Doria R.,1 Complainant,v.France A. Cordova, Director, National Science Foundation, Agency.

Equal Employment Opportunity Commission

Sep 4, 2019

0120181782 (E.E.O.C. Sep. 4, 2019)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013

Doria R.,1
Complainant,

v.

France A. Cordova,
Director,
National Science Foundation,
Agency.

Appeal No. 0120181782

Agency No. NSFEO10002

DECISION

On April 20, 2018, Complainant’s Estate 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 March 20, 2018, final decision concerning her equal employment opportunity (EEO)
complaint alleging employment discrimination in violation of Title VII of the Civil Rights Act of
1964 (Title VII), as amended, 42 U.S.C. § 2000e et seq., Section 501 of the Rehabilitation Act of
1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq., and the Age Discrimination in
Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq. For the following
reasons, the Commission AFFIRMS the Agency’s final decision regarding Complainant’s
entitlement to compensatory damages.2

ISSUE PRESENTED

Whether Complainant’s Estate provided a justification for modifying the Agency’s non-
pecuniary compensatory damage award of $15,000.00 on appeal.

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 March 6, 2018, filed an appeal concerning the Agency’s final decision
concerning attorney’s fees, which was docketed as EEOC Appeal No. 0120181319, and is still
pending.
0120181782

2
BACKGROUND

On November 9, 2017, the Commission issued a decision in EEOC Appeal No. 0120152916,
modifying the Agency’s final decision by finding that the Agency had discriminated against
Complainant on the bases of disability (breast cancer and spine injury) when it unreasonably
denied her request to telework on February 25, 2010, and, had unreasonably delayed responding
to her request for additional telework days and therefore failed to adequately accommodate her.
The Commission also determined, however, that Complainant had not established that she was
subjected to a hostile work environment. The Agency was ordered, among other things, to
investigate Complainant’s entitlement to an award of compensatory damages and to issue a final
decision on that issue.

The Agency contacted Complainant’s attorney of record on December 14, 2017, requesting
evidence that the Estate wanted to offer for her entitlement to compensatory damages.
Complainant’s attorney requested an extension until January 5, 2018, to respond. The request
was granted, but the requested documentation was never provided. Complainant’s attorney was
contacted again on January 11, 2018; however, the Agency was informed that the documentation
might be available on February 26, 2018. On March 5, 2018, after not receiving any
documentation regarding compensatory damages from the Estate, the Agency began the process
of issuing a final decision regarding compensatory damages.

Among other things, the Agency found that while Complainant’s Estate did not provide any
evidence regarding her claim for compensatory damages, the Agency assumed that Complainant
experienced frustration, and unnecessary stress and anxiety after she was denied telework. The
Agency used testimony from the record and found that Complainant had indicated that
commuting to work was painful and stressful given that her cancer had returned and that she
suffered spinal fractures. The Agency noted that Complainant provided no evidence regarding
the effects that the discrimination had on her relationships with family and friends. Therefore, the
Agency indicated that, based on the facts and the Commission’s prior decisions, an award of
$15,000.00 in non-pecuniary compensatory damages would be appropriate. The Agency did not
award pecuniary damages because there was no proof of such damages.
CONTENTIONS ON APPEAL

Complainant’s attorney did not submit a brief on appeal.

The Agency also did not submit a statement or brief on appeal.

ANALYSIS AND FINDINGS

As this is an appeal from a decision issued without a hearing, pursuant to 29 C.F.R.
§ 1614.110(b), the Agency's decision is subject to de novo review by the Commission. 29 C.F.R.
§ 1614.405(a).

0120181782

3
See Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614, at Chapter
9, § VI.A. (Aug. 5, 2015) (explaining that the de novo standard of review “requires that the
Commission examine the record without regard to the factual and legal determinations of the
previous decision maker,” and that EEOC “review the documents, statements, and testimony of
record, including any timely and relevant submissions of the parties, and . . . issue its decision
based on the Commission’s own assessment of the record and its interpretation of the law”).

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 this agency, the limit of liability for future
pecuniary and non-pecuniary damages is $300,000.00. Id. In West v. Gibson, 527 U.S. 212
(1999), the Supreme Court held that the Commission has the authority to award compensatory
damages in the federal sector EEO process.

The particulars of what relief may be awarded, and what proof is necessary to obtain that relief,
are set forth in detail in EEOC’s Enforcement Guidance, Compensatory and Punitive Damages
Available Under Section 102 of the Civil Rights Act of 1991 (July 14, 1992) (Guidance). Briefly
stated, Complainant must submit evidence to show that the Agency’s discriminatory conduct
directly or proximately caused the losses for which damages are sought. Id. at 11-12, 14; Rivera
v. Dep’t. of the Navy, EEOC Appeal No. 01934157 (July 22, 1994). Emotional harm will not be
presumed simply because a complainant is a victim of discrimination. Guidance at 5. The
amount awarded should reflect the extent to which the Agency’s discriminatory action directly or
proximately caused harm to Complainant and the extent to which other factors may have played
a part. Guidance at 11-12. The amount of non-pecuniary damages should also reflect the nature
and severity of the harm to Complainant, and the duration or expected duration of the harm. Id.
at 14.

In Carle v. Dep’t. of the Navy, the Commission explained that objective evidence of non-
pecuniary damages could include a statement by the complainant explaining how he or she was
affected by the discrimination. EEOC Appeal No. 01922369 (January 5, 1993). Statements from
others, including family members, friends, and health care providers could address the outward
manifestations of the impact of the discrimination on the complainant. Id. The complainant
could also submit documentation of medical or psychiatric treatment related to the effects of the
discrimination. Id. However, evidence from a health care provider is not a mandatory
prerequisite to establishing entitlement to nonpecuniary damages. Sinnott v. Dep’t of Defense,
EEOC Appeal No. 01952872 (September 19, 1996).

After careful consideration of the record, we find that Complainant’s Estate has not established
that the Agency’s award of $15,000.00 for nonpecuniary, compensatory damages was not
appropriate. Complainant’s Estate did not provide evidence to the Agency, nor argument to the
Commission on appeal, that a higher amount was more appropriate.
0120181782

4
We find that this amount takes into consideration the severity of the harm suffered, and the
length of time Complainant suffered the harm. We further find that it is consistent with prior
Commission precedent as set forth in the Agency’s final decision. Accordingly, we conclude that
an award of $15,000 will adequately compensate Complainant’s Estate for the harm she suffered
as a result of the Agency’s discriminatory actions.

CONCLUSION

Based on a thorough review of the record, we AFFIRM, the Agency’s final decision regarding
nonpecuniary compensatory damages because we find that Complainant’s Estate has not
demonstrated that she suffered damages in excess of the amount provided by the Agency.

ORDER

To the extent it has not already done so, the Agency, within 120 days of this decision, shall take
the following actions:

Pay Complainant’s Estate $15,000 in nonpecuniary, compensatory damages.

The Agency is further directed to submit a report of compliance in digital format as provided in
the statement entitled "Implementation of the Commission's Decision." The report shall be
submitted via the Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). Further,
the report must include supporting documentation of the Agency's calculation of back pay and
other benefits due Complainant, including evidence that the corrective action has been
implemented.
IMPLEMENTATION OF THE COMMISSION’S DECISION (K0719)
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).
0120181782

5
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.
Failure by an agency to either file a compliance report or implement any of the orders set forth in
this decision, without good cause shown, may result in the referral of this matter to the Office of
Special Counsel pursuant to 29 CFR § 1614.503(f) for enforcement by that agency.
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).
0120181782

6
COMPLAINANT’S RIGHT TO FILE A CIVIL ACTION (S0610)
You have the right to file a civil action in an appropriate United States District Court within
ninety (90) calendar days from the date that you receive this decision. 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. If you
file a request to reconsider and also file a civil action, 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

September 4, 2019
Date