Starr R.,1 Complainant,v.Denise Turner Roth, Administrator, General Services Administration, Agency.

Equal Employment Opportunity Commission

Jan 12, 2017

0120143031 (E.E.O.C. Jan. 12, 2017)

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

Starr R.,1
Complainant,

v.

Denise Turner Roth,
Administrator,
General Services Administration,
Agency.

Appeal No. 0120143031

Agency No. 12-R04-FAS-CLB-11

DECISION

On September 4, 2014, Complainant filed an appeal pursuant to 29 C.F.R. § 1614.403(a),
from the Agency’s August 7, 2014, final decision concerning her equal employment
opportunity (EEO) complaint alleging employment discrimination in violation of Title VII of
the Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. § 2000e et seq. and 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 decision.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a Financial
Management Analyst, GS-0501-11, in the Atlanta Financial Service Center, Federal
Acquisition Service (FAS) located in Atlanta, Georgia. Complainant began working for the
Agency in August 2010. On February 14, 2012, Complainant experienced a grand mal seizure
at work. Complainant was subsequently diagnosed with epilepsy. Complainant requested and
received 12 weeks of leave under the Family Medical Leave Act.

On May 21, 2012, Complainant’s physician faxed documentation to the Office of Human
Resources (HR) which provided information about her condition and authorized her to
telework from home full time. On June 20, 2012, Complainant submitted a formal request for
reasonable accommodation, along with a completed medical questionnaire, to the Office of

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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Human Resources. On August 22, 2012, Complainant submitted an additional request for
reasonable accommodation, along with medical documentation from Complainant’s new
physician to the Office of Human Resources.

On August 28, 2012, Complainant’s first level supervisor denied Complainant’s request for
reasonable accommodation in a letter titled Final Decision on Request for Reasonable
Accommodation. Complainant subsequently sent a new request for reasonable accommodation
to her first level supervisor. On September 7, 2012, Complainant agreed to an arrangement
that would allow her to work from home two days per week and work in the office two days
per week. This arrangement was finalized on September 14, 2012. Complainant returned to
the office on September 19, 2012.

On August 22, 2012, Complainant filed an EEO complaint, which was subsequently amended.
Complainant’s complaint contained the following allegations:

(1) The Agency discriminated against Complainant on the bases of disability (epilepsy) and
in reprisal for a union grievance when her request for reasonable accommodation
submitted on June 20, 2012, was not approved by her supervisor by August 22, 2012.

(2) Complainant was subjected to discrimination based on race (African-American) when
her supervisor denied her request to work from home as a reasonable accommodation,
which Complainant was made aware of on August 30, 2012.

(3) Complainant alleged she was subjected to retaliation for prior protected activity when
her supervisor changed her duties to add an overwhelming amount of new tasks and
additional duties after she requested a reasonable accommodation.

(4) Complainant alleged she was subjected to discriminatory harassment based on disability
(epilepsy) and in reprisal for prior EEO activity (filed a formal complaint of
discrimination on August 22, 2012) when Complainant’s supervisor deliberately
“combs through every piece of work” that Complainant does to try and find something
wrong with her work, calls her on the telephone, constantly checks on her, sends her
chats, and checks on her several times when she is teleworking, which her supervisor
did not do for other employees.

At the conclusion of the investigation, the Agency provided Complainant with a copy of the
report of investigation and notice of her right to request a hearing before an Equal Employment
Opportunity Commission Administrative Judge (AJ). When Complainant did not request a
hearing within the time frame provided in 29 C.F.R. § 1614.108(f), the Agency issued a final
decision pursuant to 29 C.F.R. § 1614.110(b). The Agency’s decision dated April 25, 2014,
concluded that Complainant proved that the Agency subjected her to discrimination based on
race and disability when the Agency denied her request for reasonable accommodation. The
Agency found Complainant did not show that she was subjected to reprisal discrimination or a
hostile work environment.
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As relief for the finding of discrimination, the Agency found Complainant was due back pay
(less interim earnings), interest, and any and all benefits or training that she would have
otherwise earned or received but for the prohibited discrimination. The Agency determined
Complainant may be entitled to damages and informed her of the type of evidence that must be
submitted to support a claim for damages. Complainant was afforded 30 days to submit
evidence in support of her claim for damages. The Agency was also ordered to: post a notice
of violation; consider taking disciplinary action against the responsible management officials;
and conduct training for all management officials involved in the complaint regarding their
obligations under Title VII of the Civil Rights Act and the Rehabilitation Act of 1973. The
decision noted that within 30 days of receipt of all necessary information, the Agency will
implement the relief and advise Complainant in writing of the amount of relief and other
benefits due to her and inform Complainant how management reached its determinations.

Complainant submitted a Request for Relief and Damages dated May 22, 2014. Complainant
requested $172,448.08 in back pay and benefits with interest. Complainant requested $70,000
in past pecuniary and future pecuniary losses ($35,000 for race discrimination and $35,000 for
disability discrimination) for medical treatment, medical expenses, prescription medication,
treatment for depression and anxiety, treatment for medical weight loss, and medical mileage.

Complainant requested $700,000 in nonpecuniary damages ($350,000 for race discrimination
and $350,000 for disability discrimination) for emotional harm including pain and suffering,
mental anguish, loss of sleep, damaged reputation, loss of enjoyment of life, depression,
anxiety, weight gain, low self-esteem, and loss of permanent career status with the federal
government. Specifically, Complainant stated she suffered mental anguish, depression, shame,
and a damaged reputation as a result of being discriminated against and going through a tedious
EEO investigation process. Complainant stated she became completely overwhelmed and
reached her breaking point, became ill, and was unable to complete the affidavits required to
pursue her retaliation and harassment complaints. Complainant averred that as a result of the
discrimination she started having severe migraine headaches and more seizures than normal.
Complainant reported that the work environment became increasingly stressful and unpleasant
for her and she was on the verge of having a nervous breakdown. Complainant reported that
after she filed her EEO complaint her supervisor started harassing her and retaliating against
her and made her life and job miserable and unbearable. Complainant stated her health was
declining and she was severely depressed and having difficulty sleeping. Complainant reported
that her doctor told her that he believed the stress at work was making her epilepsy worse.
Complainant stated she ultimately left her job due to the harassment. Complainant stated that
she no longer enjoys things that used to give her pleasure, such as a family night out or game
night with the kids. Complainant stated she lost interest in helping her kids with their
homework and attending sports events and school activities. Complainant stated that prior to
battling depression, she used to like to socialize with friends and family and after the
discrimination she no longer has “the strength, energy, or desire to socialize and congregate
with others.” Complainant explained that being the victim of discrimination has hurt her pride
and diminished her value and self-worth. Complainant stated that because of the depression
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she has a hard time sleeping at night, has disturbing thoughts, difficulty concentrating,
irritability, and jumpiness. Complainant stated that she is afraid to let others know she has a
disability because she is afraid they will treat her differently and discriminate against her.

In addition, Complainant requested to be reinstated and promoted to a GS-13 position with the
Agency in Atlanta, Georgia. Complainant also sought to have the Agency expunge all
references to any adverse action from her official personnel file. Finally, Complainant
requested written letters of apology from the Agency and that disciplinary action be
implemented against the responsible management officials.

Complainant’s husband provided a statement dated May 22, 2014. Complainant’s husband
stated that the discrimination his wife experienced has taken a toll on her mentally, physically,
and emotionally. He stated that Complainant became depressed because her supervisors would
not approve her reasonable accommodation request. He noted that Complainant’s doctor
prescribed medication for the depression, but he stated she still struggles with it now.
Complainant’s husband stated that since the discrimination started it has been a constant
struggle for his wife and their family. He explained that the constant paperwork, affidavits,
and rebuttals were becoming increasingly stressful for her. He relayed that each time she
would get documents in the mail and read her supervisors’ statements, she would get upset.
He stated this would run her blood pressure up and she would get sick. Complainant’s
husband noted that Complainant eventually went back to work but her supervisor treated her
poorly after she filed the EEO claim. He stated that the supervisor would call her and harass
her while she was working from home. He noted this would cause unnecessary stress on
Complainant and stated the neurologist believed all the pressure they were putting on her at
work was causing her to have more seizures. Complainant’s husband stated that the work
environment became intolerable for Complainant and stated that the many days when he picked
her up she would get in the car crying and talked about how her supervisor was harassing her
and retaliating against her for filing the EEO complaint. Complainant’s husband noted that
Complainant resigned from the Agency and accepted a job elsewhere and is much happier and
seems to be getting a little better now. However, he stated that things were really bad while
Complainant was working at the Agency and dealing with discrimination and an EEO
investigation. He noted she gained weight, had difficulty sleeping, had frequent migraines,
suffered from depression and anxiety, lost interest in a lot of things she once loved doing.
Complainant’s husband also noted as a result of the discrimination, Complainant is more easily
frustrated and overwhelmed with everyday tasks, duties, and chores.

On June 30, 2014, the Agency’s Office of the Chief Financial Officer (OCFO) submitted a
response to Complainant’s request. The Agency argued that Complainant was not entitled to
back pay, restoration of leave, or other lost benefits because she failed to present any evidence
of a nexus between the discriminatory actions and the relief she sought. The Agency
additionally argued that Complainant was not entitled to pecuniary damages because she did
not present evidence of entitlement as stated in the April 25, 2014 final decision. The Agency
also stated that nonpecuniary damages were not warranted as Complainant failed to support her
request with objective evidence or documentation.
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On August 7, 2014, the Agency issued a final decision regarding Complainant’s Request for
Relief and Damages. The Agency determined Complainant’s claim for pecuniary damages was
unsupported by documentation in the record. The Agency recognized the April 25, 2014 final
decision outlined the essential factors that must be present to document evidence of past
pecuniary and future pecuniary losses. The Agency noted that Complainant failed to provide
any documentary evidence to support her claim and did not address the nexus between the
alleged harm and the unlawful Agency action. Thus, the Agency denied Complainant’s claim
for past and future pecuniary damages.

The Agency noted Complainant was charged Leave Without Pay (LWOP) for leave she took as
a result of the Agency’s failure to accommodate her. Thus, the Agency determined that to
make Complainant whole, she was entitled to back pay and benefits from the date the Agency
ignored and denied her requests for accommodation and for hours that Complainant was in
LWOP status as a result of the Agency’s failure to accommodate her. The Agency recognized
Complainant first notified the Agency of her need for accommodation on May 21, 2012, and
was not able to return to work under a suitable provisional reasonable accommodation until
September 19, 2012. Thus, the Agency determined Complainant was entitled to an award of
back pay, including all pay and benefits she would have received had she been accommodated
for approximately three months and 29 calendar days.

The Agency stated that between May 21, 2012, and September 19, 2012, Complainant took
604 hours of leave without pay. The Agency noted that when calculated at Complainant’s
earning status at the time of the discrimination, Complainant was entitled to a total of
$23,384.80 in back pay, which included her salary and restoration of government deductions
for Thrift Savings Plan (TSP) contributions, Medicare, Old Age Survivor and Disability
Insurance (OASDI), and retirement benefits plus interest. Additionally, the Agency stated it
would restore 46 hours of annual leave and 30 hours of sick leave for the period in question.

Next, the Agency addressed Complainant’s claim for nonpecuniary damages. The Agency
determined that based on the evidence provided, not all of the pain, suffering, and mental
anguish that Complainant asserted can be attributed to the Agency’s discriminatory actions.
The Agency determined there was not sufficient evidence to show that the discriminatory
actions of the Agency, rather than the stress of work and the EEO process, led to a worsening
of Complainant’s condition.

In addition, the Agency noted that although Complainant asserted emotional harm due to the
alleged retaliation and harassment she experienced after filing her EEO complaint, she did not
prevail on this aspect of her complaint and thus, was not entitled to damages on those
associated claims. The Agency also stated it appeared Complainant was raising issues of
constructive discharge regarding loss of permanent career status. The Agency stated this was
not part of the claim under consideration in the final decision and would not be considered in
calculating compensatory damages. Moreover, the Agency noted that evidence showed that
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Complainant’s career status was not impacted and that Complainant holds a GS-12 permanent
career appointment position in the Department of Labor.

The Agency also noted that some portion of the emotional harm Complainant claimed was
attributable to the stress of the EEO process. The Agency claimed that harm for the stress of
engaging in the EEO process is not compensable in damages.

The Agency determined Complainant met her burden of showing she was entitled to an award
of nonpecuniary damages. The Agency determined an award of $12,000.00 for nonpecuniary,
compensatory damages was appropriate.

The Agency noted Complainant also requested reinstatement and promotion to a GS-12
position, the removal of adverse action from Complainant’s personnel file, an apology, and
disciplinary action against the responsible management officials. Regarding Complainant’s
request for file expungement, the Agency noted the record did not reflect that any adverse
action was documented in Complainant’s personnel files as a result of the Agency’s
discriminatory denial of her request for reasonable accommodation. Thus, the Agency found
expunging Complainant’s official personnel file was not an appropriate form of make whole
relief.

Further, the Agency found Complainant’s request of an apology and discipline of her
supervisors was beyond the Agency’s scope of authority. However, the Agency noted as an
element of corrective action, the final decision suggested that the Agency consider appropriate
disciplinary action against the named management officials.

On appeal, Complainant states she disagrees with the total award amount of back pay awarded
and the restoration of only 46 hours of annual leave and 30 hours of sick leave. Complainant
requests $47,797.93 for back pay, benefits, annual, and sick leave for the period of February
27, 2012, to September 19, 2012. Complainant claims that she spoke to her first level
supervisor on the telephone on February 27, 2012, and informed her supervisor that she had
been diagnosed with epilepsy and asked to telework from home until she was able to return to
the office. Complainant claims she was told she needed to get specific medical documentation
from her doctor and give the information to the HR Office and request a reasonable
accommodation through them. Complainant states she then contacted HR and proceeded to
provide information to HR regarding her medical condition and requested reasonable
accommodation. Complainant claims that she is entitled to back pay and benefits retroactive to
February 27, 2012, because if her supervisor had approved her request to telework fulltime
over the telephone within two hours, like she approved the comparative’s request, she would
have been working as of February 27, 2012, and would not have lost wages and benefits.
Complainant claims that on February 27, 2012, her supervisor gave her an overview of a
detailed process for submitting a request for a reasonable accommodation through the HR
Office, which she stated delayed her in submitting her request for reasonable accommodation.

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Complainant also stated that she was requesting nonpecuniary damages in the amount of
$288,000.00 for undo stress, depression, anxiety, severe migraines, nausea, upset stomach,
vomiting, emotional well-being, humiliation, intimidation, difficulty sleeping, loss of sleep,
damaged reputation, strained family relations, marital strain, loss of enjoyment of life, weight
gain, and low self-esteem. Complainant provides a medical statement from Eagle’s Landing
Family Practice dated August 14, 2014, a statement from her husband dated May 22, 2014,
and a statement from her mother dated August 22, 2014. Complainant also provides further
detail in her brief regarding the harm she suffered as a result of the Agency’s actions.

Additionally, Complainant requests past and future pecuniary damages in the amount of
$12,000.00 for past, present, and ongoing future medical treatment to include FEDVIP
insurance premiums paid out of pocket and non-sufficient fund charges due to being out of
work, medical bills, prescriptions, medical miles driven, and lost hours from her current job.
Complainant provides medical bill receipts, pharmacy receipts, and bank statements. In
addition, Complainant provides electronic mail messages to the supervisor on her new job and
leave slips submitted to her new supervisor, and a doctor’s note regarding her absence from
work in July 2014.

In response to Complainant’s appeal, the Agency argues that Complainant should not be
granted her requested amount of back pay and lost benefits. First, the Agency states
Complainant did not present sufficient evidence that she was forced to take leave because of
the Agency’s actions. Second, the Agency also argues that Complainant’s proffered date range
from February 27, 2012, to September 19, 2012, is inconsistent with the record. Third, the
Agency states the time and attendance records do not support her requested back pay or leave.
Fourth, the Agency argues Complainant has not shown a nexus between her annual, sick, or
other leave usage and the Agency’s actions.

Alternatively, the Agency states that if Complainant is entitled to back pay or reimbursement
of leave or other benefits, it should be for the period of May 21, 2012, the date Complainant
informed management of her need for an accommodation, to September 19, 2012, the date she
returned to the office with an approved arrangement. The Agency notes that documentation
indicates Complainant used 604 hours of LWOP, and no sick or annual leave between May 21,
2012, and September 19, 2012.

The Agency acknowledges Complainant provided some medical bill receipts, pharmacy
receipts, and bank statements on appeal. However, the Agency states the documentation
provided does not demonstrate a connection between the expenses incurred and the Agency’s
actions. The Agency also argues Complainant failed to present sufficient evidence regarding
the severity and duration of the harm. The Agency claims that some of the medical conditions
Complainant has sought pecuniary damages for were pre-existing conditions that affected her
health before she submitted her request for reasonable accommodation.

The Agency argues against any increase in nonpecuniary damages.

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

At the outset, we note that Complainant does not challenge the definition of the issues
addressed by the Agency. Complainant does not challenge the Agency’s finding of race and
disability discrimination with regard to the Agency’s failure to accommodate Complainant’s
disability and those findings are AFFIRMED herein. In addition, Complainant does not
challenge the finding of no discrimination with regard to her reprisal and hostile work
environment claims. The Commission has the discretion to review only those issues
specifically raised in an appeal. Accordingly, we will not address the finding of discrimination
with regard to the failure to accommodate or the finding of no discrimination with regard to the
reprisal and hostile work environment claims in this decision. This decision will address
Complainant’s challenge to the remedies awarded by the Agency.

Nonpecuniary damages

When discrimination is found, the agency must provide a complainant with a remedy that
constitutes full, make-whole relief to restore her as nearly as possible to the position she 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); Complainant
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, 527 U.S. 212 (1999), the Supreme Court held that Congress afforded the
Commission the authority to award compensatory damages in the administrative process.

Nonpecuniary 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 Enforcement Guidance: Compensatory and Punitive Damages Available Under Section
102 of the Civil Rights Act of 1991, EEOC Notice No. 915.002, at II.A.2 (July 14, 1992)
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(Compensatory Damages Guidance). 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 Complainant v. Dep’t of
the Treasury, EEOC Appeal No. 01955789 (Aug. 29, 1997). The Commission notes that
nonpecuniary compensatory damages are designed to remedy the harm caused by the
discriminatory event rather than punish the agency for the discriminatory action. Further,
compensatory damages should not be “monstrously excessive” standing alone, should not be
the product of passion or prejudice, and should be consistent with the amounts awarded in
similar cases. See Complainant v. Dep’t of the Interior, EEOC Appeal No. 01961483 (Mar.
4, 1999) (citing Cyngar v, City of Chicago, 865 F.2d 827, 848 (7th Cir. 1989)). Where a
complainant’s emotional harm is due in part to personal difficulties, which were not caused or
exacerbated by the discriminatory conduct, the agency is liable only for the harm resulting
from the discriminatory conduct. See Compensatory Damages Guidance, at II, A.2.

At the outset, we note that on appeal Complainant provides an August 22, 2014 statement from
her mother which was dated after the Agency’s August 7, 2014 final decision on damages. In
addition, we note that Complainant also provided a letter dated August 14, 2014, from a
medical provider at the Eagles Landing Family Practice, which was also written after the
Agency’s decision on damages. We note that neither the statement from Complainant’s mother
nor the letter from the medical provider were provided to the Agency during the relevant
timeframe for submitting evidence in support of her damages request. Moreover, we note that
in her appeal brief, Complainant gives further detail regarding dates she suffered harm which
she previously did not provide and also alleges additional harm not previously described in her
March 22, 2014 Request for Relief and Damages. We note that Complainant’s appeal brief is
not an opportunity to submit additional evidence in support of her claim for damages. Further,
we note that as a general rule, no new evidence will be considered on appeal unless there is an
affirmative showing that the evidence was not reasonably available previously. See Equal
Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at
Ch. 9, § VI.A.3 (Aug. 5, 2015). Because Complainant did not make such a showing, we
decline to consider the new evidence submitted on appeal that was not part of the record when
the Agency made its decision on relief.
In the present case, Complainant established that she suffered physical and mental anguish as a
result of the Agency’s discriminatory actions. However, we find that not all of the pain,
suffering, and mental anguish that Complainant asserted can be attributed to the Agency’s
discriminatory actions. Specifically, we note that both Complainant and her husband provided
evidence that Complainant experienced more seizures after she filed her EEO complaint.
However, Complainant’s husband attributed this primarily to the stress of processing the EEO
complaint and the workplace environment, not the denial of her request for reasonable
accommodation. Complainant also linked the worsening of her condition to actions outside the
claims upon which she prevailed. Thus, we determine there was not sufficient evidence to
show that the discriminatory actions of the Agency, rather than the stress of work and the EEO
process, led to a worsening of Complainant’s condition. In addition, we note that Complainant
is not entitled to damages for the stress of the EEO process. Finally, we note that since
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Complainant did not prevail on her harassment claim, she is not entitled to damages on that
claim.

In order to establish an entitlement to compensatory damages, the burden is on a complainant
to submit evidence to show that the agency's discriminatory conduct directly or proximately
caused the losses for which damages are sought. See Complainant v. U.S. Postal Serv.,
EEOC Request No. 05980311 (February 26, 1999). After a thorough review of the record,
and given the severity, nature, and duration of distress experienced by Complainant as a direct
result of the discrimination, we find that the Agency’s award of $12,000.00 for her emotional
distress in nonpecuniary, compensatory damages is supported by the record. We find this
award is not motivated by passion or prejudice, not “monstrously excessive” standing alone,
and consistent with the amounts awarded in similar cases. Complainant v. Social Security
Administration, EEOC Appeal No. 0720080002 (August 12, 2011)(finding denial of
accommodation and awarding $12,000.00 in nonpecuniary damages based on testimony of
Complainant and her sisters showing Complainant felt depressed and helpless, withdrew from
normal activities, spent less time with family due to obsessing over Agency’s actions,
temporarily gave guardianship of her son to her sister-in-law, felt stressed, had high blood
pressure, suffered dizziness and headaches and noting pre-existing conditions); Mike G. v.
Department of Agriculture, EEOC Appeal No. 0120152027 (September 8, 2016)(finding
denial of reasonable accommodation which resulted in Complainant being unable to return to
work and awarding $12,000.00 in nonpecuniary damages where evidence established that
Complainant experienced exacerbation of his depression, anxiety, and post-traumatic stress
disorder, weight gain, diminished quality of life, a strain on his relationships, financial
difficulties, and sleeplessness).

Pecuniary Damages

Upon review we find that the Agency properly determined Complainant failed to provide any
documentary evidence to support her claim for past or future pecuniary damages. While
Complainant provided some evidence to support her claim for pecuniary damages on appeal,
we note this evidence was not submitted to the Agency prior to the issuance of its final decision
and we decline to consider this new evidence submitted on appeal. Thus, we find Complainant
is not entitled to any pecuniary damages.

Back Pay and Leave

Upon review, we find Complainant is entitled to back pay for the time period between May 21,
2012, and September 19, 2012. Despite Complainant’s claim that the back pay period should
begin February 27, 2012, we find Complainant did not persuasively show that the back pay
period should be prior to May 21, 2012. Additionally, we note Complainant did not challenge
the Agency’s back pay calculations using the dates of May 21, 2012 – September 19, 2012.
For the same reasons, we also reject Complainant’s request for leave prior to May 21, 2012.
Complainant has not otherwise challenged the Agency’s calculation of leave that should be
restored.
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We find that Complainant did not request any other remedies on appeal and we find that the
remedies ordered by the Agency will provide whole relief.

CONCLUSION

The Agency’s finding that Complainant was unlawfully subjected to race and disability
discrimination when the Agency failed to accommodate her disability and sent Complainant
home without pay is AFFIRMED. The Agency’s finding of no discrimination with regard to
her reprisal and hostile work environment claims is AFFIRMED. The decision on remedies is
AFFIRMED. The matter is REMANDED to the Agency for compliance with the Order
herein.

ORDER

To the extent it has not already done so, the Agency shall take the following actions:

1. Within 60 days of the date this decision is issued, the Agency shall pay Complainant
$12,000.00 in nonpecuniary, compensatory damages.

2. Within 60 days of the date this decision is issued, the Agency shall pay Complainant
$23,384.80 in back pay, benefit contributions, and interest from May 21, 2012,
through September 19, 2012.

3. Within 60 days of the date this decision is issued, the Agency shall restore 46 hours of
annual leave and 30 hours of sick leave.

4. Within 180 days of the date this decision is issued, the Agency shall provide training to
the responsible management officials regarding their responsibilities under Title VII of
the Civil Rights Act and the Rehabilitation Act of 1973.

5. Within 60 days of the date this decision is issued, the Agency shall consider taking
disciplinary action against the responsible management officials. The Agency shall
report its decision to the Commission and specify what, if any, action was taken. If the
Agency decides not to take disciplinary action, then it shall set forth the reasons for its
decision not to impose discipline.

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

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POSTING ORDER (G1016)

The Agency is ordered to post at its Atlanta, Georgia facility copies of the attached notice.
Copies of the notice, after being signed by the Agency's duly authorized representative, shall
be posted both in hard copy and electronic format by the Agency within 30 calendar days of
the date this decision was issued, and shall remain posted for 60 consecutive days, in
conspicuous places, including all places where notices to employees are customarily posted.
The Agency shall take reasonable steps to ensure that said notices are not altered, defaced, or
covered by any other material. The original signed notice is to be submitted to the Compliance
Officer at the address cited in the paragraph entitled "Implementation of the Commission's
Decision," within 10 calendar days of the expiration of the posting period.

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:
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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 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 (R0610)

This is a decision requiring the Agency to continue its administrative processing of your
complaint. However, if you wish to file a civil action, you have the right to file such action in
an appropriate United States District Court within ninety (90) calendar days from the date that
you receive this decision. 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 filed your
appeal with the Commission. 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. 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
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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

January 12, 2017
Date