U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Darius C.,1 Complainant, v. Megan J. Brennan, Postmaster General, United States Postal Service (Capital Metro Area), Agency. Appeal No. 0120171165 Agency No. 1K-221-0006-15 DECISION 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 January 3, 2017, final decision concerning the Agency's award of compensatory damages. BACKGROUND During the period at issue, Complainant worked as a Mail Handler at the Agency's facility in Merrifield, Virginia. The record reflects the following chronology of events. On February 23, 2015, Complainant filed an EEO complaint alleging that the Agency discriminated against him on the basis of disability (deafness) when, in October 2014, management failed to provide an interpreter during a service talk. On August 7, 2015, the Agency issued a final decision finding no discrimination. Complainant filed an appeal with the Commission's Office of Federal Operations (OFO). In EEOC Appeal No. 0120160004 (Nov. 1, 2016), OFO found that the Agency failed to provide Complainant with a reasonable accommodation when it did not provide him with an interpreter for the service talk in question. OFO ordered the Agency to take numerous actions, including conducting a supplemental investigation pertaining to Complainant's entitlement to compensatory damages and subsequently issuing a final decision. In a final decision, dated January 3, 2017, the Agency determined that Complainant did not present any evidence of pecuniary damages.2 The Agency awarded Complainant $500 in non-pecuniary damages. The Agency noted that the incident at issue was a single event. The Agency noted that Complainant's supplemental affidavit "appears to speak about [his] work situation in general and cover[s] a much greater period of time than is involved in this complaint." The Agency cites to Braue v. U.S. Postal Service, EEOC Appeal No. 01A00230 (March 26, 2001,) in support of its decision. In Braue, OFO affirmed an Agency's final decision awarding Complainant $500 in nonpecuniary damages when the Agency failed to provide him with an interpreter for a service talk on one occasion. The instant appeal followed. On appeal, Complainant asserts that he is requesting $15,000 in non-pecuniary damages. ANALYSIS AND FINDINGS With respect to non-pecuniary compensatory damages, these are losses that are not subject to precise quantification, i.e., emotional pain, suffering, inconvenience, mental anguish, loss of enjoyment of life, injury to professional standing, injury to character and reputation, injury to credit standing, and loss of health. See Enforcement Guidance: Compensatory and Punitive Damages Available under § 102 of the Civil Rights Act of 1991 (EEOC Guidance), EEOC Notice No. 915.002 at 10 (July 14, 1992). Objective evidence in support of a claim for non-pecuniary damages claims includes statements from Complainant and others, including family members, co-workers, and medical professionals. See id.; see also Carle v. Dep't of the Navy, EEOC Appeal No. 01922369 (Jan. 5, 1993). Non-pecuniary damages must be limited to compensation for the actual harm suffered as a result of the Agency's discriminatory actions. See Carter v. Duncan-Higgans. Ltd., 727 F.2d 1225 (D.C. Cir. 1994); EEOC Guidance at 13. Additionally, the amount of the award should not be "monstrously excessive" standing alone, should not be the product of passion or prejudice, and should be consistent with the amount awarded in similar cases. See Jackson v. U.S. Postal Serv., EEOC Appeal No. 01972555 (April 15, 1999) (citing Cygnar v. City of Chicago, 865 F. 2d 827, 848 (7th Cir. 1989)). We concur with the Agency that Braue v. U.S. Postal Service, EEOC Appeal No. 01A00230 (March 26, 2001), is on point with the instant matter. In Braue, the complainant and his wife provided testimony that complainant felt it was a "slap in the face", his holidays were ruined, and he had difficulty maintaining his appetite when the agency failed to provide him with an interpreter on one occasion. Here, Complainant, in his initial affidavit dated April 27, 2015, asserts that he felt humiliated and that it affected his social interactions. ROI for Agency Case No. 1K-221-0006-15 at 76, 80. In addition, in the EEO Counselor's Report, which was part of the initial complaint file, Complainant stated he felt isolated from the conversation. ROI at 22. We note that Complainant also completed an affidavit on December 16, 2016, which was part of the Agency's supplemental investigation. He included a letter from his wife as part of the supplemental investigation. We concur with the Agency that both Complainant and his wife, in the supplemental investigation, reference a time span of events that are outside of the scope of this matter (solely the incident in October 2014 when Complainant was denied an interpreter). While we find Braue, which awarded the complainant $500 in non-pecuniary damages, to be on point, we note that Braue was issued in 2001, approximately 17 years ago. The Commission when determining an award of non-pecuniary damages may consider the present-day value of comparable awards. Lara G. v. U.S. Postal Service, EEOC 0520130618 (June 9, 2017). Given the nearly 17-year interval between the comparable award and Complainant's award, we find it appropriate to increase Complainant's award to $1,000. Finally, to the extent, on appeal, Complainant may be alleging new incidents of discrimination, he should contact an EEO Counselor, if he wishes to pursue these matters through the EEO process. Accordingly, we MODIFY the Agency's final decision and remand this matter to the Agency in accordance with the Order below. ORDER Within sixty (60) calendar days from the date this decision is issued the Agency shall: 1. Pay Complainant $1,000 in nonpecuniary 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. 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 October 12, 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 Complainant, on appeal, does not expressly contest the Agency's award of pecuniary damages. Thus, we decline to address this matter further herein. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ 2 0120171165 5 0120171165