Complainant,v.Jacob J. Lew, Secretary, Department of the Treasury (Internal Revenue Service), Agency.

Equal Employment Opportunity Commission

Feb 11, 2015

0120133266 (E.E.O.C. Feb. 11, 2015)

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

,
Complainant,

v.

Jacob J. Lew,
Secretary,
Department of the Treasury
(Internal Revenue Service),
Agency.

Appeal No. 0120133266

Agency No. IRS-CC-09-0985F

DECISION
Complainant filed an appeal from the Agency’s September 12, 2013 Final Decision concerning
the compensatory damages awarded to her following a finding of 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 MODIFIES the Agency’s Final
Decision awarding Complainant $7,000 in nonpecuniary, compensatory damages and denying
her claim for past pecuniary damages.

BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Legal Assistant at
the Agency’s Tax and Finance facility in Michigan. Complainant filed an EEO complaint
alleging that the Agency discriminated against her on the bases of race, disability, and in
reprisal for prior protected EEO activity under Section 501 of the Rehabilitation Act of 1973
when:

1. Since August 2003, and continuing, management failed to provide Complainant
with a reasonable accommodation of a reduced workload and lifting assignments
within her medical restrictions.

2. On September 17, 2009, Complainant’s workload increased and she was
assigned higher-grade (GS-7) duties.

3. In October 2009, despite Complainant’s seniority, Complainant was not offered
an opportunity to move into a newer and larger work area.

0120133266

2
4. In November 2009, Complainant received a lowered annual performance
evaluation.

5. On March 9, 2010, S1 threatened Complainant with disciplinary action for not
immediately returning a handicapped parking key card.

The Agency issued a Final Decision finding no discrimination. Complainant appealed the
Agency’s Final Decision. In Complainant v. Dep’t of the Treasury

, EEOC Appeal No.
0120110751 (Apr. 19, 2013), the Commission found the Agency discriminated against
Complainant as alleged in claims (1) and (5) on the basis of disability. The Commission
concurred with the Agency that Complainant did not establish discrimination for the remainder
of the complaint. The Commission ordered the Agency to provide Complainant with remedies
including an opportunity to submit evidence in support of any claim for compensatory
damages.
In a Final Decision dated September 12, 2013, the Agency awarded Complainant $7,000 in
nonpecuniary, compensatory damages. The Agency denied Complainant’s request for
pecuniary damages. The instant appeal followed.

On appeal, Complainant requests that the Commission reverse the Agency’s denial of
pecuniary damages, stating that she has mitigated the medical bills she incurred as a result of
the exacerbation of her disability due to the stress caused by the Agency’s discrimination.
Complainant requests that the Commission award her $1,500 in pecuniary damages.
Complainant further states that pain and suffering she has endured because of the Agency’s
discriminatory actions warrant an award of nonpecuniary damages of $300,000.

ANALYSIS AND FINDINGS
As a preliminary matter, we decline to consider Complainant’s request for back pay,
restoration of leave, a higher performance evaluation, and promotion. We note that our prior
decision, Appeal No. 0120110751, provided Complainant with her right to appeal the
Commission order for corrective action. We find that neither party appealed that decision and
that the instant appeal concerns only the Agency’s Final Decision regarding compensatory
damages.

After establishing entitlement to an award of compensatory damages, there is no precise
formula for determining the amount of damages for nonpecuniary 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 Treas., EEOC Appeal No. 01955789 (Aug. 29, 1997). It
should likewise be consistent with amounts awarded in similar cases. See Hogeland v. Dep’t of
Agr., EEOC Appeal No. 01976440 (June 14, 1999). Nonpecuniary, compensatory damages
are designed to remedy a harm and not to punish the Agency for its discriminatory actions.
Furthermore, 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
0120133266

3
similar cases. See Ward-Jenkins v. Dep’t of the Interior, EEOC Appeal No. 01961483 (March
4, 1999)

.
In the instant case, we find that Complainant properly submitted evidence regarding her
damages to the Agency in response to the Agency’s request.

Nonpecuniary damages

In support of her claim for an award to compensate her for the pain and suffering she endured
due to discrimination, Complainant supplied statements from herself, a co-worker, and two
relatives. Complainant stated that the Agency’s failure to accommodate her disability (multiple
sclerosis) exacerbated her medical condition. Complainant stated that she became anxious and
depressed about the state of her health. Complainant stated she was fearful that she would
experience more seizures. Complainant added that she experienced pain and unstable blood
pressure. Complainant stated that when the Agency continued to ask for medical information,
she experienced desperation, humiliation, depression, anguish, anxiety, and despair.
Additionally, she stated that she experienced an increase in muscle spasms, sleeplessness, and
crying spells. Witnesses confirmed a negative change in Complainant’s overall disposition
during the time that the Agency failed to accommodate Complainant.

We find that Complainant has sufficiently described her symptoms, the aggravation of her
existing medical condition, as well as the impact the discrimination had upon her emotional
wellbeing. Based on our review of the evidence, we find that the Agency’s award of $7,000 in
nonpecuniary, compensatory damages is inconsistent with what the Commission has awarded
in similar cases. We find that an award in the amount of $10,000 in nonpecuniary,
compensatory damages would be more appropriate in the instant case. See Zehe v. Nat.
Aeronautics and Space Admin., EEOC Appeal No. 0120113282 (Mar. 26, 2013) ($10,000
nonpecuniary damage award where complainant suffered from a loss of enjoyment of life, fear
of losing his job, loss of appetite, insomnia, nightmares, and panic attacks caused by the stress
of a long commute, when the Agency failed to provide accommodations in the form of
telework following multiple seizures Complainant experienced in the presence of coworkers);
Rowan v. Dep't of Veterans Affairs

, EEOC Appeal No. 0120070384 (June 19, 2009) ($10,000
nonpecuniary damage award where complainant established that at least some of his stress,
humiliation, anxiety, sleeplessness, fears of termination, and depression were attributable to
the discriminatory conduct). Accordingly, we conclude that an award of $10,000 will
adequately compensate Complainant for the harm she suffered as a result of the Agency's
failure to reasonably accommodate her disability.
We note that this sum is meant to compensate Complainant for the emotional distress she
suffered, which was caused by the Agency's discriminatory actions. Finally, this amount
meets the goals of not being motivated by passion or prejudice, not being “monstrously
excessive” standing alone, and being consistent with the amounts awarded in similar cases. See
Cygnar v. City of Chicago

, 865 F.2d 827, 848 (7th Cir. 1989)
0120133266

4
Pecuniary damages

Damages for past pecuniary damages will not normally be sought without documentation such
as receipts, records, bills, cancelled checks, or confirmation by other individuals, or other
proof of actual losses or expenses. See

Compensatory and Punitive Damages Available Under
Section 102 of the Civil Rights Act of 1991 (July 14, 1992) (available at www.eeoc.gov.)
In support of her request for past pecuniary damages, Complainant presented the Agency with
copies of medical statements from her insurer from 2005 through 2011,1

as well as a statement
from a hospital for physical therapy services ($2,456.70) in 2011. In her own statement,
Complainant describes her need for physical therapy in connection with the worsening of her
condition caused by the Agency’s failure to accommodate her disability. We observe that
Complainant did not submit any explanation from a health care official specifying the charges
for treatment of Complainant’s symptoms that are related to Agency actions. We find that
from the record that it is not possible to determine which specific charges, if any, relate to the
discrimination. We find the evidence does not support an award of past pecuniary damages.
For that reason, we deny Complainant’s request for past pecuniary damages.

CONCLUSION
Based on a thorough review of the record, we MODIFY the remedial relief provided by the
Agency and we REMAND the complaint to the Agency to implement the remedial action set
forth in the Order herein.

ORDER
To the extent it has not already done so, the Agency shall take the following remedial action:

Within 30 days of the date this decision becomes final, the Agency shall pay
Complainant the amount of $10,000 in nonpecuniary, compensatory damages, less any
sums previously paid to Complainant for nonpecuniary damages in connection with the
instant complaint.

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 complete
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)), she is entitled to an award of reasonable attorney’s fees incurred in the

1 No total appears on the multipage summary of assorted charges, but the charges appear to
total in the thousands of dollars.
0120133266

5
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
0120133266

6
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

(T0610)
This decision affirms the Agency’s final decision/action in part, but it also requires the Agency
to continue its administrative processing of a portion of your complaint. 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 on both that portion of your complaint which
the Commission has affirmed and that portion of the complaint which has been remanded for
continued administrative processing. 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 your appeal with the Commission, until such time as the Agency issues its final decision on
your complaint. 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

(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
0120133266

7
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

Date
February 11, 2015