0120103491
02-03-2011
Winzoir V. Durr, Complainant, v. Timothy F. Geithner, Secretary, Department of the Treasury, (Internal Revenue Service), Agency.
Winzoir V. Durr,
Complainant,
v.
Timothy F. Geithner,
Secretary,
Department of the Treasury,
(Internal Revenue Service),
Agency.
Appeal No. 0120103491
Agency No. EEODFS-06-0203-F
DECISION
On August 16, 2010, Complainant filed an appeal from the July 12, 2010
final Agency decision (FAD2) concerning his entitlement to compensatory
damages incurred as a result of the Agency’s unlawful 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 deems the appeal timely and accepts it pursuant to 29
C.F.R. § 1614.405(a).
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked
as an Information Technology (IT) Specialist with the Agency’s Test
Integration Section, in the Systems Integration Branch facility in
Lanham, Maryland. Complainant was diagnosed with prostate cancer.
On March 22, 2006, Complainant asked to work four hours at home and to
take four hours of sick leave between March 27, 2006, and May 26, 2006.
Complainant's supervisor (S1) approved Complainant’s sick leave request
and stated that he needed more documentation for his request to work
from home. On March 23, 2006, Complainant submitted documentation from
his doctor stating that Complainant would begin eight weeks of radiation
therapy on March 27, 2006. On March 29, 2006 Complainant again requested
reasonable accommodation for his cancer therapy and noted that treatment
was expected to last for two years. The Agency referred the request to
a Federal Occupational Health doctor who recommended that Complainant be
allowed to work at home and use sick leave as a reasonable accommodation.
In a May 25, 2006 email, S1 stated that Complainant’s submitted
documentation indicated that Complainant’s treatment would only last
eight weeks and that Complainant needed to provide more documentation
for any additional treatments. Complainant submitted a letter from
his doctor dated May 26, 2006, stating that his cancer treatments were
expected to last for 24 months.
On or about June 2, 2006, S1 denied Complainant’s request to work
from home as a reasonable accommodation. Complainant decided to not
ask for reconsideration of his original accommodation request and,
instead, requested four hours of sick leave and four hours of office
work each day during his cancer treatments citing an Executive Order
giving veterans approved absences for medical treatments. S1 requested
medical documentation in support of Complainant's request for sick leave.
Complainant referred him to the original medical documentation that
he provided. Beginning August 14, 2006, management charged Complainant
as Absent without Leave (AWOL) instead of granting sick leave.
On July 12, 2006, Complainant filed an EEO complaint alleging that the
Agency discriminated against him on the bases of race (African-American),
sex (male), religion (Christian - Church of God by Faith), disability,
and age (57) when:
1. On or about May 12, 2006, S1 told him to report to staff meetings
five to ten minutes early and before other team members;
2. On or about June 2, 2006, management denied his reasonable
accommodation request for four hours of sick leave and four hours work
at home during his cancer treatment period;
3. On or about June 2, 2006, management did not give him timely
notice of the status of the denial of his reasonable accommodation
request;
4. On or about June 2, 2006, and thereafter, management did not allow
him four hours of sick leave during his cancer treatment period; and,
5. On August 14, 2006, and thereafter, management charged him with
AWOL instead of granting sick leave.
At the conclusion of the investigation (ROI), the Agency provided
Complainant with a copy of the report of investigation (ROI) and notice
of his right to request a hearing before an EEOC Administrative Judge
(AJ). In accordance with Complainant’s request, the Agency issued
a FAD pursuant to 29 C.F.R. § 1614.110(b). In the initial final
Agency decision (FAD1), the Agency found that Complainant is a qualified
individual with a disability, and that the Agency had failed to reasonably
accommodate Complainant when his request to work from home was delayed
and ultimately denied. FAD1 concluded, however, that the Agency was not
liable for the denial of Complainant’s request to use sick leave and
his subsequent AWOL charges because he did not request reconsideration
of his reasonable accommodation request, he withdrew his authorization
for the Agency to contact his doctor, and he did not provide additional
medical documentation.
As to relief, FAD1 ordered the Agency to: pay Complainant $4,000 in
compensatory damages; provide appropriate training on reasonable
accommodation for all managers in Complainant's office; provide
appropriate disciplinary action for the managers involved and, if no
action is taken, provide reasons for that decision; and, post a notice
of non-discrimination at all Agency Modernization and IT Services
(MITS) offices in the Washington D.C. commuting area. In addition,
FAD1 determined that Complainant had not been discriminated against on
the alleged bases as to the remaining allegations.
In Durr v. Dep’t of the Treasury, EEOC Appeal No. 0120080078 (Feb. 19,
2010), the Commission affirmed FAD1’s finding of no discrimination
as to claims (1), (4), and (5). As to Complainant’s reasonable
accommodation claims, the Commission affirmed the Agency’s finding
of discrimination as to the Agency’s delay and ultimate denial of a
reasonable accommodation to work from home. Further, the Commission found
that Complainant was continuing to request a reasonable accommodation
when he asked to have four hours of sick leave each day due to his
cancer treatments, even though he no longer used the words “reasonable
accommodation.” Additionally, the Commission found that the medical
documentation that Complainant initially provided was sufficient, as
it explained Complainant's diagnosis, prognosis, side effects of the
treatment, and an estimate that the treatments would last two years.
Accordingly, the Commission held that the Agency was also liable for
failing to reasonably accommodate Complainant by denying his requests
for sick leave and charging him with AWOL.
As to relief, the Commission ordered the Agency to: conduct a
supplemental investigation to determine the amount of compensatory
damages that Complainant was entitled to as a result of his denial of a
reasonable accommodation; compensate Complainant for all AWOL charges
that resulted from the denial of the reasonable accommodation and
remove the AWOL charges from all Agency records; provide training to all
managers responsible for denying Complainant's request for a reasonable
accommodation; and, to consider taking appropriate disciplinary action
against the responsible management officials.
After completing the supplemental investigation, the Agency issued a
second final Agency decision (FAD2) on July 12, 2010. Complainant had
requested $1,475,570 in compensatory damages. Complainant alleged that
the Agency’s discrimination forced him to forfeit all accrued sick
and annual leave and to retire four years earlier than he had planned.
As a result of his alleged forced early retirement, Complainant claimed
that he had to sell his house at a loss and incur bills that he is unable
to pay. Complainant submitted statements from his wife, sister-in-law,
a friend, and an acquaintance stating that because of the Agency’s
discrimination, Complainant has gone from being an outgoing and happy
person to a withdrawn, depressed person who is unable to relate to family
and friends and spends most of his time in bed.
FAD2 determined that, with the exception of a list of medications he
takes for depression, gastro-esophageal reflux disease (GERD) and anxiety,
there was no medical documentation and Complainant failed to submit any
receipts for medications or doctors bills associated with the treatment
of his medical conditions. Accordingly, FAD2 concluded that Complainant
was not entitled to pecuniary damages for medications or doctor visits.
Next, FAD2 determined that Complainant sought compensation for loss
of income from July 2007 for March 2010, compensation for the loss
in the sale of his house, moving and other expenses, and front pay
from April 2010 to October 2016. FAD2 found that the Commission’s
decision only ordered compensatory damages for the time Complainant was
denied reasonable accommodation and that Complainant failed to raise
constructive discharge allegations until now. Therefore, FAD2 found
that Complainant was not entitled to compensation for actions that
resulted from his voluntary retirement. Accordingly, after reviewing
the evidence submitted and relevant case law, FAD2 awarded Complainant
$40,000 in non-pecuniary damages.
CONTENTIONS ON APPEAL
On appeal, Complainant contends that the amount awarded by FAD2 is
inadequate. Complainant alleges that FAD2 did not give enough weight to
the evidence he provided. Additionally, Complainant maintains that he
submitted enough proof to support his request for relief. Accordingly,
Complainant requests that the Commission modify FAD2. The Agency requests
that the Commission affirm FAD2.
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 (EEO MD-110),
at 9-15 (Nov. 9, 1999) (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 do not include back pay, interest on back pay, or
any other type of equitable relief authorized by Title VII. 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. See Rivera v. Dep’t of the Navy, EEOC Appeal
No. 01934157 (July 22, 1994), request for reconsideration denied, EEOC
Request No. 05940927 (Dec. 11, 1995); EEOC’s Enforcement Guidance:
Compensatory and Punitive Damages Available Under Section 102 of the
Civil Rights Act of 1991, EEOC Notice No. 915.002 at 11 12, 14 (July
14, 1992). A complainant is required to provide objective evidence that
will allow an agency to assess the merits of her request for damages.
See Carle v. Dep’t of the Navy, EEOC Appeal No.01922369 (Jan. 5, 1993).
Pecuniary losses are out of pocket losses that occurred prior to the date
of resolution of the damage claim and those out of pocket losses that
are likely to occur after conciliation of the claim. Non pecuniary
losses are losses that are not subject to precise quantification,
i.e., emotional pain, suffering, inconvenience, mental anguish, loss of
enjoyment of life, injury to professional standing, injury to character
and reputation, injury to credit standing, and loss of health. See EEOC
Notice No. 915.002 at 10 (July 14, 1992).
The Commission applies the principle that “a tortfeasor takes its
victims as it finds them.” See Wallis v. U.S. Postal Serv., EEOC
Appeal No. 01950510 (Nov. 13, 1995) (quoting Williamson v. Handy
Button Mach. Co., 817 F.2d 1290, 1295 (7th Cir. 1987)). However,
the Commission also applies two exceptions to this general rule.
First, when a complainant has a pre existing condition, the Agency
is liable only for the additional harm or aggravation caused by the
discrimination. Second, if the complainant’s preexisting condition
inevitably would have worsened, the Agency is entitled to a reduction
in damages reflecting the extent to which the condition would have
worsened even absent the discrimination; the burden of proof is on
the Agency to establish the extent of this entitlement. Wallis,
EEOC Appeal No. 01950510 (citing Maurer v. United States, 668 F.2d 98
(2d Cir. 1981)); Finlay v. U.S. Postal Serv., EEOC Appeal No. 01942985
(April 29, 1997). The Commission notes, therefore, that Complainant is
entitled to recover damages only for injury, or additional injury, caused
by the discrimination. See Terrell v. Dep’t of Hous. & Urban Dev.,
EEOC Appeal No. 01961030 (Oct. 25, 1996); EEOC Notice No. N 915.002 at 12.
After establishing entitlement to an award of compensatory damages,
there is no precise formula for determining the amount of damages for
non pecuniary losses, except that the award should reflect the nature
and severity of the harm and the duration or expected duration of the
harm. See Loving v. Dep’t of the Treasury, EEOC Appeal No. 01955789
(Aug. 29, 1997). It should likewise be consistent with amounts awarded
in similar cases. See Hogeland v. Dep’t of Agric., EEOC Appeal
No. 01976440 (June 14, 1999). Moreover, the Commission points out that
non-pecuniary compensatory damages are designed to remedy a harm and
not to punish the Agency for its discriminatory actions. Furthermore,
compensatory damages should not be motivated by passion or prejudice
or “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 (March 4, 1999).
The Commission has held that evidence from a health care provider is
not a mandatory prerequisite for recovery of compensatory damages.
See Carpenter v. Dep’t of Agric., EEOC Appeal No. 01945652 (July 17,
1995). Courts also have held that “expert testimony ordinarily is
not required to ground money damages for mental anguish or emotional
distress.” See Wulf v. City of Wichita, 883 F.2d 842, 875 (10th
Cir. 1989). A complainant’s own testimony, along with the circumstances
of a particular case, can suffice to sustain his/her burden in this
regard. Nonetheless, 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 (April 18, 1996).
Pecuniary Damages
Upon review, the Commission agrees with the Agency and finds that
Complainant has failed to prove his entitlement to pecuniary damages.
Complainant’s claims for lost income and moving expenses are not
supported beyond Complainant’s own statements that the alleged harms
were caused by the Agency. Complainant claims that he was constructively
discharged. This claim was not part of his complaint, and the Commission
did not find constructive discharge. Further, Complainant states that as
a result of the Agency’s discrimination, he developed gastrointestinal
disorders and depression. In support, Complainant submitted a one-page
note from his physician listing three medications that Complainant alleges
have been prescribed as a result of the Agency’s discrimination.
Complainant failed, however, to establish any nexus between these
medications and the Agency’s discriminatory actions. Accordingly, the
Commission concludes that Complainant’s request for pecuniary damages
(for medical expenses, lost income, relocation expenses, and losses
related to the sale of his home) was properly denied, in that no nexus
between the alleged harm and the unlawful action has been established.
Non-pecuniary Damages
In the instant case, Complainant claims to have suffered emotional and
physical suffering due to the Agency’s actions. Complainant’s wife
states that after the Agency’s discrimination, Complainant became moody,
irritable, and lethargic; suffers from sleeplessness; and lies in bed
for days at a time, unmotivated to go out. Complainant’s sister-in-law
and friend submitted similar statements noting Complainant’s withdrawal
from family and friends and change in attitude.
In determining compensatory damages, the Commission strives to make
damage awards for emotional harm consistent with awards in similar
cases. Thus, taking into account the evidence of non-pecuniary damages
submitted by Complainant, the Commission finds the Agency’s award
of non-pecuniary compensatory damages in the amount of $40,000 to
be adequate. The Commission finds that this award takes into account
the nature of the discriminatory actions and the severity of the harm
suffered, and is consistent with prior Commission precedent. See Gray
v. Dep’t of Def., EEOC Appeal No. 0720080022 (Dec. 12, 2008) (Commission
awarded $40,000 in non-pecuniary damages to a complainant who changed from
a happy, caring person to becoming devastated, broken, and unable to get
out of bed after not being accommodated); Duncan v. Soc. Sec. Admin.,
EEOC Appeal No. 0120064557 (April 4, 2008) (Commission awarded $50,000
in non-pecuniary damages to Complainant who was not accommodated
and whose medical condition was exacerbated to the extent that she
had difficulty sleeping and was unable to perform household chores);
Chevis v. Dep’t of Agric., EEOC Appeal No. 01A50169 (March 31, 2005)
($40,000 in non-pecuniary damages for depression, insomnia, crying spells,
change in weight after failure to accommodate).
The Commission notes that this sum is meant to compensate Complainant for
the emotional distress he suffered, which was caused by the Agency’s
discriminatory actions. Finally, this amount meets the goals of not being
motivated by passion or prejudice, not being “monstrously excessive”
standing alone, and being consistent with the amounts awarded in similar
cases. See Ward-Jenkins v. Dep’t of Interior, EEOC Appeal No. 01961483
(March 4, 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 hereby
AFFIRMS the Agency's determination on compensatory damages. The Agency is
ORDERED to take action consistent with this decision and the Order below.
ORDER
The agency shall take the following remedial actions to the extent it
has not already provided the following relief:
1. Within 30 days from the date this decision becomes final, the Agency
shall pay complainant $40,000 in non-pecuniary, compensatory damages;
2. Within 30 days of the date this decision becomes final, the agency
shall: (a) compensate Complainant for all AWOL charges that resulted
from the denial of the reasonable accommodation: and (b) remove the AWOL
charges from all Agency records;
3. Within 180 days of the date this decision becomes final, the Agency
shall provide 8 hours of EEO training to all managers responsible for
denying Complainant's request for a reasonable accommodation, with a
focus on the Rehabilitation Act and the Agency’s duty to reasonably
accommodate individuals with disabilities;
4. The Agency shall consider taking appropriate disciplinary action
against the responsible management officials. The Commission does not
consider training to be disciplinary action. Within 60 days of the
date this decision becomes final, the Agency shall report its decision
to the Compliance Officer referenced herein. If the Agency decides to
take disciplinary action, it shall identify the action taken. If the
Agency decides not to take disciplinary action, it shall set forth the
reason(s) for its decision not to impose discipline. If any of the
responsible management officials have left the Agency's employment,
then the Agency shall furnish documentation of their departure date(s).
POSTING ORDER (G0610)
The Agency is ordered to post at all of its Modernization and IT Services
(MITS) offices in the Washington. D.C. commuting area facility copies of
the attached notice. Copies of the notice, after being signed by the
Agency's duly authorized representative, shall be posted by the Agency
within thirty (30) calendar days of the date this decision becomes final,
and shall remain posted for sixty (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 ten (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 (M0610)
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 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 9-18 (Nov. 9, 1999).
All requests and arguments must be submitted to the Director, Office of
Federal Operations, Equal Employment Opportunity Commission, P.O. Box
77960, Washington, DC 20013. 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 (S0610)
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. 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 (Z0610)
If you decide to file a civil action, and if you do not have or cannot
afford the services of an attorney, you may request from the Court that
the Court appoint an attorney to represent you and that the Court also
permit you to file the action without payment of fees, costs, or other
security. See Title VII of the Civil Rights Act of 1964, as amended,
42 U.S.C. § 2000e et seq.; the Rehabilitation Act of 1973, as amended,
29 U.S.C. §§ 791, 794(c). The grant or denial of the request is within
the sole discretion of the Court. Filing a request for an attorney with
the Court does not extend your time in which to file a civil action.
Both the request and the civil action must be filed within the time limits
as stated in the paragraph above (“Right to File A Civil Action”).
FOR THE COMMISSION:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
February 3, 2011
Date
2
0120103491
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120103491