In Stephens v. Dept. of Housing and Urban Development, Appeal No. 01A53933 (March 24, 2006), the EEOC’s Office of Federal Operations (OFO) modified HUD’s damages award to include the entitlement of $2,289.26 for credit card interest accrued as a result of the complainant being terminated.

Gloria Stephens worked as a Housing Specialist for the agency’s Camden, New Jersey facility. Ms. Stephens suffered from severe bronchial asthma, chronic sinusitis, and chronic rhinitis for over 30 years. In 1999, HUD reorganized and the program that Ms. Stephens worked for moved to Philadelphia. On March 22, 1999, Ms. Stephens requested a reasonable accommodation, asking to remain at the Camden facility because a transfer to Philadelphia would endanger her health due to the diesel fumes from buses, and the long distance she would have to walk from the bus stop to her workplace. In support of her request to remain in New Jersey, Ms. Stephens submitted a letter from her physician indicating that poor air quality, heavy air pollution and allergens, and excessive walking could affect her ability to breathe.

On May 25, 1999, Ms. Stephens requested a three-month leave of absence for the purpose of receiving medical treatment. The next day, the agency requested additional information regarding the reason for taking this leave. On May 28, 1999, the agency denied Ms. Stephens’ request for accommodation. Six days later, on June 3, 1999, HUD denied Ms. Stephens’ request for a leave of absence. Ms. Stephens filed an EEO complaint alleging that the agency discriminated against her on the basis of her disability by denying her requests, which forced her to retire effective June 1, 1999.

On November 26, 2002, HUD issued a final agency decision finding that it had discriminated against Ms. Stephens. In addition, HUD awarded Ms. Stephens reinstatement, converted her AWOL to sick leave, offered to place her in a position at the Camden office, and awarded her back pay with interest plus benefits. When Ms. Stephens later declined the offer of reinstatement, HUD adjusted her retirement date from June 1, 1999, to December 2, 2002, and awarded Ms. Stephens back pay for the period from June 1, 1999, to her retirement date.

HUD also offered Ms. Stephens compensatory damages based upon appropriate supporting documentation. When discrimination is found, an agency must provide the complainant with a remedy that constitutes full, make-whole relief; make-whole relief attempts to place the employee in the position she would have occupied had the discrimination never occurred. Pecuniary damages are out-of-pocket expenses that are incurred as a result of the agency’s unlawful actions and include things such as medical expenses, moving expenses, job-hunting expenses, and psychiatric expenses. Non-pecuniary damages compensate employees for intangible harm, such as mental and emotional distress, pain, suffering, mental anguish, and loss of enjoyment of life.

After considering Ms. Stephens’ compensatory damages documentation, the agency issued a decision on April 8, 2005, in which it awarded Ms. Stephens $55,000 in non-pecuniary compensatory damages, but no pecuniary damages. Nonetheless, Ms. Stephens was not satisfied with the agency’s damages award and appealed the damages decision. In her appeal, Ms. Stephens requested $300,000 in non-pecuniary damages, stating that she suffered mental and emotional distress when the agency denied her accommodation and leave requests, and then delayed the processing of her EEO complaint. In addition, Ms. Stephens claimed that she had accrued $65,000 in credit card debt as a result of the financial impact of her forced retirement, and was seeking $22,892.61 in interest paid on her credit cards. Ms. Stephens was also seeking compensation for loss of her future earning capacity.

On appeal, the EEOC’s OFO held that the non-pecuniary compensatory damages awarded by the agency were an appropriate amount and cited to prior cases in which appellants received similar awards. The OFO did not award compensation for loss of future earnings capacity, stating that her claim that she would have kept working at an increased rate of pay was too speculative to justify relief. Regarding Ms. Stephens’ claim for credit card interest, the OFO noted that Ms. Stephens did not submit documentation to give any indication of what was purchased with the credit cards during the time that she was retired. However, the OFO did find that Ms. Stephens incurred a significant amount of debt in the time period following her forced retirement and determined that it would award her $2,289.26, which was 10 percent of the credit card interest requested.

To receive payment for pecuniary compensatory damages, it is necessary to provide sufficient documentation to establish that the damages were caused by the agency’s unlawful actions. If Ms. Stephens had provided information regarding the items purchased with her credit cards after her forced retirement, she would have likely been awarded more of the interest incurred because of these charges. Because she did not submit this information, the OFO was unable to justify any additional payment of interest.

Therefore, federal employees should save any receipts or proof of payments related to their damages claim. In addition, as noted by this decision, if the employee claims interest accrued in credit card balances, it would be wise to provide credit card statements reflecting the nature of the purchases involved.

This information is provided by the attorneys at Passman & Kaplan, P.C., a law firm dedicated to the representation of federal employees worldwide. For more information on Passman & Kaplan, P.C., go to http://www.passmanandkaplan.com .

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