted a statement that Complainant had been humiliated over his request for accommodation, and that Complainant appeared to be stressed over the situation. Another coworker submitted a letter for the record, noting: I sat by [Complainant] for a period of time and noticed his computer screen had been moved from the angled position to straight forward putting him at a severe angle in his seating position. He has a serious back problems [sic] including surgery and it was obvious that he was so uncomfortable and in severe pain from being forced from this screen moved by [management] . . . . He was off work numerous days because of pain and discomfort from being forced into this incorrect position and suffering daily just to make it thru the day. There was a mental toll of being the only person in the unit being force [sic] into a painful position because of [management's] discrimination against him. A third coworker submitted a statement for the record, stating that it was blatantly obvious that Complainant was uncomfortable and in severe pain when his accommodation was revoked. This coworker also stated that Complainant "was off of work numerous days because of pain and discomfort from being forced into this ergonomically incorrect position and was suffering daily while he was here." This worker observed that the discrimination took a mental toll on Complainant and that he became socially withdrawn over Management's actions. Agency's Final Decision on Compensatory Damages On April 13, 2015, the Agency issued its final decision concerning Complainant's entitlement to compensatory damages. The Agency first addressed Complainant's request to be reimbursed for 35 days of leave that he allegedly took because of the discomfort associated with not being allowed to arrange his computer monitor as he wished. The Agency noted however that EEOC Appeal No. 0120160319 did not order back pay or the restoration of leave. The Agency also noted, among other things, that Complainant did not identify 35 full days of leave that he used. The Agency secondly addressed Complainant's request to be reimbursed for $10,000 due to doctor visits in relation to his Office of Workers' Compensation Programs (OWCP) case. The Agency however found that this amount requested was not substantiated by any receipts, records of co-payments, or any other relevant documentation. The Agency noted that if the visits were related to Complainant's on-the-job injury, they should have been paid for through the OWCP. The Agency therefore denied this request for pecuniary compensatory damages. In addressing Complainant's request for non-pecuniary compensatory damages, the Agency found no evidence that Complainant suffered from any long-term physical or mental condition as a result of the matter involved in the instant complaint. In so finding, the Agency noted that Complainant underwent surgery in 2009, before he was denied the accommodation. The Agency further noted that Complainant did not present any medical documentation that he experienced any exacerbation of his back condition, as a result of not being allowed to orient his computer screen at a certain undescribed angle. The Agency noted that Complainant only simply advised his Supervisor in March of 2014 that having his computer screen straight does not allow him to support his back in a way that is comfortable for him. The Agency additionally found it confusing as to what sort of pain Complainant actually suffered because the procedure he underwent in September 2014 was for chronic low back pain and not for upper back, neck, and shoulder pain he allegedly suffered by looking at his computer monitor. The Agency found no evidence to establish that any medical procedure was undertaken because of the configuration of his desktop computer equipment. The Agency additionally found no evidence that Complainant was unable to work as result of being denied the accommodation. In so finding, the Agency noted that most of the leave that Complainant took around the time of his request for accommodation were for reasons that went unexplained. The Agency moreover found that Complainant did not submit medical documentation, showing that he suffered emotional harm as a result of the lack of accommodation. The Agency found that the statements from Complainant's wife and coworkers provided little support for his claim for compensatory damages. The Agency determined that Complainant's work stressors related in large part to his activities as a Union Steward and his inability to achieve upward mobility, rather than his denial of accommodation. The Agency considered other Commission cases and awarded Complainant $5,000 in non-pecuniary compensatory damages. CONTENTIONS ON APPEAL On appeal, Complainant believes that that Agency's award of $5,000 in compensatory damages is inadequate. Complainant argues that he has been subjected to retaliation as a result of his EEO complaint, which has caused him severe mental anguish. Complainant additionally notes that he took 35 days of leave as a result of being denied the accommodation, which was not part of his OWCP claim. Complainant also maintains that he should be reimbursed for his numerous doctor visits for his OWCP case. Complainant further claims that he had to go for physical therapy for six months due to the lack of accommodation from the Agency. Complainant asserts that he was maintaining his pain level when he was accommodated, but when his accommodation was taken away his pain level increased to the point where he had to stay home. Complainant argues that the Agency improperly discounted his medical documentation wherein his doctor explicitly stated that he needed his computer adjusted for him to work in a comfortable manner. Complainant maintains that the revoking of his accommodation forced him to sit in a position that was unnatural for him, which caused increased pain to his lower back, upper back, and neck area. Complainant also claims he had to undergo two Rhizotomy procedures for the left and right sides of his back as well as steroidal injections. Complainant maintains that the Agency is improperly denying reimbursement for his used sick leave and LWOP for the time he could not come to work due to the lack of accommodation. Complainant requests about $300,000 in compensatory damages. Complainant further contends that the Agency has not properly complied with the Commission's order with respect to training and the consideration of discipline of the responsible management official. Complainant additionally asserts that the Agency did not comply with the Commission's Posting Order.3 In response, the Agency, among other things, requests that its decision on compensatory damages be affirmed. STANDARD OF REVIEW 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, at Chapter 9, § VI.A. (Aug. 5, 2015) (EEO MD-110) (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 EEOC "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"). ANALYSIS AND FINDINGS Pecuniary Damages Pecuniary losses are out-of-pocket expenses incurred as a result 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). "In a claim for pecuniary compensatory damages, Complainant must demonstrate, through appropriate evidence and documentation, the harm suffered as a result 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, the Complainant must prove that the employer's discriminatory actions were the cause of the pecuniary loss." Id. (internal citations omitted). In the instant case, Complainant requests to be reimbursed for doctor visits, physical therapy, and medical procedures. Like the Agency, we note that Complainant has not substantiated any amounts through receipts, records of co-payments, or any other relevant documentation. Accordingly, we find that Complainant failed to show an entitlement to pecuniary damages. Non-Pecuniary Compensatory 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, Enforcement Guidance on Compensatory and Punitive Damages Available Under Section 102 of the Civil Rights Act of 1991, 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 to 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 her 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, 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 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. In the instant case, the Agency found that the statements from Complainant's spouse and coworkers provided little support for his claim for compensatory damages. We disagree. Specifically, we note that Complainant's spouse and coworkers observed that Complainant experienced physical pain, mental stress, humiliation, depression, and embarrassment as a result of the denial of accommodation. Complainant's spouse stated that their relationship deteriorated and Complainant became socially withdrawn due to the discrimination. We note that Complainant expressed and witnesses observed that the lack of accommodation for Complainant exacerbated his back condition, as he had to sit in an awkward position for eight hours a day. Complainant attested that the lack of accommodation exacerbated his medical condition and he has had to undergo medical procedures and physical therapy as a result. We note that Complainant submitted medical documentation for the record dated September 22, 2014, which was during the same time period his accommodation was revoked. The medical documentation reflects that Complainant was having back issues during the time and received steroid injections for back and spine pain. In determining the amount of the award, we are guided by the principle that a compensatory damages award is limited to the amount necessary to compensate a complainant for the actual harm caused by the Agency's discriminatory action, and attempt to affix a reasonable dollar value to compensate a complainant for that portion of the emotional distress and related symptoms that were caused by the Agency's discrimination. See Webb v. U.S. Postal Serv., EEOC Appeal No. 0120070230 (Dec. 17, 2009) (citing EEOC Notice No. 915.002 (July 14, 1992) at 13). Consequently, Complainant cannot recover compensatory damages for harm related to those claims where no discrimination was found. Taking into account, however, the evidence of non-pecuniary damages submitted by Complainant for the denial of his reasonable accommodation request, we find the Agency's award of non-pecuniary compensatory damages in the amount of $5,000 to be inadequate. The Agency's award is partly based on its determination that Complainant underwent surgery in 2009, before he was denied accommodation. While we recognize that Complainant had some pre-existing conditions, the evidence shows that the discriminatory events at work exacerbated his conditions. While there is little medical evidence concerning the extent of that exacerbation, there are statements from multiple coworkers and Complainant himself attesting to the physical and psychological effects the events at work had on him. As such, we conclude that an award of $25,000 in non-pecuniary damages more appropriately compensates Complainant for the harm caused by the Agency. Our award takes into account the duration and severity of the harm suffered, and is neither "monstrously excessive" nor the product of passion or prejudice. We also find this amount is more consistent with the amount awarded in similar cases. See Marguerite W. v. Dep't of Labor, EEOC Appeal No. 0120142727 (Dec. 21, 2016) ($30,000 awarded when complainant experienced physical discomfort and humiliation after his computer monitor, which was given as an accommodation, was taken away); Rafalski v. U.S. Postal Serv., EEOC Appeal No. 0120093891 (Mar. 15, 2012) ($20,000 awarded when complainant's back condition was aggravated after his request for accommodation in the form of an ergonomic chair was denied); Price v. Dept. of Justice, EEOC Appeal No. 07A20104 (Sep. 24, 2003) ($25,000 where complainant experienced stress, embarrassment, and mental anguish); Flowers v. U.S. Postal Serv., EEOC Appeal No. 01A43114 (Oct. 7, 2004), request for recon. denied, EEOC Request No. 05A50243 (Jan. 11, 2005) ($20,000 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). Accordingly, Complainant is awarded $25,000 in non-pecuniary compensatory damages.4 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 on compensatory damages. ORDER The Agency, to the extent it has not already done so, shall, within one hundred and twenty (120) calendar days of the date this decision is issued, pay Complainant $25,000 in non-pecuniary compensatory damages. 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 that the corrective action has been implemented. 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 (R0610) This is a decision requiring the Agency to continue its administrative processing of your complaint. However, if you wish to file a civil action, you have the right to file such action in an appropriate United States District Court within ninety (90) calendar days from the date that you receive this decision. In the alternative, you may file a civil action after one hundred and eighty (180) calendar days of the date you filed your complaint with the Agency, or filed your appeal with the Commission. If you file a civil action, you must name as the defendant in the complaint the person who is the official Agency head or department head, identifying that person by his or her full name and official title. Failure to do so may result in the dismissal of your case in court. "Agency" or "department" means the national organization, and not the local office, facility or department in which you work. Filing a civil action will terminate the administrative processing of your complaint. RIGHT TO REQUEST COUNSEL (Z0815) If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may request permission from the court to proceed with the civil action without paying these fees or costs. Similarly, if you cannot afford an attorney to represent you in the civil action, you may request the court to appoint an attorney for you. You must submit the requests for waiver of court costs or appointment of an attorney directly to the court, not the Commission. The court has the sole discretion to grant or deny these types of requests. Such requests do not alter the time limits for filing a civil action (please read the paragraph titled Complainant's Right to File a Civil Action for the specific time limits). FOR THE COMMISSION: ______________________________ Carlton M. Hadden's signature Carlton M. Hadden, Director Office of Federal Operations 02/02/18 __________________ 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 has raised new events, contending that he Agency continues to discriminate and retaliate against him. Complainant is advised that if he wishes to pursue, through the EEO process, these additional claims he raised for the first time on appeal, he must initiate contact with an EEO Counselor within 15 days after he receives this decision. The Commission advises the Agency that if Complainant seeks EEO counseling regarding these new claims within the above 15-day period, the date Complainant filed the appeal statement in which he raised these claims with the Agency shall be deemed to be the date of the initial EEO contact, unless he previously contacted a counselor regarding these matters, in which case the earlier date would serve as the EEO Counselor contact date. Cf. Qatsha v. Dep't of the Navy, EEOC Request No. 05970201 (Jan. 16, 1998). 3 To the extent Complainant still wishes to challenge the Agency's compliance with EEOC Appeal No. 0120160319, he is entitled to file a Petition for Enforcement with this Commission's Office of Federal Operations (c/o Compliance. Division, P.O. Box 77960, Washington, DC 20013) pursuant to the provisions of 29 C.F.R. § 1614.503(a). Such a petition should refer to EEOC Compliance No. 0620160368. 4 On appeal, Complainant seeks reimbursement for sick leave and LWOP for the days he was absent as a result of the denial of accommodation. The remedy of leave restoration was not ordered in EEOC Appeal No. 0120160319. Complainant's request for leave restoration is equitable in nature rather than part of compensatory damages, and is beyond the scope of the order for relief in EEOC Appeal No. 0120160319. See Trina C. v. U.S. Postal Serv., EEOC Appeal No. 0120141973 (Nov. 14, 2014). If Complainant wished to challenge the remedies ordered in EEOC Appeal No. 0120160319, he should have done so during the appellate process of our prior decision or filed a request for reconsideration thereafter. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ 2 0120161783 8 0120161783