Dallas D.,1 Complainant,v.Megan J. Brennan, Postmaster General, United States Postal Service (Pacific Area), Agency.

Equal Employment Opportunity Commission

Mar 24, 2017

0120150319 (E.E.O.C. Mar. 24, 2017)

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

Dallas D.,1
Complainant,

v.

Megan J. Brennan,
Postmaster General,
United States Postal Service
(Pacific Area),
Agency.

Appeal No. 0120150319

Agency No. 4F-920-0126-12

DECISION

The Commission accepts Complainant’s appeal from the Agency’s September 30, 2014, final
decision concerning his claim for compensatory damages stemming from 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.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a Part-Time
Flexible City Carrier at the Agency’s Post Office in Indio, California. On October 3, 2012,
Complainant filed a formal complaint alleging that the Agency discriminated against him based
on disability (diabetes) when he was subjected to a hostile work environment, disparate
treatment, and denied reasonable accommodation regarding a series of incidents that occurred
between June 2012 and May 2013.

After the investigation into the complaint, the Agency provided Complainant with a copy of the
report of investigation and notice of his right to request a hearing before an Equal Employment
Opportunity Commission Administrative Judge (AJ). In accordance with Complainant’s
request, the Agency issued a final decision pursuant to 29 C.F.R. § 1614.110(b). The decision

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.
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concluded that Complainant failed to prove that the Agency denied him reasonable
accommodation or subjected him to discrimination or a hostile work environment as alleged.

Complainant appealed and, in Complainant v. U.S. Postal Serv., EEOC Appeal No.
0120140761 (June 13, 2014), the Commission found that the Agency had denied Complainant
reasonable accommodation and subjected him to a hostile work environment based on his
disability. The Commission found that, due to his medical condition, Complainant needed the
Agency to allow him time to get his glucose levels under control. Instead of addressing his
requests for leave as a reasonable accommodation request for flexibility in allowing him to take
leave when medically indicated, Complainant’s supervisor would order Complainant to return
to work. When Complainant indicated that he could not do so, he would leave the workplace
due to his medical condition and his supervisor would issue disciplinary action for failing to
comply with her orders. Furthermore, the Commission found that Complainant’s supervisor
failed to provide Complainant with reasonable accommodation when his eight-hour work
restriction was ignored. Finally, the Commission found that Complainant’s supervisor had
harassed Complainant with requests for medical documentation, investigative interviews,
discipline, negative comments about his medical condition, and an aggressive attitude towards
Complainant’s leave requests and limitations. As a result, the Commission found that
Complainant had been denied reasonable accommodation and subjected to a hostile work
environment based on his disability for which the Agency was liable. Among other remedies,
the Commission ordered the Agency to conduct a supplemental investigation regarding
Complainant’s entitlement to compensatory damages.

Following its supplemental investigation, the Agency issued its final decision regarding
compensatory damages on September 30, 2014. The Agency determined that Complainant
failed to establish an entitlement to pecuniary damages. The Agency awarded Complainant
$12,000.00 in non-pecuniary compensatory damages. The instant appeal followed.

CONTENTIONS ON APPEAL

On appeal, Complainant contends that he suffered depression and anxiety because of the
harassment and discrimination he suffered. While diabetes was a preexisting condition,
Complainant argues that stress from the discrimination, not being able to take his shots when
needed, and working over his restrictions negatively affected his condition. This caused him
to develop neuropathy and depression, and led to him being prescribed multiple medications.
Complainant claims that he presented evidence that he attempted suicide, which the Agency
questioned in the final decision. Accordingly, Complainant requests that the Commission
award him pecuniary damages and increase the Agency’s award of non-pecuniary damages.

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). See Equal Employment Opportunity Management Directive for 29
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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 the
Commission “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”).

When discrimination is found, the Agency must provide the complainant with a remedy that
constitutes full, make-whole relief to restore him as nearly as possible to the position he would
have occupied absent the discrimination. See, e.g., Franks v. Bowman Transp. Co., 424 U.S.
747, 764 (1976); Albemarle Paper Co. v. Moody, 422 U.S. 405, 418-19 (1975); Adesanya v.
U.S. Postal Serv., EEOC Appeal No. 01933395 (July 21, 1994). Pursuant to section 102(a) of
the Civil Rights Act of 1991, a complainant who establishes unlawful intentional discrimination
under either Title VII of the Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C.
§ 2000e et seq., or Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as
amended, 29 U.S.C. § 791 et seq. may receive 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) as part of this “make whole” relief. 42 U.S.C. § 1981a(b)(3). In
West v. Gibson, 119 S.Ct. 1906 (1999), the Supreme Court held that Congress afforded the
Commission the authority to award compensatory damages in the administrative process. For
an employer with more than 500 employees, such as the Agency, the limit of liability for
future pecuniary and non-pecuniary damages is $300,000. 42 U.S.C. § 1981a(b)(3).

Pecuniary Damages

Pecuniary losses are out-of-pocket expenses incurred because of the Agency’s unlawful action,
including job-hunting expenses, moving expenses, medical expenses, psychiatric expenses,
physical therapy expenses, and other quantifiable out-of-pocket expenses. Past pecuniary
losses are losses incurred prior to the resolution of a complaint through a finding of
discrimination, or a voluntary settlement. EEO MD-110, at Chap. 11, VII.B.2 (Aug. 5, 2015)
(internal citations omitted). Future pecuniary damages are losses likely to occur after the
resolution of the complaint.

In a claim for pecuniary compensatory damages, Complainant must demonstrate, through
appropriate evidence and documentation, the harm suffered because of the Agency’s
discriminatory action. Objective evidence in support of a claim for pecuniary damages
includes documentation showing actual out-of-pocket expenses with an explanation of the
expenditure. The Agency is only responsible for those damages that are clearly shown to be
caused by the Agency’s discriminatory conduct. To recover damages, Complainant must
prove that the employer's discriminatory actions were the cause of the pecuniary loss. Id.
(internal citations omitted).

Complainant requested $67,183.60 in pecuniary damages. That total included $5,600.00 for
40 years of future visits to his foot doctor; $2,800.00 for 40 years of future visits to his
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neurologist; $40,000.00 for 40 years of future medications; $1,503.60 for an insulin pump;
and $17,280.00 for future costs of equipment for an insulin pump. Supp’l ROI, at 162.
Complainant specifically stated that he was not requesting reimbursement for past co-pays,
doctor’s visits, hospital visits, and medication costs. Id.

With respect to his request for the costs of future visits to the foot doctor and neurologist, the
Commission agrees with the Agency’s finding that the requests are not supported by the
evidence in the record and are entirely speculative. Complainant states that he was diagnosed
with diabetes when he was 17 years old. The discriminatory events at issue occurred between
June 2012 and May 2013. Complainant submitted documentation indicating that he first
received medical treatment for foot pain related to diabetic neuropathy in June 2012,
approximately five days after the first discriminatory incident. Supp’l ROI, at 78. The
Agency argues that this shows that Complainant’s neuropathy could not have been caused by
events at work as neuropathy is believed to be caused by prolonged high blood sugar in
diabetics. Complainant informed his doctor in a follow-up examination in July 2012 that his
foot pain had subsided since beginning medication. Id. at 82. The record indicates that
Complainant continued treatment and various medications, but did not complain of foot pain
again until March 2013. Id. at 108. The Agency noted that Complainant had been out on
dependent care leave following the birth of his son prior to this visit to his doctor.

Additionally, in his submitted medical documentation, one doctor who had treated Complainant
since November 2013 stated that Complainant experienced painful Diabetic Peripheral
Neuropathy, but the exact cause of the condition was not known. Supp’l ROI, at 69.
Nonetheless, the doctor noted that fluctuations in and poor control of blood sugar levels due to
stress could lead to diabetic complications, including neuropathy. Id. Complainant was placed
on medication for pain control due to diabetic neuropathy, which he will need for the rest of
his life to prevent nerve damage. Id. At various points in the record, doctors noted that
Complainant was not checking his blood sugar levels adequately, not compliant in taking
medication, and not following a proper diet. Id. at 82, 84, 87, 103. While documentation
additionally indicates that Complainant complained to his doctors about work-related stress, the
record supports that Complainant’s pre-existing condition and his failure to adhere to his
doctors’ care recommendations significantly contributed to his diabetic neuropathy and foot
condition. Additionally, there is insufficient evidence in the record detailing Complainant’s
future treatment needs, the duration of the treatment, and the full costs of the treatment.
Complainant has not persuasively shown a causal connection between the discrimination and
medical expenses he may incur in the future. Thus, the Commission finds that Complainant
has not established an entitlement to an award for future costs of visits to his foot doctor and
neurologist and the associated future medication costs.

With respect to his request for future medication costs for depression, the record reveals that
Complainant had been treated for depression and anxiety prior to the discriminatory events at
issue. Supp’l ROI, at 70-73, 75. Complainant was treated for an anxiety-related incident in
December 2012 following one of the Agency’s discriminatory actions. Id. at 133-34.
Complainant’s medical reports further indicate that he was prescribed Cymbalta for depression
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starting in June 2013. Id. at 110. Complainant’s doctor stated that Cymbalta is an
antidepressant, but is also widely used for diabetic neuropathic pain control. Id. at 69.
Further, the doctor declared that Complainant had developed some depression because of the
pain and that Cymbalta was effective in management of his symptoms. Id. Accordingly,
Complainant’s doctor connected Complainant’s depression to the pain from his diabetic
neuropathy condition, and not the Agency’s discriminatory actions. As a result, the
Commission agrees with the Agency that Complainant has not established an entitlement to
costs related to future treatment and medication for depression and anxiety.

Finally, with respect to his request for costs related to the insulin pump and supplies, the
record shows that Complainant first purchased and received an insulin pump around July 2014,
much later than the discriminatory incidents at issue occurred. Supp’l ROI, at 156. The
record indicates that in December 2013, Complainant’s doctor considered prescribing
Complainant an insulin pump, but believed that Complainant first needed to control his blood
sugar. Id. at 110. Complainant has presented no evidence linking his need for the insulin
pump to the Agency’s discriminatory actions. Accordingly, the Commission finds that
Complainant is not entitled to reimbursement for the costs of the insulin pump and lifelong
supplies. As a result, the Commission finds that Complainant has not established an
entitlement to pecuniary damages.

Non-Pecuniary Damages

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
EEOC Notice No. 915.302 at 10 (July 14, 1992). 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). The Commission notes
that non-pecuniary compensatory damages are designed to remedy the harm caused by the
discriminatory event rather than punish the Agency for the discriminatory action.
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
similar cases. See Ward-Jenkins v. Dep't of the Interior, EEOC Appeal No. 01961483 (Mar.
4, 1999).

Evidence from a health care provider or other expert is not a mandatory prerequisite for
recovery of compensatory damages for emotional harm. See Lawrence v. U.S. Postal Serv.,
EEOC Appeal No. 01952288 (Apr. 18, 1996) (citing Carle v. Dep't of the Navy, EEOC
Appeal No. 01922369 (Jan. 5, 1993)). Objective evidence of compensatory damages can
include statements from Complainant concerning his 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. Id.
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Statements from others including family members, friends, health care providers, and other
counselors (including clergy) 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. Complainant’s own testimony, along with the circumstances of a particular
case, can suffice to sustain his burden in this regard. Id. 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. Id. The absence of supporting evidence,
however, may affect the amount of damages appropriate in specific cases. Id.

Here, Complainant attested that he suffered extreme stress and marital problems, exacerbation
of his pre-existing conditions, constant abdominal pain which was later diagnosed as anxiety,
isolation from his family and social gatherings, and attempted suicide due to the Agency’s
discriminatory actions. Supp’l ROI, at 47-51. Complainant’s wife confirmed that
Complainant suffered physical and severe emotional distress. Id. at 53-56. Complainant
submitted several statements from family members stating they witnessed mental anguish and
the familial strife Complainant experienced because of the stress of his work situation. Id. at
57-59.

The Commission finds that an award of $30,000.00 is more appropriate than the $12,000.00
awarded by the Agency, given the nature and duration of the harm. The Commission finds
that this award is supported by the evidence, is neither “monstrously excessive” nor the
product of passion or prejudice, and is consistent with prior Commission precedent. See Banks
v. U.S. Postal Serv., EEOC Appeal No. 07A20037 (Sept. 29, 2003) ($35,000 awarded where
complainant suffered from emotional harm in the form of humiliation, intimidation,
embarrassment, and deep depression); McNeese-Ards v. Dep't of Veterans Affairs, EEOC
Appeal No. 0720090027 (Apr. 15, 2010) ($45,000 in non-pecuniary compensatory damages
awarded where complainant suffered from depression, loss of sleep, severe emotional distress,
and anxiety); Flowers v. United States Postal Service, EEOC Appeal No. 01A43114 (Oct. 7,
2004), request for recon. denied, EEOC Request No. 05A50243 (Jan. 11, 2005) ($20,000.00
where complainant established that, despite other contributing factors, discrimination resulted
in sleeplessness, depression, emotional distress, anxiety, loss of enjoyment of life and strained
family relationships).

CONCLUSION

Based on a thorough review of the record and the contentions on appeal, including those not
specifically addressed herein, the Commission MODIFIES the Agency's final decision and
REMANDS this matter for further processing in accordance with this Decision and the Order
below.

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ORDER

The Agency is ordered to take the following remedial action:

1. Pay Complainant $30,000.00 in non-pecuniary compensatory damages within 30 days from
the date this decision is issued, minus any amounts already paid if any.

The Agency is further directed to submit a report of compliance, as provided in the statement
entitled “Implementation of the Commission's Decision.” The report shall include supporting
documentation verifying that the corrective action has been implemented.

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 (M0416)

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.

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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 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. The requests 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 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 (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
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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

March 24, 2017
Date