U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Mardell B,1 Complainant, v. Nancy A. Berryhill, Acting Commissioner, Social Security Administration, Agency. Appeal No. 0120172035 Agency No. ATL-14-0631-SSA DECISION On May 16, 2017, Complainant filed an appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from the Agency's April 20, 2017 final decision concerning its award of remedies to Complainant following its finding that she was discriminated against in violation of Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Claims Representative at the Agency's facility in Tuscaloosa, Alabama. On August 27, 2014, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the basis of disability when, on May 16, 2014, her reasonable accommodation request for a space heater was denied. 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 EEOC Administrative Judge (AJ). In accordance with Complainant's request, the Agency issued a final decision pursuant to 29 C.F.R. § 1614.110(b). The January 14, 2016 final decision concluded that Complainant proved that the Agency failed to provide her with reasonable accommodation to her disability in violation of the Rehabilitation Act when she was denied a space heater beginning in May 2014 and ongoing. Agency's Finding of Discrimination The Agency held that Complainant was first diagnosed with anemia and severe arthralgia/arthritis in 2010. On December 19, 2013, Complainant made her supervisors aware of her medical condition and her request to use a space heater to combat her cold work area as a reasonable accommodation. Complainant provided medical documentation to support her request for a space heater because she needs to be in an environment between 75 and 80 degrees. Complainant had been allowed to use a space heater until the District Manager sent an email instructing employees to take their heaters home. The Center for Material Resources was the office that responded to the request for a reasonable accommodation. Complainant was allowed to use a heating pad and an electric blanket. However, these did not help much because she needed to get out of her chair often to perform the duties of her position. As such, Complainant continued to perform the duties of her position causing constant hurt. The Agency denied Complainant's request on May 16, 2014. Complainant submitted additional medical documentation in August 2014. To the extent that Complainant's request was still pending before the Agency's Center for Material Resources, the Agency found that it had unduly delayed the processing of Complainant's request. As a result of the delay, the Agency noted that Complainant's medical condition has worsened or deteriorated "due to the cold air at work and not being able to use a space heater" which was substantiated by her doctor's note. In sum, the Agency concluded that the excessive delay in the processing of Complainant's request for a reasonable accommodation which resulted in a violation of the Rehabilitation Act. As remedies for the violation, the Agency's decision ordered the following: 1. provide a space heater as an accommodation; 2. post a notice of a discrimination finding; 3. disseminate Agency policies prohibiting discrimination based on physical or mental disability; 4. conduct EEO training in the implicated office; and 5. conduct a supplemental investigation and issue a final decision on Complainant's claim for compensatory damages. The instant appeal arises from the Agency's April 20, 2017 final decision concerning Complainant's claim for compensatory damages. Agency's Decision on Compensatory Damages Pursuant to the Agency's finding of discrimination, on March 9, 2017, the Agency conducted a supplemental investigation regarding Complainant's entitlement to compensatory damages. Complainant provided an affidavit in support of her claim. In addition, several coworkers and friends provided supporting affidavits indicating that Complainant's condition worsened due to the failure to provide her with her requested reasonable accommodation. Complainant provided the Agency's Investigator with medical release forms to allow the Investigator to contact her physicians. Complainant provided a series of medical and prescription bills to the Investigator in support of her claim for pecuniary damages. The Investigator emailed the Attorney informing him that additional evidence such as an affidavit would be needed to connect the expenses with the harm Complainant experienced due to the failure to provide a reasonable accommodation. On April 20, 2017, the Agency issued its final decision regarding Complainant's entitlement to compensatory damages. The Agency noted that Complainant requested $ 2763.83 for medical visits and prescriptions. Complainant also indicated that she sustained out-of-pocket expenses when she had to purchase heating pads, an electric blanket, and gloves. The Agency denied this request for pecuniary damages. The Agency noted that Complainant failed to provide any evidence to establish a connection between the medical visits and prescriptions to the harm she experienced. Further, Complainant provided no proof of the other items she asserted she purchased. As such, the Agency denied Complainant's request for pecuniary damages based on the lack of supporting evidence. The Agency then turned to Complainant's claim for non-pecuniary damages. Complainant provided statements documenting the physical and emotional consequences that resulted from the stress of going back and forth with management regarding the space heater and from being forced to endure the cold office environment despite repeated accommodation requests. Complainant stated that she cries consistently because the Agency has made her feel like a victim. She added that she felt embarrassed, paranoid, depressed, and was unable to sleep at night. She stated that she also experienced worsening depression, PTSD, anxiety, insomnia, and paranoia, as a result of the Agency's actions. Complainant provided supporting statements from a family member, coworkers, and a friend who indicated that Complainant suffered emotionally following the Agency's failure to provide her with a reasonable accommodation. They indicated that Complainant became depressed, paranoid, and developed anxiety due to the discrimination and even stated that Complainant's physical appearance and personality changed drastically. Based on the evidence, the Agency held that Complainant established a link between the harm experienced and the Agency's unlawful action. Citing Commission cases, the Agency found that Complainant was entitled to $ 25,000 in non-pecuniary damages. This appeal followed. On appeal, Complainant and the Attorney argued that Complainant should have been provided with pecuniary damages and an increase in non-pecuniary damages from $ 50,000 to $ 95,000. In addition, the Attorney noted that the Agency failed to provide Complainant with attorney's fees and costs, as well as restoration of leave. ANALYSIS AND FINDINGS When discrimination is found, the respondent Agency must provide the employee with a remedy that constitutes full, make-whole relief to restore the employee as nearly as possible to the position he or she would have occupied absent 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). The Commission is authorized to award compensatory damages as part of the "make whole" relief for intentional discrimination. Past 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 11-23 (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). Complainant provided bills from her physician and her pharmacy. On appeal, the Attorney provided the Commission with Complainant's Physician's notes based on medical visits in 2014. We find that these notes alone do not provide support for her claim for pecuniary damages. Other documents within the record were related to her medical condition and the need for the reasonable accommodation. Further, Complainant stated in her affidavit that she experienced out of pocket expenses for gloves and a heating pad. She failed to provide any receipts or evidence of such expenses. As such, we find that the Agency properly denied Complainant's request for pecuniary damages. Future Pecuniary Damages Future pecuniary damages are losses likely to occur after the resolution of the complaint. MD-110 at 11-23 (citing EEOC Damages Guidance). Complainant requested future pecuniary damages but failed to provide any support for her request. As such, we find that the Agency correctly determined that Complainant has not shown that she is entitled to future pecuniary damages. Non-Pecuniary Damages Compensatory damages, however, are limited to the amount necessary to compensate an injured party for actual harm caused by the Agency's discriminatory action, even if the harm is intangible. Damiano v. U.S. Postal Serv., EEOC Request No. 05980311 (Feb. 26, 1999). Compensatory damages should consider the extent, nature and severity of the harm and the length of time the injured party endured the harm. Id.; Compensatory and Punitive Damages Available under Section 102 of the Civil Rights Act of 1991 (EEOC Damages Guidance), EEOC Notice No. 915.002 (July 14, 1992), at 11-12, 14. The Commission notes that a proper award of non-pecuniary compensatory damages, the amount of the award should not be "'monstrously excessive" standing alone, the product of passion or prejudice, and consistent with the amount awarded in similar cases. See Ward-Jenkins v. Dept. of Interior, EEOC Appeal No. 01961433 (Mar. 4, 1999) (citing Cygnar v. City of Chicago, 865 F.2d 827, 848 (7th Or. 1939). Upon review of the record, we find that the Agency's award of non-pecuniary damages is not in line with Complainant's harm and the Commission's case law. We reviewed the Commission's cases cited by the Agency in support of its award. We find that most of the cases citedwere not in complaints involving the Rehabilitation Act or reasonable accommodation. As such, we are not persuaded by a vast majority of the cases provided by the Agency in support of its award of $ 25,000. Complainant sought an increase in the award of non-pecuniary damages between $50,000 and $95,000. Based on the affidavits and documents provided by Complainant, we find that Complainant demonstrated that, due to the two-year delay in providing her with a reasonable accommodation, she experienced an exacerbation of her medical condition. In addition, Complainant produced evidence that she became depressed, suffered emotionally, and even changed physically based on the Agency's discriminatory action. As such, based on the Commission's cases law, severity and duration of the harm caused, we find that $70,000 is more in line with our previous awards. See e.g., Evanovich v. U.S. Postal Serv., EEOC Appeal No. 07A20029 (May 13, 2004) (providing $ 70,000 where Complainant experienced severe pain for 10 months and exacerbation of his hip condition due to the Agency's unlawful denial of reasonable accommodation); Gamez v. Social Sec. Admin., EEOC Appeal No. 07A20129 (Oct. 27, 2003), request for reconsideration denied EEOC Request No. 05A40247 (Dec. 30, 2003) (awarding $90,000 when Complainant was denied a reasonable accommodation where she provided evidence from close friends who testified that she experienced emotional distress, her relationship with her husband deteriorated, and she became withdrawn, and suffered lower self-esteem. Complainant's physician also indicated that complainant's symptoms were mild prior to her arrival at the Agency); Duncan v. Social Security Administration, Appeal No. 0120064557 (April 4, 2008) (Commission awarded complainant $50,000,00 for a failure to accommodate for a one-year period in which complainant experienced a worsening of preexisting conditions, difficulty completing chores, difficulty sleeping, depression). Request for Restoration of Leave On appeal, Complainant requested restoration of leave and fees and costs for the Attorney. We note that the issue of leave was not addressed by the final decision at issue in this appeal. The remedy of leave restoration was not ordered in the Agency's January 14, 2016 final decision finding discrimination, which Complainant did not appeal to this Commission. Complainant's request for leave restoration is equitable in nature rather than part of compensatory damages, and is beyond the scope of order for relief in the instant appeal. See Carter v. Dep't. of Veterans Affairs, EEOC Appeal No. 0120122266 (Oct. 18, 2012); see also Trina C. v. U.S. Postal Serv., EEOC Appeal No. 0120141973 (Nov. 14, 2014). Attorney's Fees and Costs As to the request for fees and costs for the Attorney for legal work through the decision on liability, we also find that this is outside of the scope of the Agency's final decision on appeal in the instant matter. 29 C.F.R. § 1614.501(e)(2) provides the process for submitting a claim for attorney's fees and costs by a prevailing party, and for the Agency's processing of such a claim, including the issuance of an appealable decision on attorney's fees and costs. However, we do affirmatively find that Complainant is entitled to attorney's fees and costs for the processing of her compensatory damages claim, including legal work on the supplemental investigation into damages and this appeal. 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 and REMAND the matter in accordance with the ORDER below. ORDER Within ninety (90) calendar days of the date this decision is issued, the Agency is ordered to issue payment to Complainant in the amount of $70,000 as 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 verifying that the corrective action has been implemented. ATTORNEY'S FEES 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 her compensatory damages award. 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 (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 31, 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 0120172035 2 0120172035