Randolph A.,1 Complainant,v.Robert Wilkie, Secretary, Department of Veterans Affairs, Agency.

Equal Employment Opportunity Commission

Sep 19, 2019

0120181473 (E.E.O.C. Sep. 19, 2019)

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

Randolph A.,1
Complainant,

v.

Robert Wilkie,
Secretary,
Department of Veterans Affairs,
Agency.

Appeal No. 0120181473

Hearing No. 550-2012-00207X

Agency No. 200P-0010-2010104757

DECISION

On March 27, 2018, Complainant 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
February 22, 2018 final order concerning its determination regarding compensatory damages in
his 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., 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 MODIFIES the Agency’s final order.

BACKGROUND

On September 22, 2010, Complainant filed an EEO complaint wherein he claimed that the Agency
discriminated against him on the bases of his race (Asian), national origin (Taiwan), age (61) and
in reprisal for his prior protected EEO activity when on September 7, 2010, he was not selected
for the position of Statistician, GS-13, under Vacancy Announcement No. VZ-10-SCM-349678-
PCC.

At the conclusion of the investigation, the Agency provided Complainant with a copy of the report
of investigation and notice of his right to request a hearing before an EEOC Administrative Judge

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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(AJ). Complainant timely requested a hearing. Over Complainant's objections, the AJ assigned
to the case granted the Agency’s Motion for Summary Judgment and issued a decision without a
hearing on August 29, 2011, finding that Complainant was not subjected to discrimination as
alleged. The Agency subsequently issued a final order adopting the AJ’s decision.

Complainant filed an appeal with the Commission. On August 6, 2015, the Commission reversed
the Agency’s final order and found that Complainant established that his non-selection was based
on reprisal. Complainant v. Dep’t of Veterans Affairs, EEOC Appeal No. 0120120184 (Aug. 6,
2015). To remedy the discrimination, the Commission ordered the Agency to offer Complainant
the GS-13 Statistician position or a substantially equivalent position at its facility in San Francisco
retroactive to the official date that the selectee began in the position. The Commission further
ordered the Agency to pay Complainant back pay and benefits with interest, to conduct a
supplemental investigation into Complainant’s entitlement to compensatory damages and
attorney’s fees and costs. The Commission stated that within 60 calendar days of the Agency’s
receipt of Complainant’s compensatory damages evidence and attorney’s fees statement, it shall
issue a final decision addressing the issues of attorney’s fees, costs, compensatory damages, and
back pay.

The Agency subsequently filed a request to reconsider. In Complainant v. Dep’t of Veterans
Affairs, EEOC Request No. 0520160050 (February 2, 2016), we denied the Agency’s request to
reconsider. On June 23, 2016, the Agency filed a Request to Vacate the Commission’s previous
decisions. Complainant subsequently filed a Petition for Enforcement. On November 22, 2017,
the Commission granted Complainant’s Petition for Enforcement and denied the Agency’s
Request to Vacate.

On February 22, 2018, the Agency issued its final order concerning an award of compensatory
damages. Complainant claimed $917,422 in pecuniary damages and $200,000 for non-pecuniary
damages. In addition, Complainant requested lost wages of $490,637 for the period he was
unemployed; $27,630 in lost Thrift Savings Plan benefits; $30,419 in Agency contributions to
Social Security; and $105,064 for reimbursement of additional taxes accrued, interest on his back
pay award, reimbursement of loans incurred, reimbursement of insurance premiums, and
reimbursement for medical, dental, prescriptions, laboratory and acupuncture expenses that would
have been covered by his Agency health insurance policy.

Complainant claimed $22,866 for out-of-pocket costs for medical services, $18,460 for dental
services and $115 for medications from late 2010 through July 9, 2016. The Agency noted that
Complainant argued he suffered insomnia and depression as a result of its decision not to hire him.
The Agency determined that Complainant was entitled to reimbursement for charges incurred for
the treatment of these conditions, specifically $315.00 for the services of one physician, and
$530.00 for the services of another physician. The Agency also stated that Complainant was
entitled to reimbursement of $13.25 for sleep medications. However, the Agency determined
Complainant was not entitled to pecuniary damages for his other medical and dental bills and
prescriptions because he had not shown a causal relationship between these expenses and the
Agency’s retaliatory non-selection at issue.
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The Agency noted that Complainant has chronic Hepatitis B and other medical conditions which
required medical treatment for which it was not responsible.

Complainant requested $8,763 in reimbursement for the cost of medical/dental/vision insurance
through July 9, 2016. Complainant claimed this was the additional amount required to add him to
his wife’s medical/dental/vision coverage. The Agency determined that reimbursement for health
insurance was an employment benefit recoverable as equitable relief and not within the scope of
this decision.

Complainant claimed that due to its failure to hire him, he experienced a severe loss of income,
which forced him to obtain loans. Complainant maintained that the cost of the loans in loan fees
and interest between late 2010 and the present was $15,234. Complainant took out two equity
loans for $38,301.56 and $228,563.32 and paid $14,619.85 in fees and interest. The Agency
determined that Complainant was entitled to reimbursement in the amount of $14,619.85 for the
fees and interest on the loans he took out to cover his expenses. With regard to Complainant’s
request for $182,270 in interest on his economic losses for the period of late 2010 through July 9,
2016, the Agency determined that interest on back pay was recoverable as equitable relief and was
not within the scope of its decision.

In terms of Complainant’s claim for future medical expenses, Complainant stated that he continues
to see a physician for insomnia. Complainant asserted that his physician recommended that he
take sleep classes in order to learn how to sleep without using medication. Complainant submitted
documentation on the cost of two such classes with the total being $6,498. The Agency determined
that Complainant provided sufficient evidence to support his claim of future medical expenses and
awarded him $6,498.

As for Complainant’s claim for non-pecuniary losses, the Agency asserted that Complainant
requested an award of $200,000. The Agency observed that Complainant claimed that he suffered
humiliation, anger, inability to sleep, anxiety, depression, social withdrawal and thoughts of
suicide as a result of the Agency not hiring him. Complainant claimed that in 2010 and 2011, he
could not sleep at all during the night three or four times a week. According to Complainant, he
currently has a problem with excessive daytime sleepiness and inability to sleep two to three times
a week. Complainant further claims that his relationship with his wife became very strained and
cold due to his depression and social withdrawal. Complainant stated that his reputation in the
statistics community was damaged by his nonselection. Complainant asserted that in 2010 and
2011, he thought of suicide because the Agency prevented him from securing employment.

In a report dated February 29, 2016, Complainant’s physician diagnosed him with persistent
insomnia, obstructive sleep apnea, and snoring. The report indicated that Complainant had surgery
for obstructive sleep apnea around 1997, but Complainant did not think it was effective. The
physician stated that Complainant reported his insomnia started in 2011. Complainant claimed
that he was able to fall asleep but wakes up a couple of hours later and cannot fall asleep again due
to his anxiety about being unemployed.

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In a letter dated April 4, 2016, another of Complainant’s physicians stated that approximately six
years ago, Complainant developed worsening anxiety and insomnia and had multiple vehicle
accidents due to excessive daytime sleepiness. According to the physician, Complainant is not
allowed to drive a car until his sleep disorders are treated.

Complainant asserted he used to have an active social and family life. Complainant stated that he
frequently socialized with coworkers, family or friends, but that he withdrew socially, partly due
to his embarrassment and humiliation at not being selected, and partly because his former Agency
coworkers were told not to talk to him. Complainant’s wife submitted an affidavit in support of
Complainant’s compensatory damages claim. She asserted that she noticed major changes in her
husband’s mood and behavior after he was not selected in 2010. According to her, previously
Complainant was active, sociable and generally fairly happy and easy to get along with. She
maintained that after the nonselection, Complainant became depressed, withdrawn and
uncommunicative. Further, she stated that Complainant has become irritable and argumentative,
which has caused great stress in their marriage. She supported Complainant’s assertion that they
were socially active before he was rejected for the Statistician position, but that since the
nonselection they are much less active and infrequently see friends. Complainant’s wife also
attested to her husband’s sleep difficulties since about 2010. According to Complainant’s wife,
his lack of income placed a large strain on their finances and caused them much anxiety and
embarrassment. She stated they needed to take out a second mortgage on their home and ask
friends for financial assistance. Further, she noted that adding her husband onto her medical/dental
insurance plan has cost her about $190 a month for a total of $11,970.

The Agency noted that Complainant was employed in 2013 and 2014 and that he earned
$161,296.77 in 2013 and $92,210 in 2014. The Agency then proceeded to find that Complainant
provided sufficient objective evidence to corroborate his testimony, thereby establishing that he
suffered emotional distress as a result of its retaliatory conduct. The Agency stated that
Complainant has suffered depression, anxiety, marital strain, social withdrawal, humiliation and
inability to sleep since his nonselection for the position of Statistician in September 2010. The
Agency concluded that the duration of harm attributable to the reprisal was approximately five
years. With respect to the nature and severity of harm, in addition to the aforementioned problems
experienced by Complainant, the Agency noted that Complainant suffered thoughts of suicide and
loss of professional reputation. In light of Complainant’s employment in 2013 and 2014, the
Agency stated that the damage to Complainant’s professional reputation was of a shorter duration
than the other forms of harm he endured. The Agency further noted that Complainant’s sleep
apnea is a contributing factor to Complainant’s daytime sleepiness, and that this factor supports a
lower award. The Agency issued an award of $75,000 for Complainant’s non-pecuniary losses
and overall an award of $96,976.81 in compensatory damages.2

2 The Agency’s decision appears to contain a slight calculation error as the identified awarded
amounts add up to $15,478.10 in pecuniary damages rather than the Agency’s stated $15,478.81.
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CONTENTIONS ON APPEAL

On appeal, Complainant contends that the Agency’s final decision violated the Commission’s
November 22, 2017 decision which ordered the Agency to conduct a supplemental investigation
into his compensatory damages and attorney’s fees and costs; and issue a final order regarding his
compensatory damages, back pay, and attorney’s fees and costs. Complainant states that the final
decision only addressed compensatory damages and not back pay and attorney’s fees and costs.

Complainant argues that the determinations concerning compensatory damages are erroneous
because the Agency failed to conduct a full supplemental investigation of compensatory damages
and also failed to consider supplementary evidence that he submitted regarding compensatory
damages. Complainant maintains that the Agency erroneously underestimated his compensatory
damages. According to Complainant, the Agency’s final decision takes into account amounts only
from his May 13, 2016 submission and ignores his December 29, 2017 and April 21, 2018
supplemental declarations on compensatory damages.

Complainant contends that the Agency erroneously concluded that it owes him $858.25 for his
out-of-pocket medical and dental costs rather than the $56,611 in such costs and interest that he
has requested and documented. Complainant disputes the Agency’s determination that he did not
establish a causal relationship between expenses incurred and its retaliatory conduct. According
to Complainant, had the Agency not refused to hire him in late 2010, he would not have incurred
these costs because they would have been covered by his medical insurance. Complainant states
that his claim for $56,611 includes $14,849 in interest. Complainant maintains that an award of
interest on the compensatory damages is proper given that the Agency has improperly delayed
payment of compensatory damages for almost two years.

Complainant challenges the Agency’s award of $14,619.85 for his out-of-pocket fees and interest
costs on loans he was forced to take out due to the Agency’s decision not to hire him. Complainant
states that the Agency referenced only loan cost figures from his May 13, 2016 submission and
ignored the information provided in his supplemental declarations. Complainant argues that the
amount awarded should be $30,427.74 as requested and documented in his initial and supplemental
declarations regarding compensatory damages plus any additional such costs and interest that are
incurred due to the Agency’s delay in paying him. Complainant does not challenge the Agency’s
determination that he is entitled to $6,498 for future pecuniary losses.

With respect to non-pecuniary losses, Complainant contends that rather than the Agency’s award
of $75,000, he should receive $175,000. Complainant references the pain and suffering and
physical symptoms he suffered due to the Agency’s retaliatory failure to hire him. Complainant
attempts to distinguish the cases relied upon by the Agency by stating that those cases did not
involve such severe emotional distress as in his situation. Complainant points to the fact that he
contemplated suicide and that his emotional distress has lasted for more than five years.
Complainant maintains that he should receive $175,000 in non-pecuniary damages in light of the
severity, intensity and long duration of his emotional distress.
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With regard to the Agency’s reliance on his sleep apnea as a basis for lowering his award,
Complainant states that sleep apnea could not have caused his suicidal thoughts and severe damage
to his professional reputation. Further, Complainant states that his sleep apnea could not have
caused his marriage to be transformed from very warm to cold and on the verge of divorce.

As for the issues of back pay, attorney’s fees and costs, Complainant contends that the Agency has
failed to conduct a supplemental investigation concerning attorney’s fees and costs and also failed
to comply with the Commission’s decision ordering the Agency to compensate him for back pay
and benefits, plus interest within 120 days, and offer him a GS-13 Statistician or substantially
equivalent position in San Francisco or offer him front pay until such a position is available.
Additionally, Complainant states that since the Agency has failed and refused to comply with three
decisions issued by the Commission, that the Commission should also sanction the Agency for its
repeated defiance of Commission orders.

In response, the Agency asserts that Complainant has filed over 30 EEO complaints against the
Agency. The Agency states that in each complaint Complainant claims that he was discriminated
against on the bases of his race, age, sex, national origin and in reprisal for his prior EEO activity
when he was not selected for a position. The Agency maintains that Complainant has abused the
EEO process to include this matter in which he knowingly violated a settlement agreement by
maintaining an action which he agreed to withdraw. The Agency asserts that Complainant is not
entitled to any relief because any damages would benefit Complainant for having successfully
deceived the Agency and the Commission.

The Agency states that in a settlement agreement dated November 15, 2010, subsequent to the
filing of the instant complaint, in the Commission’s Indianapolis District Office, Complainant
agreed to the dismissal of pending EEO claims and complaints. According to the Agency, the
Commission lacks jurisdiction to award damages in a matter that was dismissed through a valid
settlement agreement. The Agency argues that it is entitled to attack the Commission’s
discrimination finding. The Agency maintains that the fact Complainant could hide the settlement
agreement from California Agency representatives for a sufficiently long period of time does not
confer jurisdiction where it does not and never did exist.

ANALYSIS AND FINDINGS

Initially, we observe that with respect to Complainant’s arguments regarding back pay and
attorney’s fees, these matters are not presently before the Commission as the Agency’s decision
only addressed compensatory damages. Commission regulations contemplate that back pay
awards will be calculated in a separate proceeding by the Agency after a finding of discrimination.
See 5 C.F.R. § 550.805, 29 C.F.R. § 1614.501. If the Agency has not provided the full equitable
relief to which Complainant believes he is entitled, then these issues may be raised with the
Commission in connection with Compliance No. 0620180146 which has been docketed to monitor
any remaining issues.

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Furthermore, with respect to the Agency’s assertion that the instant matter is precluded by the
aforementioned settlement agreement, as discussed in previous associated matters in this case, we
find that this argument is untimely and that the Agency waived this argument by failing to raise it
during the hearing stage, the initial appeal, or its request to reconsider. While the Agency may
have intended for the settlement agreement to cover this complaint, the record is clear that the
Agency continued processing and litigating the complaint following the signing of the agreement.
The Commission is unpersuaded by the Agency’s arguments regarding bad faith or misconduct on
the part of Complainant or miscommunication issues within the Agency.

Compensatory Damages

Compensatory damages are awarded to compensate a complaining party for losses or suffering
inflicted due to the discriminatory act or conduct. See Equal Employment Opportunity
Management Directive (EEO MD-110) for 29 C.F.R. Part 1614 at Chapter 11, § VII (citing Carey
v. Piphus, 435 U.S. 247, 254 (1978)) (purpose of damages is to “compensate persons for injuries
caused by the deprivation of constitutional rights”). Types of compensatory damages include
damages for past pecuniary loss (out-of-pocket loss), future pecuniary loss, and non-pecuniary loss
(emotional harm). See EEO MD-110 at Chapter 11, § VII B; and Goetze v. Dep’t of the Navy,
EEOC Appeal No. 01991530 (Aug. 23, 2001).

Past Pecuniary Damages

Pecuniary losses are out-of-pocket expenses that are incurred as a result of the employer’s unlawful
action, including job-hunting expenses, moving expenses, medical expenses, psychiatric expenses,
physical therapy expenses and other such quantifiable expenses. Past pecuniary losses are losses
incurred prior to the resolution of a complaint through a finding of discrimination, or a voluntary
settlement, whereas future pecuniary damages are those likely to occur after the resolution of the
complaint. See Equal Employment Management Directive for 29 C.F.R. Part 1614 at Chapter 11,
§ VII B (Aug. 5, 2015).

In a claim for pecuniary compensatory damages, a 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, a complainant must prove that the agency’s discriminatory actions
were the cause of the pecuniary loss.

Complainant requests that the Agency pay him $56,611 to compensate him for his out-of-pocket
medical and dental costs and interest. In its final decision, the Agency awarded $858.25 for
reimbursement of medical expenses. The Agency stated that Complainant had claimed $22,866
for out-of-pocket costs for medical services, $18,460 for dental services and $115 for medications
from late 2010 through July 9, 2016.
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Complainant argues that had the Agency not refused to hire him, he would not have incurred the
costs he claims because they would have been covered by his medical insurance. The Commission
has held that an award of back pay should compensate a prevailing complaint for loss of health
insurance coverage by either: (1) reimbursing him for health insurance premiums paid to continue
in an agency-sponsored insurance plan or to secure alternative coverage; or (2) paying him for
uninsured medical expenses incurred during the relevant period up to the amount the agency would
have contributed to his health insurance premiums. Yerger v. U.S. Postal Serv., EEOC Petition
No. 04A50026 (September 22, 2005) (citing McKinney v. U.S. Postal Serv., EEOC Petition No.
04980005 (August 5, 1999)). Therefore, we find that nearly all of the amount sought by
Complainant for his out-of-pocket medical and dental costs and interest should be addressed by
the Agency when it issues its back pay award. We agree with the Agency’s award of $858.25 as
reimbursement of medical expenses for treating Complainant’s depression and insomnia since
those expenses were attributable to his retaliatory nonselection.

Complainant requests that the Agency pay him $30,427.74 to compensate him for his out-of-
pocket loan costs and interest for two loans he received after the Agency failed to hire him. In its
final decision, the Agency awarded Complainant $14,619.85 in fees and interest on the two loans.
Complainant claims that the Agency did not take into account the costs and interest that he
documented in his supplemental declarations concerning compensatory damages. Complainant
claims that these totals have continued to accumulate, and Complainant provided a $7,563.99
mortgage interest statement for 2016 in his December 29, 2017 supplemental declaration.
Although Complainant argues that his April 21, 2018 supplemental declaration should have been
taken into account, this argument lacks merit given that the Agency’s final order was issued on
February 22, 2018. Therefore, we shall not add the amount of $8,347.67 in mortgage interest for
2017 that is documented as part of the April 21, 2018 supplemental declaration. The Agency’s
determination that Complainant is entitled to $14,619.85 in fees and interest on the two loans at
issue is revised to reflect the additional sum of $7,563.99 and therefore the total awarded is
$22,183.84.

Future Pecuniary Damages

Complainant requests that he be awarded $6,498 to compensate him for his future pecuniary costs.
In its final order, the Agency awarded Complainant $6,498 for future pecuniary losses. This
amount reflects the future medical expenses Complainant will incur for Cognitive Behavioral
Therapy for insomnia. We discern no reason to adjust the amount awarded. Therefore,
Complainant is awarded $6,498 for future pecuniary losses.

Non-Pecuniary Damages

Non-pecuniary losses are losses that are not subject to precise quantification, including emotional
pain and injury to character, professional standing and reputation.
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There is no precise formula for determining the amount of 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 to 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 a
complainant concerning his or her 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.

Statements from others including family members, friends, health care providers, 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,

With regard to a complainant’s claim for compensatory damages, the complainant has the burden
of proving the existence, nature and severity of the alleged emotional harm. A complainant must
establish a causal relationship between the alleged harm and the discrimination. Absence such
proof of harm and causation, a complainant is not entitled to compensatory damages, even if there
were a finding of unlawful discrimination. The Commission has held that evidence of emotional
distress should include detailed information on physical or behavioral manifestations of the
distress, if any, and any other information on the intensity of the distress, information on the
duration of the distress, and examples of how the distress affected complainant both on and off the
job. Carle v. Dep’t of the Navy, EEOC Appeal No. 01922369 (Jan. 5, 1993). In addition to a
detailed statement by the individual claiming emotional distress damages, other evidence of such
damages could include statements by health care professionals, such as physicians, psychologists,
psychiatrists, therapists or counselors, as well as friends, family or coworkers who could attest to
the existence, nature and severity of complainant’s distress, its duration and causation.

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We observe that the Agency issued an award of $75,000 to Complainant for non-pecuniary losses.
On appeal, Complainant seeks $175,000 in non-pecuniary losses. Taking into account the
evidence submitted by Complainant, including his statements, his wife’s statement and statements
from his physicians regarding his insomnia and anxiety, the Commission finds that an award of
$100,000 is appropriate. This amount takes into consideration the severity of the harm suffered
and is consistent with prior Commission precedent. See Hendley v. Dep’t of Justice, EEOC Appeal
No. 01A20977 (May 15, 2003), req. for recon. dismissed, EEOC Request No. 05A30962 (Jan. 14,
2004) ($100,000 awarded where complainant was diagnosed with severe bipolar disorder, had
experienced paranoia, insomnia, eating disorders, and uncontrollable crying for six years, and
would require treatment for the rest of her life; Patel v. Dep’t of the Army, EEOC Appeal No.
01980279 (Sept. 26, 2001) ($100,000 awarded where, after several discriminatory nonselections,
complainant required continuous medical treatment for five years, covering major depression,
chest pains, palpitations, anxiety, and insomnia); and Finlay v. U.S. Postal Serv., EEOC Appeal
No. 01942985 (Apr. 30, 1997) ($100,000 awarded where complainant experienced depression,
frequent crying, concern for her safety, lethargy, social withdrawal, recurring nightmares, a
damaged marriage, stomach distress, and headaches for a period of four years, and was expected
to continue experiencing those symptoms for an indeterminate time). In arriving at our award, we
take into consideration that Complainant had sleep apnea long before the relevant nonselection.
While we acknowledge the likelihood that his worsening sleep disorder was partially attributable
to his nonselection, it also appears that his sleep apnea played a significant role in his sleep
disorder. We consider the Agency’s award of $75,000 to be somewhat low in light of the impact
of the nonselection on Complainant’s life. However, we are not persuaded that Complainant
experienced as much distress as he has claimed or that the single nonselection at issue could have
caused a reasonable person to have such a high degree of suffering. Thus, we shall award
Complainant $100,000 for non-pecuniary losses.

CONCLUSION

The Agency’s determination in its final order is MODIFIED. Complainant is awarded $100,000
in non-pecuniary damages, $6,498 for future pecuniary damages and $23,042.09 in past pecuniary
damages.

ORDER
The Agency, to the extent it has not already done so, is ordered to take the following actions:
1. Within sixty (60) calendar days of the date this decision becomes final, the Agency
shall pay Complainant compensatory damages in the amount of $129,540.09.
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).
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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.

ATTORNEY'S FEES (H1016)
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 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 the date this
decision was issued. 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 (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). 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.
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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).
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 to 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.
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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 19, 2019
Date