[Redacted],v.Kilolo Kijakazi, Acting Commissioner, Social Security Administration, Agency.

Equal Employment Opportunity Commission

May 11, 2022

Appeal No. 2021002547 (E.E.O.C. May. 11, 2022)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 1, Don F.,2 Complainant, v. Kilolo Kijakazi, Acting Commissioner, Social Security Administration, Agency. Appeal No. 2021002547 Agency No. ATL-18-0556-SSA DECISION On March 18, 2021, Complainant’s estate filed an appeal, pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s final decision concerning his equal employment opportunity (EEO) complaint alleging employment discrimination in violation of Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq. For the following reasons, the Commission AFFIRMS the Agency's final order. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as an Administrative Law Judge (ALJ) at the Agency’s Office of Hearing Operations (OHO) in North Charleston, South Carolina. On July 9, 2018, Complainant filed an EEO complaint alleging that the Agency discriminated against him on the bases of sex (male), disability (stage four lung cancer), and age (DOB: 1951) when the Agency unreasonably delayed issuing a decision on and failed to provide Complainant with a reasonable accommodation regarding his requests for telework and flexible scheduling; the Agency subjected Complainant to harassment with respect to processing his reasonable accommodation, providing an accommodation, time and attendance, and other 1 Complainant passed away on October 25, 2018 during the processing of this complaint. 2 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. 2021002547 2 working conditions; and management denied his request for union representation. The complaint was investigated, and the Agency issued a decision finding no discrimination. Complainant’s estate appealed the Agency's final decision to the Commission. The Commission reversed, finding that the Agency failed to reasonably accommodate Complainant. Accordingly, the Commission ordered relief that included: 1) restoration of leave used due to the Agency’s failure to provide Complainant with an effective reasonable accommodation and payment of equivalent compensation based upon the restored leave balance; 2) a supplemental investigation on compensatory damages; 3) eight hours of training to the responsible management officials, the Chief ALJ and the members of the Regional Office; and 4) consideration of disciplinary action against the responsible management officials. Don F. v. Soc. Sec. Admin. EEOC Appeal No. 2019002029 (Sept. 22, 2020). On February 16, 20213, the Agency issued its decision on compensatory damages. In determining how much non-pecuniary compensatory damages to award, the Agency considered several reasons, such as: the approximately four months that the Agency delayed Complainant’s reasonable accommodation request; lack of good faith in accommodating Complainant; and statements from family, friends and colleagues detailing the emotional and physical harm caused to Complainant by the Agency’s actions. The Agency also considered that Complainant was suffering from a terminal condition at the time of the Agency’s actions, however noting that Complainant’s passing was not the result of the delayed accommodation. The Agency also acknowledged that the Commission has previously supported compensatory damages awards in cases involving pre-existing conditions that worsened where a complainant had demonstrated that the discrimination caused additional effects. The Agency cited to several cases in determining the amount to award and acknowledged Complainant’s estate’s request for a non- pecuniary award of $100,000.00 to $200,000.00. Based on a review of the record in its entirety, the Agency determined that Complainant should be awarded non-pecuniary compensatory damages in the amount of $100,000.00. On March 9, 2021, the Agency paid Complainant’s estate $100,000.00. The instant appeal followed. CONTENTIONS ON APPEAL On appeal, Complainant’s estate asserts that the Agency’s award of $100,000 in non-pecuniary compensatory damages was insufficient. Instead, Complainant’s estate requests an updated award amount of $200,000.00. In requesting this amount, Complainant’s estate asserts that it has properly demonstrated that the amount requested was appropriate. Complainant’s estate cited to several cases where the Commission had affirmed similar amounts in arguably similar cases. 3 On February 16, 2021, Complainant’s estate filed a Petition for Enforcement (PFE) regarding the Commission’s prior order in Don F. v. Soc. Sec. Admin. EEOC Appeal No. 2019002029 (Sept. 22, 2020). At the time of this appeal, Complainant’s PFE was pending. 2021002547 3 Complainant’s estate also noted the several affidavits from Complainant’s family, friends, and colleagues that were attached to the record that attested to the toll the Agency’s actions had on Complainant. Complainant’s estate asserts that Complainant was deprived of irreplaceable time with his family due to his increased stress, humiliation, frustration, and efforts spent battling his accommodation requests, and then time spent preparing for his EEO complaint. Complainant’s estate asserts that a non-pecuniary damage award of $200,000.00 is more than warranted based on the totality of the circumstances. In response, the Agency asserts that its original award of $100,000.00 for non-pecuniary compensatory damages is within the award range initially requested by Complainant’s estate, consistent with awards of similar cases, and appropriate for the circumstances. The Agency asserts that Complainant undeniably experienced harm as a result of the four-month delay in granting his reasonable accommodation. However, the Agency states that the emotional arguments presented on appeal should not impact the award amount as non-pecuniary compensatory damages should not be awarded based on passions, prejudice, or a desire to punish the agency. The Agency also cites to several cases in support of its award of $100,000.00 non- pecuniary compensatory damages and requests that the Commission affirm the decision. STANDARD OF REVIEW 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). See Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614, (EEO MD-110) 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”). ANALYSIS AND FINDINGS Compensatory Damages 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. 2021002547 4 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, a 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). 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 non-pecuniary damages. Sinnott v. Dep't of Defense, EEOC Appeal No. 01952872 (September 19, 1996). A complainant's own testimony, along with the circumstances of a particular case, can suffice to sustain his or her burden in this regard. The more inherently degrading or humiliating the defendant's action is, the more reasonable it is to infer that a person would suffer humiliation or distress from that action. The absence of supporting evidence, however, may affect the amount of damages appropriate in specific cases. Lawrence, EEOC Appeal No. 01952288. The Commission applies the principle that ‘a tortfeasor takes its victims as it finds them.’ Wallis v. U.S. Postal Serv., EEOC Appeal No. 01950510 (November 13, 1995) (quoting Williamson v. Handy Button Machine Co., 817 F.2d 1290, 1295 (7th Cir. 1987). The Commission also 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. 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 being on the Agency to establish the extent of this entitlement. Wallis, EEOC Appeal No. 01950510 (citing Maurer v. United States, 668 F.2d 98 (2d Cir. 1981); Finlay v. U.S. Postal Serv., EEOC Appeal No. 01942985 (April 29, 1997). Non-pecuniary damages are available to compensate the injured party for actual harm, even where the harm is intangible. Carter v. Duncan-Higgins, Ltd., 727 F.2d 1225 (D.C. Cir. 1984). Emotional harm will not be presumed simply because the complainant is a victim of discrimination. See Guidance at 5. The existence, nature, and severity of emotional harm must be proved. 2021002547 5 Id. Although there is no precise formula by which to calculate nonpecuniary damages, the method for computing non-pecuniary damages should typically be based on a consideration of the severity and duration of harm. Carpenter v. Dep’t of Agriculture, EEOC Appeal No. 01945652 (July 17, 1995); Guidance at 8. We note that for a proper award of non-pecuniary damages, 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 Ward-Jenkins v. Dep’t of the Interior, EEOC Appeal No. 01961483 (March 4, 1999) (citing Cygnar v. City of Chicago, 865 F.2d 827, 848 (7th Cir. 1989)). In this matter, Complainant clearly suffered emotional distress causally connected to the Agency’s actions. In their affidavits, Complainant’s family members and co-workers described the emotional distress they witnessed in Complainant in response to the delayed reasonable accommodation. Complainant’s wife detailed Complainant’s sleeplessness and nightmares due to the stress of having to respond to emails requesting for more information to support his requested accommodation. Complainant’s daughter and stepson shared similar sentiments of witnessing Complainant’s isolation, stress, and overall emotional turmoil. Complainant’s coworker detailed how Complainant’s demeanor changed and that he became withdrawn, stressed, and socially isolated. Upon review of the instant record and Commission precedent, we find that the Agency’s award of $100,000.00 in non-pecuniary compensatory damages to be appropriate. See Elsa S. v. NASA, EEOC Appeal No. 0720180021 (Feb. 14, 2020) ($100,000 in non- pecuniary compensatory damages for the agency's delay in reasonably accommodating complainant after multiple requests, where complainant's underlying medical conditions were exacerbated and she suffered from stress, embarrassment at work, depression, and loss of confidence); Clifford L., v. U.S. Postal Serv., EEOC Appeal No. 2021001926 (Feb. 2, 2022) (Commission increased non-pecuniary compensatory damages from $25,000.00 to $100,000.00, noting that the agency had failed to accommodate complainant for approximately five-years); Samuel R. v. Dep’t of Veterans Affs., EEOC Appeal No. 0120140216 (Feb. 25, 2015) ($100,000.00 in non-pecuniary compensatory damages where complainant suffered additional physical harm as well as psychological issues due to failure to accommodate despite clear medical need; complainant’s pre-existing condition notwithstanding); Liz M. v. U.S. Postal Serv., EEOC Appeal No. 0720180020 (Oct. 18, 2018) ($100,000 in non-pecuniary compensatory damages for the agency’s failure to provide a reasonable accommodation for approximately one year). Additionally, the Commission finds that this award is not “monstrously excessive” standing alone, is not the product of passion or prejudice, and is consistent with the amount awarded in similar cases. See Jackson v. U.S. Postal Serv., EEOC Appeal No. 01972555 (Apr. 15, 1999) (citing Cygnar v. City of Chicago, 865 F. 2d 827, 848 (7th Cir. 1989)). Lastly, Complainant’s estate noted the stress that Complainant suffered in preparing for his EEO complaint. 2021002547 6 We acknowledge the trying circumstances in this situation, however, the Commission has previously held that a complainant is not entitled to recover non-pecuniary damages for pain or stress associated with prosecution of an EEO complaint. Alexander v. Dep't of the Army, EEOC Appeal No. 0720060050 (Apr. 15, 2010) (citing Appleby v. Dep't of the Army, EEOC Appeal No. 01933897 (Mar. 4, 1994)). Accordingly, this was not taken into consideration when determining the appropriate non-pecuniary compensatory damages amount to award. In this matter, the Agency has demonstrated that it previously paid Complainant’s estate $100,000.00 for the non-pecuniary compensatory damages. Accordingly, no further action is required of the Agency. CONCLUSION Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we AFFIRM the Agency’s decision. STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0920) The Commission may, in its discretion, reconsider this appellate decision if Complainant or the Agency submits a written request that contains arguments or evidence that 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 for reconsideration must be filed with EEOC’s Office of Federal Operations (OFO) within thirty (30) calendar days of receipt of this decision. If the party requesting reconsideration elects to file a statement or brief in support of the request, that statement or brief must be filed together with the request for reconsideration. A party shall have twenty (20) calendar days from receipt of another party’s request for reconsideration within 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). Complainant should submit his or her request for reconsideration, and any statement or brief in support of his or her request, via the EEOC Public Portal, which can be found at https://publicportal.eeoc.gov/Portal/Login.aspx Alternatively, Complainant can submit his or her request and arguments to the Director, Office of Federal Operations, Equal Employment Opportunity Commission, via regular mail addressed to P.O. Box 77960, Washington, DC 20013, or by certified mail addressed to 131 M Street, NE, Washington, DC 20507. 2021002547 7 In the absence of a legible postmark, a complainant’s request to reconsider shall be deemed timely filed if OFO receives it by mail within five days of the expiration of the applicable filing period. See 29 C.F.R. § 1614.604. An agency’s request for reconsideration must be submitted in digital format via the EEOC’s Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). Either party’s request and/or statement or brief in opposition must also include proof of service on the other party, unless Complainant files his or her request via the EEOC Public Portal, in which case no proof of service is required. Failure to file within the 30-day time period will result in dismissal of the party’s request for reconsideration as untimely, unless extenuating circumstances prevented the timely filing of the request. Any supporting documentation must be submitted together with the 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 (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. 2021002547 8 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 May 11, 2022 Date