Takako Y.,1 Complainant,v.Steven T. Mnuchin, Secretary, Department of the Treasury, Agency.

Equal Employment Opportunity Commission

Oct 18, 2018

0120182250 (E.E.O.C. Oct. 18, 2018)

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

Takako Y.,1
Complainant,

v.

Steven T. Mnuchin,
Secretary,
Department of the Treasury,
Agency.

Appeal No. 0120182250

Hearing No. 560-2012-00064X

Agency No. IRS-11-0039-F

DECISION

Complainant filed an appeal with the Equal Employment Opportunity Commission (EEOC or
Commission), pursuant to 29 C.F.R. § 1614.403(a), from an Agency final decision, dated May 9,
2018, concerning an 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. The Commission accepts the appeal in accordance with 29
C.F.R. § 1614.405.

BACKGROUND

During the relevant time, Complainant worked as a Correspondence Examining Technician for
the Agency’s Compliance Services, Wage and Investment, located in Kansas City, Missouri.

Believing that she was subjected to unlawful discrimination based on her disability (attention
deficit hyperactivity disorder, ADHD), Complainant filed a formal EEO complaint on December
10, 2010, regarding harassment and the denial of a reasonable accommodation.

After an 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

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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Opportunity Commission Administrative Judge (AJ). After initially requesting a hearing,
Complainant subsequently withdrew her request. The AJ remanded the case to the Agency for a
final decision.

In its May 8, 2013 final decision, the Agency found no discrimination. With respect to the
harassment claims, the Agency determined that Complainant failed to show the criticisms of her
performance were not legitimate. Further, the Agency reasoned that the alleged events did not
rise to the level of a hostile work environment. Regarding the alleged denial of reasonable
accommodations, the Agency concluded that Complainant was not qualified for the position
because she could not perform the essential functions. Complainant appealed the decision to the
Commission.

In our prior decision, we found that the Agency failed to provide Complainant with a reasonable
accommodation. See Michelle G. v. Dep’t of Treasury, EEOC Appeal No. 0120132463 (May 13,
2016), request for req. for reconsideration denied, EEOC Request No. 0520160422 (Jan.24,
2017). The Commission found that, regarding the many accommodations suggested by
Complainant, the Agency failed to establish that providing any of them would cause an undue
hardship. See id. Moreover, the Opportunity to Improve letters and negative performance
feedback were found to be the direct result of the Agency’s failure to provide such
accommodation. See id. The Agency was also found to have violated the Rehabilitation Act
when it failed to maintain Complainant’s confidential medical information in a separate medical
file. See id. The Commission declined to find that the Agency subjected Complainant to
harassment based on her disability. In addition to removing particular documents from
Complainant’s personnel file, the Commission ordered the Agency to conduct a supplemental
investigation regarding Complainant’s entitlement to compensatory damages and issue a new
decision. See id.

In compliance with the Order, the Agency issued a decision on May 9, 2018, granting
Complainant $45,000.00 in non-pecuniary damages and $1,007 in pecuniary damages. The
Agency reasoned that Complainant was not entitled to mileage reimbursement, purportedly due
to the denial of an Alternative Work Schedule, because she failed to provide evidence showing
the costs actually incurred. With respect to the $1,438.20 Complainant spent on psychiatric bills,
the Agency noted that, in addition to the discrimination, the other contributing factor was the
declining health and death of Complainant’s son. Consequently, the Agency determined it was
responsible for 70% of cost of Complainant’s mental health treatment ($1,007.00). Citing prior
Commission cases where individuals were denied a reasonable accommodation, the Agency
concluded that $45,000.00 in non-pecuniary damages was appropriate.

Complainant filed the instant appeal. She did not submit an appeal brief, but instead provided
over 500 pages of documents, including the request for damages she provided to the Agency.

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ANALYSIS AND FINDINGS

Standard of Review

As this is an appeal from a decision issued without a hearing, pursuant to 29 C.F.R.
§ 1614.110(b), the Agency's decision is subject to de novo review by the Commission. 29 C.F.R.
§ 1614.405(a). See Equal Employment Opportunity Management Directive for 29 C.F.R. Part
1614, 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”).

Compensatory Damages

When discrimination is found, the agency must provide the 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); 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, 527 U.S. 212
(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)

The request for damages Complainant presented to the Agency included approximately $400,000
in pecuniary damages and $350,000 in non-pecuniary damages.

As an initial matter, we note that many of the remedies sought by Complainant are the result of
alleged harassment and her purportedly related early retirement.2 For example, Complainant
requests both back pay and front pay, citing the “lost salary and diminished benefits due to early

2 According to Complainant she retired in March 2012, due to the Agency’s harassment. As
noted above, the Commission did not find Complainant to be subjected to discriminatory
harassment. Moreover, her early retirement/constructive discharge claim occurred more than one
year after the instant complaint was filed.
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retirement . . . due to workplace harassment.” According to Complainant she lost two years of
salary when she retired prior to the full-retirement age of sixty-five. She also seeks the
restoration of leave, Leave Without Pay (19.75) and Absence Without Leave (3.25 hours), she
was forced to take due to the harassment. Similarly, Complainant requests the replacement of
borrowed advanced sick leave (240 hours) used for outpatient therapy to treat her anxiety and
stress related to the hostile work environment. Complainant asserts that the harassment, which
resulted in her early retirement, also caused her to enter a reverse mortgage. She also seeks the
lost TSP matching funds, for the years 2012 through 2014. Our finding of discrimination,
however, was limited to the denial of a reasonable accommodation between October 2008 and
June 2010, and the violation of the Rehabilitation Act’s confidentiality provisions.
Consequently, we shall not consider Complainant’s request for damages related to her failed
harassment claim and decision to retire in 2012.

Complainant does not expressly challenge the Agency’s 30% reduction in psychiatric bills, due
to non-discriminatory factors. She fails to meet her burden in establishing that the Agency’s
award is erroneous. Consequently, the Agency’s award of $1,007.00 in pecuniary damages is
affirmed.

While the request for remedies, by Complainant’s representative, contains a chart seeking the
cost of mileage, resulting from the denial of AWS as an accommodation, there is no supporting
documentation. The record does not contain evidence that Complainant incurred such expenses.
Moreover, we note the chart includes dates beyond the finding of discrimination. Therefore, we
decline to award Complainant these requested pecuniary damages.

Similarly, Complainant fails to provide evidence in support of her claim for reimbursement for
medications. According to Complainant, she was prescribed Vyvanse in January 2011, for
ADHD. Complainant herself, acknowledges that her diagnosis was made “many years before
starting work at [the Agency].” Complainant contends, however, that she is entitled to the cost
spent on the prescription ($5,188.00) since 2011. The record does not contain documentation of
such expense, and therefore we shall not award such reimbursement.

With respect to non-pecuniary damages, Complainant describes working, for two years, under a
“cloud” – fearing a threat of a reduction-in-grade or removal based on her lowered performance
appraisal and negative performance feedback. She experienced feelings of shame, humiliation,
embarrassment, loss of pride and self-esteem. According to Complainant, she stopped
interacting with friends and spent weekends in bed instead of participating in activities. Her
husband explains Complainant no longer wanted to spend time with others, including him, and
had sleepless nights. Complainant’s sister states Complainant became isolated and depressed.

The Agency awarded Complainant $45,000.00 in non-pecuniary damages. The Commission
finds the award to be insufficient, as an award of $60,000.00 has been awarded in similar
circumstances. See Complainant v. Dep't of Transp., EEOC Appeal No. 0720140022 (Sept. 16,
2015) (Complainant awarded $60,000.00 where Agency's failure to accommodate resulted in
depression, anxiety, sleeplessness, and exacerbation of existing symptoms); Complainant v. Soc.
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Sec. Admin., EEOC Appeal No. 0720130013 (Aug. 14, 2014) (Complainant awarded $60,000.00
where Agency's failure to accommodate resulted in exacerbation of post-traumatic stress
disorder, depression, stress, and elevated blood pressure.)

The Commission finds that this amount takes into account the severity of the harm suffered, and
is consistent with prior Commission precedent. Finally, the Commission finds this award is not
“monstrously excessive” standing alone, is not the product of passion or prejudice, and is
consistent with the amount awarded in similar cases. See Jackson v. U.S. Postal Serv., EEOC
Appeal No. 01972555 (Apr. 15, 1999) (citing Cygnar v. City of Chicago, 865 F. 2d 827, 848 (7th
Cir. 1989)).

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 order. The matter
is REMANDED for compliance with the Order below.

ORDER

Within sixty (60) days of the date this decision is issued, the Agency shall:

(1) Pay Complainant $1,007.00 in pecuniary compensatory damages; and

(2) Pay Complainant $60,000.00 in non-pecuniary compensatory damages.

The Agency is further directed to submit a report of compliance, as provided in the statement
below.

IMPLEMENTATION OF THE COMMISSION’S DECISION (K0618)
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.
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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 (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).
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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 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

October 18, 2018
Date