Victor S.v.U.S. Postal Serv.

Equal Employment Opportunity Commission

May 8, 2019

EEOC Appeal No. 0120181004 (E.E.O.C. May. 8, 2019)

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

Victor S.,1
Complainant,

v.

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

Appeal No. 0120181004

Appeal No. 0120160739

Hearing No. 451-2015-00038X

Agency No. 4G-780-0085-14

DECISION

On January 16, 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
December 18, 2017, final decision concerning his entitlement to compensatory damages with
respect to his equal employment opportunity (EEO) complaint alleging employment
discrimination in violation of Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act),
as amended, 29 U.S.C. § 791 et seq

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a full-time Mail
Processing Clerk at the Agency’s Waco, Texas Processing and Distribution Facility (P&DF).

On February 4, 2014, Complainant filed an EEO complaint alleging that the Agency
discriminated against him on the bases of disability and reprisal for prior protected EEO activity
(requesting a reasonable accommodation) when:

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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1. on November 30, 2013, he was placed into a Letter Carrier position outside of his
medical restrictions; and

2. on December 11, 2013, he was told that there was no work available and sent
home.

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 Equal Employment
Opportunity Commission Administrative Judge (AJ). Complainant timely requested a hearing
but subsequently withdrew his request. Consequently, the Agency issued a final decision
pursuant to 29 C.F.R. § 1614.110(b). The decision concluded that Complainant failed to prove
that the Agency subjected him to discrimination as alleged.

Complainant appealed the Agency’s decision. In EEOC Appeal No. 0120160739 (Oct. 18,
2017), the Commission found that the Agency denied Complainant a reasonable accommodation
when it involuntarily reassigned him to a position that he was unable to perform because of his
medical restrictions in November 2013. Although the Waco P&DF was closing, the decision
held that the Agency had not shown that it would have constituted undue hardship to reassign
Complainant to a position that he could perform within his known medical restrictions. In
addition, we found that Complainant had established that he was subjected to discrimination
based on disability and reprisal when he was sent home and told that there was no work available
on December 11, 2013.

Pursuant to the Commission’s decision, the Agency conducted a supplemental investigation
regarding Complainant’s entitlement to compensatory damages. On October 25, 2017, the
Agency sent Complainant an interrogatory asking him questions relevant to his support for his
claim for compensatory damages. Complainant filled out the interrogatory indicating that he
should be compensated for back pay and benefits, have his retirement adjusted, reimburse him
for health insurance premiums, and legal fees. He stated that he had depression issues after
being fired at the age of 55. He noted that he was terminated in December 2013 and the
following month, he went to the doctor because he was lightheaded and dizzy. A month and a
half after the termination, blood tests showed that his blood glucose was extremely high and was
referred to a diabetes and endocrine center where he was diagnosed with type II diabetes. He
averred that he has no family history of diabetes and is not overweight. He believed the stress
and depression caused his diabetes. To this end, Complainant provided articles linking stress to
diabetes. He added that he experienced high blood pressure and insomnia due to the stress. He
noted that he began seeing a licensed professional counselor (Counselor) for his depression and
stress since the termination.

Complainant also indicated that he had to sell his “forever home” following the termination.
They placed the home on the market in May 2014 and sold it in November 2014. Complainant
stated that his wife was diagnosed with cancer and has since passed away.

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Complainant provided his prescription reports for two years from 2016 - 2017, noting that that is
all that he could obtain. His prior physician and the Counselor have retired and were not
available for statements. He noted that his current physician would not provide a statement on
his prior treatment by another physician. He has also seen a podiatrist, a physician for his wrist,
and another physician for his shoulder. Complainant included documentation stating that he has
been approved for Ambien from September 2017 to October 31, 2018. He included his
prescription cost report from January 1, 2016 through November 30, 2017, which totaled
$3,745.88. The report provided a list of medications and Complainant’s portion of the cost of
the medications.

The Agency issued a final decision regarding Complainant’s entitlement to compensatory
damages. The Agency found that Complainant had provided evidence that he incurred out-of-
pocket expenses for antidepressants and insomnia in the amount of $29.49. The Agency denied
Complainant’s request to reimburse his 2016 and 2017 copay for prescriptions because these
expenses incurred over three to four years after the discriminatory actions occurred. Further, the
Agency noted that Complainant failed to provide contemporaneous medical documentation
identifying any medical conditions in connection with the Agency’s discriminatory actions. As
such, the Agency denied Complainant’s request for $ 3,745.88 in medical expenses.

The Agency turned to Complainant’s claim for nonpecuniary damages. Complainant indicated
that he was harmed by the Agency’s discriminatory actions which caused ongoing stress,
depression, and insomnia. The Agency, however, noted that Complainant experienced the loss
of his wife due to cancer in 2015, which would have also contributed to his stress and
depression. Based on the nature and severity of the case, the Agency concluded that
Complainant was entitled to an award in the amount of $10,000 in nonpecuniary damages. As
such, in total, the Agency held that Complainant was entitled to $10,029.49 in compensatory
damages.

This appeal followed. On appeal, Complainant, through his attorney, argues that that the Agency
failed to adequately compensate Complainant for the pain and suffering he experienced due to
the Agency’s discriminatory actions. Complainant claims he was required to sell his “forever”
home and become a renter, a loss he took particularly hard because his wife had to spend the last
period of her life in the rental home. As such, Complainant claims he is entitled to $250,000 in
nonpecuniary damages and $3,745.88 in medical expenses.2

2 Complainant also argued that the Commission’s decision in EEOC Appeal No. 0120160739
failed to award him back pay. However, the instant appeal only deals with Complainant’s
entitlement to compensatory damages. Issues concerning a back pay award should have been
raised by Complainant in a timely request for reconsideration of the Commission’s decision in
Appeal No. 0120160739.
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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”).

Pursuant to section 102(a) of the Civil Rights Act of 1991, a complainant who establishes
unlawful discrimination or harassment 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. § 19814(b)(3).

To receive an award of compensatory damages, a complainant must demonstrate that she has
been harmed as a result of the Agency's discriminatory action; the extent, nature, and severity of
the harm; and the duration or expected duration of the harm. Rivera v. Dep't of the Navy, EEOC
Appeal No. 01934157 (July 22, 1994), req. for recons. denied, EEOC Request No. 05940927
(Dec. 11, 1995); Compensatory and Punitive Damages Available Under Section 102 of the Civil
Rights Act of 1991, EEOC Notice No. 915.002 (July 14, 1992), at 11-12, 14. Although damage
awards for emotional harm can greatly vary, and there are no definitive rules governing amounts
to be awarded, compensatory damage awards must be limited to the amounts necessary to
compensate the complainant for actual harm, even if that harm is intangible. Id. at 7. It should
take into account the severity of the harm and the length of the time the injured party has
suffered from the harm. See Carpenter v. Dep't of Agric., EEOC Appeal No. 01945652 (July 17,
1995). The absence of supporting evidence may affect the amount of damages deemed
appropriate in specific cases. See Lawrence v. U.S. Postal Serv., EEOC Appeal No. 01952288
(Apr. 18, 1996).

Pecuniary Damages

As to Complainant’s claim for pecuniary damages, the Agency denied Complainant’s request for
reimbursement of costs associated with the purchase of medication. We note that Complainant
provided a copy of a bill for $ 3,745.88. However, the documentation only listed the names of
the medication, the dosage, and the out-of-pocket expenses Complainant paid.
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Complainant provided no evidence or explanation for each of the prescriptions. As such, we find
no connection between the prescriptions and the Agency’s discriminatory actions. Finding no
nexus, we discern no reason to disturb the Agency’s denial of these expenses. As such, we
affirm the Agency’s award of $29.49 for antidepressants and Ambien related to the depression
and insomnia experienced due to the Agency’s discriminatory actions.

Non-Pecuniary Damages

Next, we turn to the Agency’s award of nonpecuniary damages. In Carle v. Dep't of the Navy,
EEOC Appeal No. 01922369 (Jan. 5, 1993), the Commission explained that “objective evidence”
of non-pecuniary damages could include a statement by a complainant explaining how she was
affected by the discrimination. A complainant could also submit documentation of medical or
psychiatric treatment related to the effects of the discrimination. Id.

Upon review of the record, we find that there is no question that Complainant experienced harm
as a result of the Agency’s discriminatory actions in 2013. He indicated that he has suffered
ongoing stress, depression, and insomnia. He also describes how he and his wife had to sell their
home,3 and the hurt he felt that his wife was not able to spend her final days in their “forever”
home. However, beyond conclusory statements, Complainant provides little detail concerning
the psychological or physical harm he suffered due to the discrimination.

Complainant has asserted that the stress and depression caused him to develop type II diabetes.
However, Complainant failed to provide any evidence that his diabetes was in fact caused by the
stress resulting from discrimination. He provided articles and website information without
producing evidence that demonstrated that, in his particular case, there was a nexus between the
discriminatory actions and his diagnosis of diabetes.

Upon review, we find that the Agency’s determination that Complainant was entitled to $10,000
in compensatory damages is sufficient to address the harm suffered by Complainant and is
consistent with the Commission’s decisions in comparable cases. See, e.g., Desire M. v. U.S.
Postal Serv., EEOC Appeal No. 0120150824 (Apr. 21, 2017) (awarding $10,000 where the
Agency denied Complainant a reasonable accommodation and Complainant showed she suffered
anxiety, anger, & depression, withdrew from normal activities, & was unable to enjoy life);
Complainant v. Dep’t of the Treasury, EEOC Appeal No.0120133266 (Feb. 11, 2015), request
for recon. denied, EEOC Request No. 0520150280 (July 30, 2015) (awarding $10,000 in
nonpecuniary damages for Complainant who was denied a reasonable accommodation &
subjected to reprisal and who suffered exacerbation of multiple sclerosis, causing pain,
sleeplessness, crying spells, & muscle spasms. Complainant also experienced desperation,
humiliation, depression, anguish, anxiety, & despair); Mike G. v. Dep’t of Agric., EEOC Appeal
No. 0120152027 (Sept. 8, 2016) (where Complainant demonstrated that he experienced
exacerbation of his depression, anxiety, & post-traumatic stress disorder, as well as weight gain,
diminished quality of life, a strain on his relationships & sleeplessness due to the Agency’s

3 Complainant does not allege that he took a financial loss in the sale of the home.
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failure to provide him with a reasonable accommodation he was awarded $10,000). In reaching
this conclusion, we have considered that the death of Complainant’s wife in 2015 was an
significant independent contributing factor to his mental state.

CONCLUSION

Based on a thorough review of the record and the contentions on appeal, including those not
specifically addressed herein, we AFFIRM the Agency’s final decision. We shall REMAND the
matter to the Agency to take the remedial action below.

ORDER (C0618)
The Agency is ordered, to the extent it has not done so already, to pay Complainant $10,027.49
in compensatory damages within 30 days of the date this decision is issued.
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). 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.
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. 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.
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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 (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.
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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
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

May 8, 2019
Date