U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Harvey D.,1 Complainant, v. Michael R. Pompeo, Secretary, Department of State, Agency. Appeal No. 0120171079 Agency No. DOS-F-032-04 DECISION On January 9, 2017, 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 December 13, 2016, final decision concerning his claim for compensatory damages following the Commission's finding of 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's award of $5,000 in nonpecuniary compensatory damages is sufficient. BACKGROUND On March 9, 2004, Complainant filed an EEO complaint alleging that the Agency discriminated against him on the basis of disability when he was denied an appointment to a Junior Officer position with the Foreign Service. After an investigation, the Agency issued a final decision finding no discrimination. On appeal, the Commission found that the Agency discriminated against him when it failed to grant him a medical clearance based on its "worldwide availability" requirement. EEOC Appeal No. 0120051657 (Sep. 30, 2009). As relief, we ordered the Agency to retroactively offer Complainant a Junior Officer position, provide back pay, conduct a supplemental investigation regarding Complainant's entitlement to compensatory damages, provide training to and consider disciplining the responsible management officials, and post a notice of the finding of discrimination. Pursuant to this order, the Agency sent Complainant a conditional offer of appointment to a Junior Officer position, contingent on the satisfactory completion of the security, medical, and suitability clearance processes. Although Complainant received a medical clearance, on July 16, 2010, the Agency terminated Complainant's candidacy on suitability grounds. On April 11, 2012, the Agency issued a final decision denying compensatory damages, reasoning that the suitability finding would have resulted in the withdrawal of the conditional offer of employment even if Complainant had been granted a medical clearance for worldwide availability. Complainant appealed the Agency's final decision denying compensatory damages. We found that Complainant was entitled to compensatory damages, as the Agency's determination that Complainant was not entitled to compensatory damages was based on after-acquired evidence. EEOC Appeal No. 0120122385 (Oct. 22, 2015). Accordingly, we remanded the matter for a supplemental investigation concerning Complainant's entitlement to compensatory damages. Complainant requested $250,000 in nonpecuniary compensatory damages. During the supplemental investigation, Complainant provided a statement, as did his husband, his sister, and four friends. Complainant did not present any documentary evidence. Complainant stated that since 2003 he has become more and more depressed and reclusive due to the stress of the Agency's discrimination and experienced hopelessness and despair in the workplace and in his personal life. Complainant averred that he experienced sleeplessness, crying spells, significant weight loss, humiliation, anger, and helplessness. According to Complainant, his relationship with his husband suffered and he lost his enjoyment for life. Complainant's husband stated that he has noticed Complainant become anxious and depressed, lose his self-confidence, and become cynical and despondent. According to Complainant's husband, they no longer travel together, and Complainant no longer is active in his church or volunteer work. Complainant's sister stated that Complainant became quiet and withdrawn after his conditional job offer was revoked. A longtime friend of Complainant stated that he observed signs of anxiety and depression in him between 2003 and 2007. Another longtime friend stated that Complainant has become depressed and withdrawn. A third friend stated that Complainant became despondent when the job offer was revoked and became more and more depressed as time went on. Complainant's cousin-in-law averred that Complainant rarely leaves the house and no longer travels or spends as much time with family and friends. According to Complainant's cousin-in-law, she worries about him because he said "that everyone would be better off without him." Another cousin-in-law stated that Complainant withdrew socially and appeared hopeless. On December 13, 2016, the Agency issued a final decision awarding Complainant $5,000 in nonpecuniary compensatory damages. The Agency reasoned that the principal source of Complainant's emotional distress and depression was the length of time it took for his EEO complaint to be resolved. The Agency also noted that Complainant presented no medical evidence and that his depression could have been an exacerbation of a preexisting condition. The Agency stated that it awarded Complainant $5,000 because of his inconsistent symptoms of a short duration, because of the lack of medical evidence, and because the relationship between his symptoms and his participation in the EEO process. The instant appeal followed. CONTENTIONS ON APPEAL On appeal, Complainant contends that the $5,000 nonpecuniary compensatory damages award is "woefully inadequate." Complainant cites cases in which the Commission awarded $100,000 or more under similar circumstances, including cases where there was no medical evidence provided. Complainant requests that the nonpecuniary compensatory damages award be increased. In response to Complainant's appeal, the Agency contends that Complainant failed to offer a substantive basis for overturning its final decision. ANALYSIS AND FINDINGS When discrimination is found, the Agency must provide the complainant with a remedy that constitutes full, make-whole relief to restore him as nearly as possible to the position he would have occupied absent the discrimination. See, e.g., Franks v. Bowman Transp. Co., 424 U.S. 747, 764 (1976); Albemarle Paper Co. v. Moody, 422 U.S. 405, 418-19 (1975); Adesanya v. U.S. Postal Serv., EEOC Appeal No. 01933395 (July 21, 1994). Pursuant to section 102(a) of the Civil Rights Act of 1991, a complainant who establishes unlawful intentional discrimination under either Title VII of the Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. § 2000e et seq., or Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq. may receive compensatory damages for past and future pecuniary losses (i.e., out-of-pocket expenses) and non-pecuniary losses (e.g., pain and suffering, mental anguish) as part of this "make whole" relief. 42 U.S.C. § 1981a(b)(3). In West v. Gibson, 119 S.Ct. 1906 (1999), the Supreme Court held that Congress afforded the Commission the authority to award compensatory damages in the administrative process. For an employer with more than 500 employees, such as the Agency, the limit of liability for future pecuniary and nonpecuniary damages is $300,000. 42 U.S.C. § 1981a(b)(3). 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 Enforcement Guidance: Compensatory and Punitive Damages Available under § 102 of the Civil Rights Act of 1991, 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 nonpecuniary compensatory damages are designed to remedy the harm caused by the discriminatory event rather than punish the Agency for the discriminatory action. Furthermore, compensatory damages should not be motivated by passion or prejudice or be "monstrously excessive" standing alone, but should be consistent with the amounts awarded in similar cases. See Ward-Jenkins v. Dep't of the Interior, EEOC Appeal No. 01961483 (Mar. 4, 1999). Evidence from a health care provider or other expert is not a mandatory prerequisite for recovery of compensatory damages for emotional harm. See Lawrence v. U.S. Postal Serv., EEOC Appeal No. 01952288 (Apr. 18, 1996) (citing Carle v. Dep't of the Navy, EEOC Appeal No. 01922369 (Jan. 5, 1993)). Objective evidence of compensatory damages can include statements from Complainant concerning his emotional pain or suffering, inconvenience, mental anguish, loss of enjoyment of life, injury to professional standing, injury to character or reputation, injury to credit standing, loss of health, and any other non-pecuniary losses that are incurred as a result of the discriminatory conduct. Id. Citing the lack of medical evidence, the Agency awarded Complainant $5,000 in nonpecuniary compensatory damages. After a thorough review of the record, and given the severity, nature, and duration of the distress experienced by Complainant as a direct result of the discrimination, we find that an award of $50,000 in nonpecuniary compensatory damages to be more appropriate. We find that this amount is not motivated by passion or prejudice, is not "monstrously excessive" standing alone, and is consistent with the amounts awarded in other cases. See Alena C. v. Dep't of Veterans Affairs, EEOC Appeal No. 0720180003 (April 12, 2018) (awarding $50,000 following discriminatory nonselection where complainant began to experience pain, muscle spasms, and headaches, and became socially withdrawn); Cavanaugh v. U.S. Postal Serv., EEOC Appeal No. 07A20102 (Nov. 12, 2003) ($50,000 for discriminatory nonselection which led to exacerbation of depression and caused irritability, sleeplessness, and tension headaches); Woodard v. Dep't of Labor, EEOC Appeal No. 01A11604 (Oct. 11, 2002) (awarding $40,000 to complainant in a nonselection case who experienced mood swings, loss of sleep, weight loss, and loss of enjoyment of life; complainant sought treatment from a doctor and social worker for depression, however there was evidence of other contributing factors). 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 and REMAND the matter for further action in accordance with the ORDER below. ORDER Within forty-five (45) calendar days of the date this decision is issued, the Agency shall pay Complainant $50,000.00, less any amount already paid to Complainant as 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 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 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 (K0618) Under 29 C.F.R. § 1614.405(c) and §1614.502, compliance with the Commission's corrective action is mandatory. Within seven (7) calendar days of the completion of each ordered corrective action, the Agency shall submit via the Federal Sector EEO Portal (FedSEP) supporting documents in the digital format required by the Commission, referencing the compliance docket number under which compliance was being monitored. Once all compliance is complete, the Agency shall submit via FedSEP a final compliance report in the digital format required by the Commission. See 29 C.F.R. § 1614.403(g). The Agency's final report must contain supporting documentation when previously not uploaded, and the Agency must send a copy of all submissions to the Complainant and his/her representative. 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 August 23, 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 0120171079 7 0120171079