Kendrick B., Complainant v. Patrick R. Donahoe, Postmaster General, United States Postal Service (Great Lakes Area), Agency. Appeal No. 0720100036 Hearing No. 440-2009-00066X Agency Nos. 1J-607-0012-04, 4J-606-0247-04 DECISION Concurrent with its April 28, 2010 final order, the Agency timely filed an appeal challenging the March 10, 2010 decision of an EEOC Administrative Judge (AJ) regarding the remedies awarded in the above referenced matter. The Commission accepts the appeal pursuant to 29 C.F.R. § 1614.405(a). For the following reasons, the Commission REVERSES the Agency's final order and MODIFIES the AJ's decision. ISSUE PRESENTED Did the AJ properly award Complainant $210,000 in non-pecuniary compensatory damages? BACKGROUND At the time of the events giving rise to this complaint, Complainant worked as a Manager, Distribution Operations (MDO), EAS-20, at the Cardiss Collins Processing & Distribution Center (P&DC) in Chicago, Illinois. On October 1, 2003, Complainant was reassigned by the Senior MDO (LW) from his position managing the Automation unit to a different position managing the Small Parcel Bundle Sorter (SPBS) unit. Complainant's pay-level remained the same after his reassignment, whereas an EAS-24 MDO, who was at a higher pay-level and had previously served in the position to which Complainant was transferred, was assigned to Complainant's former position in the Automation unit. On December 12, 2003, Complainant filed an EEO complaint (Agency No. 1J-607-0012-04) alleging that he was discriminated against on the bases of national origin (Ghana) and in reprisal for prior protected EEO activity arising under Title VII of the Civil Rights Act of 1964 when: (1) in October 2003, he was involuntarily reassigned to the SPBS unit; and (2) he was denied higher-level pay for higher-level work. On November 22, 2004, Complainant filed a second EEO complaint (Agency No. 4J-606-0247-04) alleging that he was discriminated against on the basis of national origin when, in August 2004, he was notified that the vacancy announcement for an MDO, EAS-24, position at the Irving Park Road P&DC was being reposted in order to attract a larger pool of qualified candidates. The Agency dismissed Complainant's complaint for failure to state a claim, but in EEOC Appeal No. 01A51572 (March 23, 2005), the Commission reversed the dismissal and remanded the complaint for further processing, finding that Complainant had alleged that the vacancy announcement was reposted in order to avoid selecting him for discriminatory reasons. At the conclusion of the investigations, the Agency provided Complainant with copies of the reports of investigation and notice of his right to request a hearing before an AJ. Complainant timely requested a hearing, and further requested that the complaints be consolidated. The AJ assigned to the case (AJ1) consolidated the complaints at the hearing stage. After a two-day hearing, AJ1 issued a bench decision on September 13, 2005, finding no discrimination.1 On October 4, 2005, the Agency issued a final order adopting AJ1's decision. Complainant appealed the Agency's decision. On appeal, the Commission reversed the Agency's final order with respect to claims 1 and 2, finding that Complainant established that he was subjected to unlawful national origin discrimination and reprisal when he was involuntarily reassigned and denied higher-level pay. The decision found that the Agency had failed to articulate any legitimate, nondiscriminatory reason for reassigning Complainant, and that Complainant had shown that the Agency's reasons for denying him the higher-level pay were pretext for discrimination. EEOC Appeal No. 0120060802 (Nov. 20, 2007). With respect to the claim in Complainant's second complaint, the Commission affirmed the finding of no discrimination, finding that Complainant had not established that the vacancy announcement had been canceled, and that he was not selected for the MDO, EAS-24, position, for discriminatory reasons. Id. The Commission ordered the Agency to reinstate Complainant to his former position of MDO in the Automation area, or to another substantially equivalent and mutually agreeable position; provide back pay at the EAS-24 level for the time he performed duties as an MDO in the SPBS unit; forward the matter to the Hearings Unit for the assignment of an AJ to render a determination on the issue of compensatory damages and attorney's fees; provide EEO training to all responsible management officials; consider disciplinary action against the responsible management officials; and post a notice of the finding of discrimination. Complainant filed a request for reconsideration with the Commission, arguing that the Commission erred in finding no discrimination as to the non-selection claim, but the request was denied. EEOC Request No. 0520080211 (May 30, 2008). On February 15, 2008, while Complainant's request for reconsideration was pending, Complainant filed a Petition for Clarification or Enforcement with the Compliance Officer in the Commission's Office of Federal Operations (OFO). In his Petition, Complainant stated that he and the Agency disagreed over the amount of back pay he was owed based on the length of time he was assigned as the MDO of the SPBS unit. According to Complainant, he was assigned to the SPBS unit in October 2003. He was given responsibility for the Manual Letters area in September 2004, but stated that he was still responsible for the SPBS unit three times per week. In December 2005, he was moved back to the SPBS unit on a full-time basis and remained there until March 2007, when he was reassigned to In-Plant Support. He claimed that his back pay should include the time between October 2003 and March 2007. After the denial of Complainant's request for reconsideration in EEOC Request No. 0520080211, and while the hearing on compensatory damages was pending, Complainant resubmitted his Petition for Clarification or Enforcement to OFO on January 8, 2009, noting that his contentions had not yet been addressed. On January 14, 2009, the Agency resubmitted its March 3, 2008, response to Complainant's Petition for Clarification or Enforcement to OFO, in which it argued that Complainant had received the appropriate amount of back pay for the period of September 27, 2003, through September 3, 2004. It disputed that Complainant was entitled to higher-level pay for the non-consecutive days he was responsible for the SPBS unit between September 2004 and December 2005, based on Agency regulations regarding higher-level pay. It also noted that his assignment to the SPBS unit in December 2005 was given to him by a different management official than the responsible management official in EEOC Appeal No. 0120060802, and that it was not a "higher level assignment." The Agency further stated that the December 10, 2005, assignment to the SPBS unit and Complainant's entitlement to higher-level pay for that assignment was the subject of a different EEO complaint (consolidated Agency Nos. 1J-607-0061-05 and 1J-607-0025-06), which had been before an EEOC AJ (AJ2) in EEOC Hearing No. 440-2006-00026X. A five-day hearing was held. On February 20, 2007, AJ22 issued a decision in which he found that Complainant had not established that he had been discriminated against; Complainant did not appeal the final Agency action to the Office of Federal Operations. The Agency therefore argued that Complainant was not entitled to back pay for the period of September 2004 through March 2007, as Complainant claimed. In compliance with the Order in EEOC Appeal No. 0120060802, the Agency submitted a declaration that Complainant had been reassigned to the Automation unit on October 14, 2007. On remand, the case was first assigned to AJ1. He dismissed the hearing request on April 15, 2008, due to the pending request for reconsideration. In his Order on April 15, 2008, regarding discovery he wrote: Given the nature and posture of the case, and notwithstanding any contrary provisions of the new Acknowledgment and Order or Supplemental Acknowledgment and Order to be issued in the reinstated case, the parties shall not commence or otherwise engage in formal discovery unless the parties request and obtain authorization from the Administrative Judge. Written requests will state, with specificity, the proposed scope of the discovery, its relevance to the issues being decided, and the proposed discovery methods to be employed. See EEO MD-110, p. 7-19. Requests to commence discovery must be filed within 10 calendar days of receipt of the new Acknowledgment & Order to be issued in the reinstated case. Failure of a party to timely request authorization to commence discovery will constitute waiver of the right to pursue formal discovery in the reinstated ease. The case was then transferred toAJ2, (in a different EEOC Field Office Hearings Unit), who was assigned to hold the hearing on Complainant's claim for compensatory damages and attorney's fees. He held the matter in abeyance while the parties waited for a ruling on the disputed back pay issue. AJ2 entertained various motions from the parties, and also issued rulings on several matters. In the July 31, 2008, Order setting the date for the status hearing, AJ2 wrote, "Additional discovery will not be permitted in this case unless [AJ1] had prohibited discovery on the issue of damages prior to the initial hearing." In his August 18, 2008 Order, AJ2 approved Complainant's list of proposed witnesses, with the exception of the Executive Director of a YMCA in Chicago where Complainant had performed work as a consultant. Complainant resigned from his second job at the YMCA in early 2004 due to the stress he experienced after the discriminatory reassignment in October 2003. He offered the testimony of the YMCA Director in order to establish his emotional state following the discrimination and to show injury to his professional standing and his consulting business. AJ1 had approved the YMCA Director as a witness in the originally scheduled bifurcated damages hearing, which was not held. Complainant submitted a motion to reconsider the ruling excluding the YMCA Director to AJ2 on August 22, 2008. The Agency objected, and argued that because the claim of lost income from the YMCA job had not been part of the original discovery, Complainant should not be allowed to make a claim for it at the remanded damages hearing. It claimed it would be unduly prejudiced if the YMCA Director were allowed as a witness. In Complainant's October 31, 2008 reply, Complainant noted that the Agency's reply brief was "the first time since the case was remanded that Respondent indicated a lack of opportunity to conduct follow up discovery on that issue. In addition, Respondent has also not moved to reopen discovery for this limited purpose." By Orders of December 18, 2008, and October 19, 2009, AJ2 did not allow Complainant to submit testimony and evidence on lost compensation from his outside employment as a consultant with the YMCA. AJ2 found that Complainant failed to detail his pecuniary loss in connection with the YMCA job in the original discovery period in early 2005. AJ2 also ruled that Complainant would be allowed to present evidence on his entitlement to damages from the loss of promotional opportunities within the Agency. AJ2 held a hearing on December 15, 2009, on the issue of remedies. Complainant argued at the hearing that he was entitled to $248,500 in damages: $120,000 in alleged lost promotional opportunities; $120,000 for pain and suffering; and $8,500 in additional back pay. The Agency argued that Complainant had already been fully compensated for lost back pay in accordance with the Commission's Order, and as detailed in its response to Complainant's Petition for Clarification or Enforcement. The Agency also argued that Complainant failed to establish that he had lost promotional opportunities, and that he was entitled to no more than $20,000 for pain and suffering. On December 17, 2009, AJ2 issued a bench decision. AJ2, in the absence of clarification from OFO, ruled that the relevant period of back pay should run from October 2003 through September 2004. He found that the Agency had fully compensated Complainant for the back pay owed to him, covering the period of October 2003 through September 2004. AJ2 further found that Complainant failed to establish his entitlement to compensation for the loss of promotional opportunities. Complainant had argued that because he could not represent himself as having served as an EAS-24 in the SPBS unit, he lost out on higher-level positions for which he had applied. AJ2 found that Complainant had not supported his theory with sufficient evidence. With respect to non-pecuniary damages, AJ2 found that Complainant was entitled to "damages for the harm directly caused by the October 2003 reassignment, and for the harm proximately caused by the reassignment." AJ2 found that the period of harm was longer than that which was relevant to the back pay award. He awarded $210,000 in compensatory damages, citing the negative impact the reassignment had on Complainant's psychological and physical well-being during the four-year period he was reassigned out of the Automation unit. AJ2 factored into his calculation the fact that it took four years for Complainant to be returned to Automation, during which time Complainant was transferred to other management positions, which AJ2 found was the result of the original transfer out of Automation. He reasoned that, if Complainant had still been assigned to Automation in December 2005, he would not have been without a unit to manage when the Agency consolidated operations and Complainant was again assigned to the SPBS unit in December 2005. AJ2 determined that Complainant was entitled to compensatory damages in the amounts of $70,000 for the period of 2003-2004; $35,000 for 2004-2005; $70,000 for 2005-2006; and $35,000 for 2006-2007, for a total of $210,000 in non-pecuniary compensatory damages. Complainant was given an opportunity to submit a petition for attorney's fees after the hearing. On March 15, 2010, AJ2 issued an order entering his decision to award Complainant $210,000 in non-pecuniary compensatory damages and $29,705 in attorney's fees. On April 28, 2010, the Agency issued a final order rejecting AJ2's decision and concurrently filed an appeal with the Commission. CONTENTIONS ON APPEAL On appeal, the Agency objects to AJ2's decision to award Complainant $210,000 in non-pecuniary compensatory damages. Specifically, the Agency argues that AJ2 failed to consider that "non-compensable emotional pain and suffering from other non-discriminatory factors" may have contributed to the emotional harm Complainant suffered after his reassignment in October 2003, including pre-existing medical conditions, such as a "preexisting social phobia;" issues stemming from prior interactions with LW; work-related actions after 2004 that "were not found to be the result of illegal discrimination;" and emotional harm Complainant may have suffered from participating in the EEO process. The Agency further argues that the $210,000 award is not supported by substantial evidence because Complainant suffered only "mild to moderate emotional harm." The Agency noted that Complainant asked for $120,000 in non-pecuniary compensatory damages at hearing. The Agency argues that AJ2's award is inconsistent with non-pecuniary damage awards in similar cases, and that a proper award would be in the range of $10,000 to $20,000. The Agency notes that AJ2 disallowed evidence of a pecuniary damage claim in relation to lost income from Complainant's second job at the YMCA. However, it argues that AJ2 then allowed testimony as to what impact giving up the YMCA job had on Complainant's mental state. It argues that AJ2 took "stunningly inconsistent positions" with regard to the YMCA issue, and showed alleged bias against the Agency during the hearing. Finally, the Agency argues that the non-pecuniary damage award is "monstrously excessive and the product of passion and prejudice." In response, through his representative, Complainant urges the Commission to affirm AJ2's $210,000 non-pecuniary compensatory damages award. Complainant argues that AJ2's findings are supported by substantial evidence because AJ2 "properly considered the nature, extent, severity and duration of the harm that [Complainant] sustained as a result of the Agency's discriminatory treatment." Complainant argues that any social phobia with which he may have been afflicted prior to his October 2003 reassignment was unrelated to the emotional symptoms and depression that he suffered due to the reassignment and, regardless, AJ2 considered only damages proximately caused by the reassignment when calculating damages. Complainant further argues that AJ2 "did not base his damages award on the stress and effects of the EEOC hearings that occurred in 2005." With respect to the size of the award, Complainant argues that AJ2 properly considered Complainant's emotional state when calculating the award while also recognizing that the negative effects of the discrimination lasted for several years after the initial reassignment. He also argues that AJ2 properly recognized the amount of emotional distress Complainant experienced by giving up his YMCA job, and losing almost 40percent of his income, and notes that Complainant had introduced documents which demonstrated the amount of his YMCA income during the pre-hearing period for the liability hearing in 2005, without objection from the Agency. Finally, Complainant argues that the $210,000 damages award was neither monstrously excessive nor the result of passion or prejudice. ANALYSIS AND FINDINGS As an initial matter, the Commission notes that neither the Agency nor Complainant is appealing AJ2's decision to deny Complainant additional back pay or damages for Complainant's alleged loss of promotional opportunities. The parties are also not contesting the $29,705 attorney's fees award. 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. Pursuant to section 102(a) of the Civil Rights Act of 1991, a complainant who establishes his or her claim of unlawful discrimination may receive, in addition to equitable remedies, 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). 42 U.S.C. § 1981a(b)(3). For an employer with more than 500 employees, such as the Agency, the limit of liability for pecuniary and non-pecuniary damages is $300,000. Id. The particulars of what relief may be awarded, and what proof is necessary to obtain that relief, are set forth in detail in EEOC Enforcement Guidance: Compensatory and Punitive Damages Available under § 102 of the Civil Rights Act of 1991, No. N 915-002 (July 14, 1992). 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 id. 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). Additionally, complainant must submit evidence to show that the agency's discriminatory conduct directly or proximately caused the losses for which damages are sought. See Rivera v. Dep't of the Navy, EEOC Appeal No. 01934157 (July 22, 1994). Non-pecuniary damages In Carle v. Department of the Navy, the Commission explained that "objective evidence" of non-pecuniary damages could include a statement by Complainant explaining how he or she was affected by the discrimination. EEOC Appeal No. 01922369 (Jan. 5, 1993). Objective evidence may include statements from the complainant concerning the 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. Sinnott v. Dep't of Defense, EEOC Appeal No. 01952872 (Sept. 19, 1996). Statements from others, including family members, friends, and health care providers 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. Objective evidence also may include documents indicating a complainant's actual out-of-pocket expenses related to medical treatment, counseling and so forth, related to the injury allegedly caused by discrimination. Id. Evidence from a healthcare provider or other expert is not a mandatory prerequisite for recovery of compensatory damages for emotional harm. Lawrence v. U.S. Postal Serv., EEOC Appeal No. 01952288 (Apr. 18, 1996). The more inherently degrading or humiliating the agency's actions are the more reasonable it is to infer that a person would suffer humiliation or distress from that action. Id. Consequently, somewhat more conclusory evidence of emotional distress will be acceptable to support an award for emotional damages. Id. The Commission notes that, because there is no precise formula by which to calculate non-pecuniary damages, an AJ is afforded broad discretion in determining such damages awards. However, non-pecuniary compensatory damages are designed to remedy the harm caused by the discriminatory event rather than punish the Agency for the discriminatory action. Further, 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) (citing Cygnar v. City of Chicago, 865 F.2d 847, 848 (7th Cir. 1989)). Upon review, we concur with AJ2 that Complainant has provided substantial evidence that the Agency's discriminatory conduct caused him to suffer physical and emotional harm. Complainant testified at the hearing that he felt the discriminatory reassignment from the Automation unit to the SPBS unit would hurt his career because the Automation unit was a more prestigious area, and the SPBS unit was being phased out by the Agency. See Hearing Transcript (HT) at 140-41. He stated that he worked hard to obtain promotions throughout his career, and he believed LW transferred him to the SPBS unit to "have a reason to get rid of me." Id. at 142. Complainant testified that the October 2003 reassignment caused him to suffer from anxiety attacks, a desire to withdraw from personal interaction with others, sweating, chills, difficulty sleeping, fatigue, loss of appetite, and weight loss. Id. at 142-48. He further testified that the reassignment caused him to suffer from depression and an elevated heart-rate, and, after seeking medical attention from a physician and a therapist/counselor in 2005, he was prescribed antidepressants and high blood pressure medication to help him deal with the symptoms caused by his emotional distress. Id. at 145-46, 153-54. Complainant testified that he continued to suffer from some of these symptoms and take medication to treat his condition(s) as of the date of the hearing in December 2009. Id. at 158. Two former employees confirmed at the hearing that Complainant's demeanor changed after the reassignment to the SPBS unit. One employee stated that Complainant was happy and communicated well with other employees when he was in the Automation unit, but he appeared unhappy after the reassignment. Id. at 70. The other employee stated that Complainant was an energetic employee in the Automation unit, but he appeared "distressed" after the reassignment. Id. at 95-98. She stated that Complainant had informed her that he feared termination, and he complained about having difficulty sleeping and eating. Id. She also testified that Complainant complained of feeling dizzy, having headaches, and losing weight during the relevant time period. Id. In determining the amount of non-pecuniary compensatory damages warranted by an agency's discriminatory actions, the Commission seeks to make the award consistent with awards in similar cases. The Commission also applies the principle that "a tortfeasor takes its victims as it finds them." Wallis v. U.S. Postal Serv., EEOC Appeal No. 01950510 (Nov. 13, 1995) (quoting Williamson v. Handy Button Mach. Co., 817 F.2d 1290, 1294 (7th Cir. 1987)). The Commission 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. See Wallis, EEOC Appeal No. 01950510. Second, if the complainant's pre-existing 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. Id. Here, AJ2 considered the evidence and awarded Complainant $210,000 in non-pecuniary compensatory damages. However, the AJ did not explain in any detail how he arrived at the amounts awarded to Complainant for each time period. The AJ specified in his bench decision that Complainant was entitled to compensatory damages in the amounts of $70,000 for the period of 2003-2004; $35,000 for 2004-2005; $70,000 for 2005-2006; and $35,000 for 2006-2007. AJ2 did not explain the reasoning for dividing the compensable period into these time-frames, nor did he support his determinations of the amounts awarded with citations to the specific evidence he felt warranted those awards. The record shows that Complainant had filed two subsequent EEO complaints for events that occurred in the 2005 and 2006 timeframe. These EEO complaints were the subject of a separate hearing also before AJ2, who found that Complainant had not established that he had been discriminated against. The Agency argued that the $70,000 awarded by AJ2 for harm suffered in 2005-2006 was in error because the worsening of Complainant's emotional state during that time frame was more attributable to the events which had been found not to be discriminatory than to his October 2003 assignment to the SBPS unit. The Agency also argued that Complainant attributed emotional distress he experienced in 2005 to the stress of his August 2005 EEO hearing, for which he cannot recover damages. The Agency further argued that Complainant had not established a link between the emotional distress he experienced in 2007 and the discriminatory reassignment in 2003, and that AJ2's award of $35,000 for distress in 2006-2007 was therefore unsupported by the record. AJ2 cited Complainant's distress at having to give up his outside consulting employment with the YMCA in February 2004 when calculating the amount of non-pecuniary damages. The Agency argued that AJ2 had issued pre-hearing rulings which disallowed testimony and evidence regarding Complainant's loss of income from the YMCA work, but then contradicted those rulings by allowing testimony about the emotional impact of having to give up the consulting work. It argued that this unfairly prejudiced the Agency in defending its case. Finally, the Agency claimed that AJ2 awarded damages connected to the loss of the YMCA job based on his own assumptions. It cited AJ2's statement at hearing, "I mean, I think we all can relate if we all lost 40 percent of our income, how that would disrupt our personal lives. So that's why I allowed the testimony." HT p. 263. It argued that AJ2 substituted his own feelings for evidence presented by Complainant as to how the loss of the second job affected his emotional well-being. We find AJ2's determination, that if Complainant had not been removed from the Automation unit in 2003, he would have likely remained there for the four years that he instead was transferred to other management positions, to be speculative and not supported by the record. The Agency argued in its brief that some of Complainant's emotional harm may have been attributable to other "work-related actions" in the intervening time period. It proffered that Complainant's reassignment to the SPBS unit in 2005, and his assignment to lesser supervisory-duties in January 2006, were each the subject of separate EEO complaints. Complainant did not prevail on those EEO complaints, nor is there a record of his having appealed the adverse findings to the Commission. Complainant was assigned back to Automation in September 2007, which is two months before the Commission issued its finding of discrimination in EEOC Appeal No. 0120060802 (Nov. 20, 2007), which is the basis for the award of compensatory damages at issue in this appeal. Upon review, the Commission finds that AJ2's award of $210,000 is not supported by substantial evidence in the record, and that a non-pecuniary compensatory damages award of $120,000 is more appropriate in this case. At the hearing, Complainant argued that he was entitled to $120,000 in emotional pain and suffering. This amount takes into account the severity and duration of the harm sustained by Complainant by the Agency's discriminatory actions as well as the fact that, despite Complainant's pre-existing condition, the Agency's discriminatory actions were the proximate cause of the majority of his emotional and physical harm during the relevant period of time. We also find that Complainant supported his claim for this specific amount through the evidence and testimony introduced at the hearing on damages. The award is not "monstrously excessive" standing alone, the product of passion or prejudice, or inconsistent with amounts the Commission has awarded in other cases where the discrimination caused depression and other adverse psychological and physical conditions. See Champion v. U.S. Postal Service, EEOC Appeal No. 0720090037 (March 10, 2010) ($125,000 awarded in non-pecuniary damages where complainant suffered depression, anxiety, sleeplessness and required psychiatric treatment as a result of ongoing harassment for two years); Dunn v. Dep't of the Air Force, EEOC Appeal No. 0720110021 (Feb. 10, 2012) ($125,000 awarded in non-pecuniary compensatory damages where complainant suffered depression, anxiety, humiliation, severe emotional distress, physical pain, and sleeplessness); Auston v. Dep't of Veterans Affairs, EEOC Appeal No. 0120112574 (July 19, 2012) ($100,000 awarded in non-pecuniary damages where Complainant suffered anxiety, depression, lost appetite/weight, constant vomiting, ulcers, worsened insomnia, irritability, and repeated asthma attacks over a period of several years as a result of the Agency's failure to accommodate). Therefore, we find that Complainant should be awarded the amount of non-pecuniary damages that he requested and supported with evidence and testimony, namely, $120,000. Pecuniary damages When Complainant filed his complaint, he requested remedies such that he would be made whole if it were found that he had been subjected to discrimination. At the time Complainant filed his complaint, he was acting pro se. Complainant claimed to have suffered economic loss in the form of lost income from a second job where he provided consulting services to a Chicago-area YMCA. In February 2004, Complainant resigned from this second job due to the stress he suffered by being transferred to the SPBS unit. Discovery was conducted in accordance with AJ1's Order issued on December 20, 2004. Discovery closed on February 14, 2005. In Complainant's January 12, 2005, response to the Agency's interrogatories, he did not cite the lost income from the second job at the YMCA, nor did he submit documents in support of his losses. However, in his pre-hearing submission to AJ1, he did list the YMCA Director as a witness who would testify about his character and the mental stress he suffered, as well as his reduced hours of consulting work. In an addendum to his exhibits, submitted on August 19, 2005, he asked for the first time for lost income from the YMCA job, and submitted his 1099 tax forms issued by the YMCA for the years 2001-2004 as evidence of the amount of his losses. Before the August 24-25, 2005 hearing on liability, Complainant and the Agency submitted their lists of proposed witnesses to AJ1. Complainant requested that the Executive Director of the YMCA of Metropolitan Chicago be approved to testify on his lost income from the consulting services. The Agency objected to the YMCA witness on the grounds that Complainant had not disclosed information about those damages during discovery. AJ1, however, approved the YMCA witness without limiting the scope of her testimony. AJ1 decided to bifurcate the hearing, and not to take testimony on damages at the time of the hearing on liability. When AJ1 found that Complainant had not been discriminated against, the hearing on damages was never held. No testimony from the YMCA Director was entered into the record, although Complainant did testify as to his reduced hours of consulting work. Subsequently, after the appeal decision was issued in EEOC Appeal No. 0120060802 and a finding of discrimination was entered in Complainant's favor, the case was remanded for a hearing on damages, and assigned to AJ1. The case was transferred to a different Hearings Unit, and AJ2 held the damages hearing (as well as the hearings on Complainant's later-filed EEO complaints). Complainant was represented by counsel in the damages phase of his complaint processing. The Agency renewed its objection to the witness testimony regarding evidence of lost income from the YMCA job, again on the ground that Complainant failed to disclose information about this claim during discovery and that it would be unduly prejudiced if the testimony was allowed, as it had not had the opportunity to explore the damage claim in the discovery phase. Complainant argued that the Agency could have made a motion to reopen discovery in order to obtain the information. Complainant also argued that, because the witness had been approved by AJ1, but AJ1 then chose to bifurcate the hearing, the witness should be allowed to testify at the damages hearing before AJ2. On December 18, 2008, AJ2 issued an order excluding the YMCA Director's testimony regarding Complainant's lost income from the YMCA job on the ground that Complainant "failed to detail his pecuniary loss connected to his second job at a YMCA in response to its [the Agency's] discovery requests" during the discovery that preceded the hearing on liability in 2005. AJ2 noted that the fact that AJ1 had approved the witness did not mean that the Agency had waived its right to object to her testimony. We find that it was error for AJ2 to have disallowed the testimony and evidence regarding Complainant's lost income from the YMCA job. Complainant has consistently requested make-whole relief. Although he originally did not list the YMCA income as part of his loses during the initial discovery phase of the hearing in 2005, he amended his filings before the hearing on liability was held in August 2005. The Agency was put on notice as early as August 2005 that Complainant was requesting the lost income as a component of his damages. When the complaint was remanded for a hearing on damages following EEOC Appeal No. 0120060802, the Agency had notice that Complainant had claimed pecuniary damages in the form of the lost YMCA income. It did not request a reopening of discovery at that time in order to explore Complainant's claim. The hearing process is intended to be an extension of the investigative process, designed to "ensure that the parties have a fair and reasonable opportunity to explain and supplement the record and to examine and cross-examine witnesses." See EEOC Management Directive (MD) 110, November 9, 1999, Chapter 6, page 6-1; see also 29 C.F.R. § 1614.109(d) and (e). Here, however, AJ2's ruling effectively deprived Complainant of his opportunity to obtain make-whole relief. AJ2 found that Complainant had not established the relevance of the YMCA Director's testimony to his damages. We find that he did. Complainant offered sufficient supporting reasons as to why this witness was relevant, noting that she would testify as to the injury to his professional standing and his consulting business. Additionally, she could have given testimony about the number of hours Complainant worked providing his services, and the prospective amount he would have worked had he not resigned in February 2004. He supplied his 1099 tax forms for the years of 2001-2004 in support of his claim. Therefore, it was an error to exclude the testimony of the YMCA Director. After the hearing on damages, AJ2 was always free to discount the testimony if he found that it was not on point. Therefore, in order to determine the amount of Complainant's pecuniary losses from the lost income from the YMCA job, we remand the case to the Hearings Unit for the assignment of an AJ to take evidence and testimony on this point. Complainant should be allowed to present the testimony of the YMCA Director, on the topics he proffered for the original 2005 hearing, as well as any other evidence and testimony which would go toward establishing the amount of pecuniary losses he can prove was connected to the discrimination. CONCLUSION Accordingly, after a careful review of the record, including arguments and evidence not specifically discussed in this decision, the Agency's decision is REVERSED. The Agency is directed to comply with the AJ's order as MODIFIED and set forth herein. ORDER The Agency is ordered to take the following remedial actions: (1) Within sixty (60) calendar days from the date this decision becomes final, the Agency shall pay Complainant $120,000 in non-pecuniary compensatory damages. (2) To the extent it has not already done so, within sixty (60) calendar days from the date this decision becomes final, the Agency shall tender to Complainant's attorney $29,705 in attorney's fees. (3) Within thirty (30) calendar days from the date this decision becomes final, the Agency shall refer the matter to the Chicago District Office Hearings Unit for the assignment of an AJ to hold a hearing on Complainant's entitlement to pecuniary damages in connection with his lost income from the YMCA position. The AJ shall issue a decision in accordance with 29 C.F.R. § 1614.109, and the Agency shall issue a final action in accordance with 29 C.F.R. § 1614.110. (4) The Agency is 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 (H0610) 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 this decision becoming final. 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 (K0610) 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 submitted to the Compliance Officer, Office of Federal Operations, Equal Employment Opportunity Commission, P.O. Box 77960, Washington, DC 20013. 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 (M0610) 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 or within twenty (20) calendar days of receipt of another party's timely request for reconsideration. See 29 C.F.R. § 1614.405; Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at 9-18 (November 9, 1999). All requests and arguments must be submitted to the Director, Office of Federal Operations, Equal Employment Opportunity Commission, P.O. Box 77960, Washington, DC 20013. 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 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 (Z0610) If you decide to file a civil action, and if you do not have or cannot afford the services of an attorney, you may request from the Court that the Court appoint an attorney to represent you and that the Court also permit you to file the action without payment of fees, costs, or other security. See Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq.; the Rehabilitation Act of 1973, as amended, 29 U.S.C. §§ 791, 794(c). The grant or denial of the request is within the sole discretion of the Court. Filing a request for an attorney with the Court does not extend your time in which to file a civil action. Both the request and the civil action must be filed within the time limits as stated in the paragraph above ("Right to File a Civil Action"). FOR THE COMMISSION: ______________________________ Carlton M. Hadden, Director Office of Federal Operations May 13, 2014 Date 1 AJ1 opted to bifurcate the hearing and did not accept any evidence on damages at that time. 2 The same AJ, AJ2, was assigned to Hearing Request No. 440-2006-00026X as was assigned to Complainant's compensatory damages hearing in Hearing Request No. 440-2009-00066X. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ 2 0720100036 U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 2 0720100036