EEOC Appeal 2023004437

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Sector
P.O. Box 77960
Washington, DC 20013
Miquel G.,1
Complainant,
v.
Brooke Rollins,
Secretary,
Department of Agriculture,
Agency.
Appeal No. 2023004437
Agency No. FAS-2021-00449
DECISION
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
August 8, 2022, final decision concerning his equal employment opportunity (EEO)
complaint of 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 AFFIRM the Agency’s final
decision.
BACKGROUND
At the time of events giving rise to this complaint, Complainant was employed by
the Agency as a Foreign Service Trainee (FST), GS-12, at the Foreign Agricultural
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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Service (FAS) International Food Assistance Division (IFAD), Operations Branch,
in Washington D.C.
On September 16, 2021, Complainant filed an EEO complaint alleging the Agency
subjected him to discrimination and harassment (non-sexual) based on sex (male),
disability (associational-family member, with unspecified disability) and in reprisal
for prior protected EEO activity when management terminated his appointment,
withdrew him from the FST Program, and reassigned him to his 	former 	position
and 	subjected him to harassment by: (a) stating that he was a “tall man with a
deep and loud voice”; (b) questioning his commitment to the FAS, becoming a
Foreign Service Officer (FSO), and suggesting he consider career options outside
FAS; (c) remarking that he intimidated FSTs when reading the instructions for the
entrance examination because he had a loud and deep male voice; (d) responding to
his inquiry regarding what he had done wrong by stating that he was wrong for being
“a tall man with a deep and loud voice;” and (e) mocking him in front of other FSTs
during a weekly training session.
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 EEOC Administrative Judge, or a final decision from the agency. 	Complainant
requested a final agency decision. The Agency subsequently issued a final decision
pursuant to 29 C.F.R. § 1614.110(b), finding in favor of Complainant.
While the Agency, in its final decision, largely found no persuasive evidence to
support 	Complainant’s 	allegations 	of 	discrimination, 	it 	ultimately 	ruled 	in
Complainant’s favor on his claim of associational discrimination. Specifically, the
Agency determined that, although Complainant was not an individual with a
disability, he was subjected to discrimination because of his association with his
mother, an individual with a disability. The Agency concluded that, after learning
Complainant would require leave to care for his mother, management determined
that he was not a good fit for the Front Office and, on that basis, denied his
appointment, removed him from the FST Program, and reassigned him to his
previous GS-12 position as a Management Analyst, effective July 1, 2021.
To remedy the finding of discrimination, the Agency, in relevant part, ordered a
supplemental 	investigation 	into 	Complainant’s 	entitlement 	to 	back 	pay,
compensatory damages, and attorney’s fees.

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Complainant subsequently sought the following damages from the Agency: (1)
$17,192.35 in back pay; (2) $30,598.21 in past pecuniary compensatory damages for
apartment and car expenses that he would not have had to pay had he been permitted
to deploy as a FAS FSO; (3) $64,139.66 for future pecuniary compensatory damages
for lost future earnings; (4) $160,000.00 in nonpecuniary compensatory damages;
and (5) $21,250.00 in attorney’s fees.
After conducting the ordered supplemental investigation, the Agency determined
that Complainant failed to present evidence that he would have worked overseas and
been 	converted 	to 	the 	Foreign 	Service 	had 	it 	not 	been 	for 	the 	Agency’s
discriminatory conduct. As such, the Agency denied Complainant’s claim for
$30,598.21 in past pecuniary damages related to the costs that he incurred for an
apartment and a car. For the same reason, the Agency also denied Complainant’s
claim for $64,139.66 in future pecuniary damages for lost future earnings, as the
Agency rejected Complainant’s assertion that he had foregone more lucrative
opportunities in the private sector to remain a federal employee. As to back pay, the
Agency found that Complainant was only entitled to back pay for the period between
July 1, 2021, and April 20, 2022, reflecting the period when he was removed from
the FST Program and reassigned to his previous position.
Finally, the Agency awarded Complainant a total of $17,500.00 in nonpecuniary
compensatory damages, rather than the requested $160,000.00, after considering
Commission 	precedent 	involving 	comparable 	injuries. 	Complainant 	was 	also
awarded $21,250.00 in attorney’s fees.
The instant appeal followed.
ANALYSIS
As a general matter, when discrimination is found, an agency must provide a
complainant with a remedy that constitutes full, make-whole relief to restore the
complainant as nearly as possible to the position he 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); Alissa U. v. Dep’t of
the Interior, EEOC Appeal No. 2022000423 (Aug. 8, 2024), req. for recon. den.
EEOC Request No. 2024004771 (Dec. 10, 2024); Ervin P. v. Dep’t of Def., EEOC
Appeal No. 2023005253 (June 12, 2024).

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Back Pay
The purpose of a back pay award is to restore to Complainant the income she would
have otherwise earned but for the discrimination. See Albemarle Paper Co.; Davis
v. 	U.S. 	Postal 	Serv., 	EEOC 	Petition 	No. 	04900010 	(Nov. 	29, 	1990). 	The
Commission recognizes that precise measurement cannot always be used to remedy
the wrong inflicted and that the computation of back pay awards inherently involves
some speculation. Hanns v. U.S. Postal Serv., EEOC Petition No. 04960030 (Sept.
18, 1997). Nonetheless, uncertainties involved in a back pay determination should
be resolved against the Agency, which has already been found to have committed
the acts of discrimination. Id.; see also Kloock v. U.S. Postal Serv., EEOC Petition
No. 04A40012 (June 16, 2004).
While Complainant argues that the Agency improperly limited his back pay, we
ultimately agree with the Agency finding that Complainant failed to establish that,
absent his removal from the FST program, he would have successfully completed
the FST program and become an FSO. Indeed, the Agency avers on appeal that
Complainant’s admission into the FST program simply meant that he had the
opportunity to qualify for a position abroad as part of the FAS Foreign Service. That
did not mean, however, that he was part of the FAS Foreign Service or that his
selection 	was 	guaranteed. 	Moreover, 	the 	Agency 	emphasizes 	that 	following
Complainant’s removal from the FAS program, he simply moved back to his prior
position as a GS-12/5, Management Analyst, with no loss of pay or benefits. As
Complainant did not suffer any loss of pay or benefits, we decline to award him any
additional back pay beyond the Agency’s award.
Compensatory Damages
Compensatory damages are awarded to compensate a complaining party for losses
or 	suffering 	inflicted 	due 	to 	the 	discriminatory 	act 	or 	conduct. 	See 	EEOC
Management Directive -110 at Chapter 11, § VII (citing Carey v. Piphus, 435 U.S.
247, 254 (1978) (purpose of damages is to “compensate persons for injuries caused
by the deprivation of constitutional rights”)). A complainant who establishes his or
her claim of unlawful discrimination may receive, in addition to equitable remedies,
compensatory damages for past and future pecuniary losses (i.e., out of pocket
expenses) and nonpecuniary losses (e.g., pain and suffering, mental anguish). 42
U.S.C. § 1981a(b)(3).

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Pecuniary losses are out-of-pocket expenses that are incurred because of the
employer’s 	unlawful 	action, 	including 	moving 	expenses, 	medical 	expenses,
psychiatric expenses, physical therapy expenses, and other quantifiable out-of-
pocket expenses. See Enforcement Guidance: Compensatory and Punitive Damages
Available Under Section 102 of the Civil Rights Act, EEOC No. 915.002 (July 14,
1992) at 14. For claims seeking pecuniary damages, objective evidence should
include documentation of out-of-pocket expenses for all actual costs and an
explanation of the expense, e.g., medical billings, other costs associated with the
injury caused by the agency’s actions, and an explanation for the expenditure. Id. at
9.
As to Complainant’s claim for $30,598.21 in past pecuniary damages for apartment
and car expenses, based on his assertion that, had he been assigned overseas, he
would not have incurred this loss, we find that, as in George H. Kimura v. Dep’t of
Transp., EEOC Appeal No. 01996853 (Feb. 13, 2002), Complainant failed to present
competent 	evidence 	establishing 	his 	entitlement 	to 	these 	claimed 	pecuniary
damages. Instead, Complainant’s claim rests on speculation that he would have
become an FSO and received an overseas assignment. Accordingly, we find
Complainant’s claim is too speculative to warrant an award of past pecuniary
damages.
With respect to Complainant’s claim for $64,139.66 in future pecuniary damages for
loss of earning capacity, Complainant asserts that, in pursuit of his goal of becoming
an FSO, he did not take employment opportunities in the private sector as well as
promotions to GS-13 positions within the federal government. We find that this
claim must also be denied because Complainant failed to present expert testimony
or other competent evidence demonstrating that the claimed future economic losses
were reasonably certain to occur because of the Agency’s discrimination. Isabelle
G. v. Dep’t of Def., EEOC Appeal No. 2024002097 (Nov. 25, 2024).
As to Complainant’s request for additional nonpecuniary compensatory damages,
we note that such damages 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 Enforcement Guidance: Compensatory and
Punitive Damages Available under § 102 of the Civil Rights Act of 1991, EEOC
Notice No. 915.002 at 10 (July 14, 1992).

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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 Loving v. Dep’t of the Treas.,
EEOC Appeal 	No. 01955789 	(Aug. 29, 1997). Nonpecuniary, compensatory
damages are designed to remedy the harm caused by the discriminatory event rather
than to punish the Agency for the discriminatory action. Furthermore, compensatory
damages should not be motivated by passion or prejudice or be “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 (Mar. 4, 1999).
Evidence from a healthcare provider or other expert is not a mandatory prerequisite
for recovery of compensatory damages for emotional harm. See Lawrence v. U.S.
Postal Serv., EEOC Appeal No. 01952288 (Apr. 18, 1996) (citing Carle v. Dep’t of
the Navy, EEOC Appeal No. 01922369 (Jan. 5, 1993)). Objective evidence of
compensatory damages can include statements from Complainant concerning her or
his emotional pain or suffering, inconvenience, mental anguish, loss of enjoyment
of life, injury to professional standing, injury to character or reputation, injury to
credit standing, loss of health, and any other nonpecuniary losses that are incurred
because of the discriminatory conduct. Id.
Statements from others including family members, friends, healthcare providers, and
other counselors (including clergy) could address the outward manifestations or
physical consequences of emotional distress, including sleeplessness, anxiety, stress,
depression, marital strain, humiliation, emotional distress, loss of self-esteem,
excessive fatigue, or a nervous breakdown. Id. Complainant’s own testimony, along
with the circumstances of a particular case, can suffice to sustain her burden in this
regard. Id. The more inherently degrading or humiliating the defendant’s action is,
the more reasonable it is to infer that a person would suffer humiliation or distress
from that action. Id. The absence of supporting evidence, however, may affect the
amount of damages appropriate in specific cases. Id.
Complainant has the burden of proving the existence, nature, and severity of the
alleged emotional harm. Man H. v. Dep’t of Homeland Sec., EEOC Appeal No.
0120161218 (May 2, 2017). Complainant must also establish a causal relationship
between the alleged harm and the discrimination. Id. Absent such proof of harm and
causation, a complainant is not entitled to compensatory damages, even if there were
a finding of unlawful discrimination. Id.; Wilda M. v. U.S. Postal Serv., EEOC

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Appeal No. 0120141087 (Jan. 12, 2017) (awards for emotional harm are warranted
only if complainant establishes a sufficient causal connection between the agency’s
illegal actions and her injury).
With respect to Complainant’s claim for $160,000.00 in nonpecuniary damages, the
record reflects that by his own admission, Complainant met with the Employee
Assistance Program counselor on only one occasion and did not seek any additional
counseling 	or 	mental 	health 	treatment. 	Moreover, 	while 	statements 	from
Complainant’s family and friends support his claim that he experienced anguish,
frustration, 	and 	humiliation 	following 	removal 	from 	the 	program 	based 	on
discriminatory reasons, we find that the Agency’s award of $17,500.00 was
appropriate based on the nature, severity, and duration of the harm attributed to the
Agency’s discrimination, and it is consistent with similar Commission decisions.
See Ethan M. v. Dep’t of Agric., EEOC Appeal No. 0120170519 (Oct. 12, 2018)
(awarding ($15,000.00 in nonpecuniary compensatory damages where complainant
provided evidence from his family and friends of how he reacted to not receiving a
performance award; including feelings of shame, embarrassment, withdrawing from
family, friends, and activities, anxiety, sleep problems, and sadness); Complainant
v. Dep’t. of Justice, EEOC Appeal No. 0120142526 (July 26, 2016) (awarding
$15,000.00 in nonpecuniary damages for retaliatory harassment to Complainant who
experienced humiliation in front of coworkers, anxiety attacks, sleep problems,
withdrawal from family); Norte v. Dep’t of Energy, EEOC Appeal No. 01A24738
(Dec. 12, 2003) (awarding $15,000.00 in nonpecuniary damages for reprisal which
left Complainant feeling humiliated, demeaned, degraded, and had overwhelming
feelings of dread, foreboding, anxiety, sadness, helplessness, and hopelessness).2
CONCLUSION
Based 	on 	the 	foregoing, 	we 	AFFIRM 	the 	Agency’s 	final 	decision 	as 	to
Complainant’s entitlement to back pay, compensatory damages, and attorney’s fees.
2 We note that Complainant does not challenge the award of attorney’s fees on
appeal. We exercise our discretion to review only those issues specifically raised in
an appeal and will not address the award of attorney’s fees in this decision. See
EEOC Management Directive for 29 C.F.R. Part 1614, (MD-110), Chap. 9, § IV.A.
(Aug. 5, 2015).

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The Agency’s final decision regarding back pay, compensatory damages, and
attorney’s fees remains in place.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1125)
The Commission may, in its discretion, reconsider this appellate decision if
Complainant or the Agency submits a written request that contains arguments or
evidence that 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 for reconsideration must be filed with EEOC’s Office of Federal Sector
(OFS) within thirty (30) calendar days of receipt of this decision. 	If the party
requesting reconsideration elects to file a statement or brief in support of the request,
that 	statement 	or 	brief 	must 	be 	filed 	together 	with 	the 	request 	for
reconsideration. 	A party shall have twenty (20) calendar days from receipt of
another party’s request for reconsideration within 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).
Complainant should submit their request for reconsideration, and any statement or
brief in support of their request, via the EEOC Public Portal, which can be found at
https://publicportal.eeoc.gov/Portal/Login.aspx. 	Alternatively, Complainant can
submit their request and arguments to the Director, Office of Federal Sector, Equal
Employment Opportunity Commission, via regular mail addressed to P.O. Box
77960, Washington, DC 20013, or by certified mail addressed to 131 M Street, NE,
Washington, DC 20507. 	In the absence of a legible postmark, a complainant’s
request to reconsider shall be deemed timely filed if OFS receives it by mail within
five days of the expiration of the applicable filing period. See 29 C.F.R. § 1614.604.

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An agency’s request for reconsideration must be submitted in digital format via the
EEOC’s Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). Either
party’s request and/or statement or brief in opposition must also include proof of
service on the other party, unless Complainant files their request via the EEOC
Public Portal, in which case no proof of service is required.
Failure to file within the 30-day time period will result in dismissal of the party’s
request for reconsideration as untimely, unless extenuating circumstances prevented
the timely filing of the request. 	Any supporting documentation must be
submitted together with the 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(f).
COMPLAINANT’S RIGHT TO FILE A CIVIL ACTION (S0124)
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 their
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.

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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:
T. Gimbrere __________ 	Acting Director's signature
T. Gimbrere, Acting Director
Office of Federal Sector
September 15, 2026
Date