01A23845
12-08-2003
Brenda D. Steed, Complainant, v. R.L. Brownlee, Acting Secretary, Department of the Army, Agency.
Brenda D. Steed v. Department of the Army
01A23845
December 8, 2003
.
Brenda D. Steed,
Complainant,
v.
R.L. Brownlee,
Acting Secretary,
Department of the Army,
Agency.
Appeal No. 01A23845
Agency No. 09710H0710
DECISION
Complainant timely initiated an appeal from a final agency decision (FAD)
concerning the amount of compensatory damages to which complainant was
entitled as a result of a finding of sexual harassment. The appeal is
accepted pursuant to 29 C.F.R. � 1614.405. For the following reasons,
the Commission affirms the agency's final order.
ISSUE
The issue on appeal is whether the agency properly determined that
complainant was entitled to payment of $11,968.72 in compensatory damages.
BACKGROUND
Complainant filed a formal complaint on November 20, 1997, alleging that
she was subjected to harassment by her supervisor, the Acting Branch
Chief (Chief), on the bases of race (White) and/or sex (female). At the
conclusion of the investigation, complainant was informed of her right to
request a hearing before an EEOC Administrative Judge or alternatively,
to receive a final decision by the agency. Complainant requested that
the agency issue a final decision.
In its FAD, the agency concluded that complainant failed to establish
her claim of harassment based on sex and/or race. In particular,
the agency found that complaint had not met her prima facie case of
race discrimination in that she failed to demonstrate that the alleged
harassment occurred because of her race. As to her claim of sexual
harassment, the agency found that complainant was not subjected to
unwelcome sexual conduct.
Complainant filed an appeal with the Commission, challenging the
agency's finding of no discrimination. In EEOC Appeal No. 01993047
(November 2, 2001), the Commission found that the agency was liable for
sexual harassment. The Commission further ordered the agency to conduct
a supplemental investigation into the question of whether complainant
should be awarded compensatory damages.
During the supplemental investigation, complainant asserted that she
was entitled to $26,380.29 in pecuniary damages: $2,470.50 for past
medical expenses, $1,800.00 for anticipated future medical expenses,
$193.00 in miscellaneous expenses, $22,109.71 for moving expenses; and
non-pecuniary damages of $390,000.00 plus $100.000.00 in punitive damages.
Complainant provided several sworn notarized statements from her sister,
friends and herself, which describe how the sexual harassment allegedly
ruined her life. Complainant alleged that she had to seek psychological
help, that she was unemployed for two years and she had to leave her
house and friends in Hawaii and move to a strange place.
The agency issued a second FAD on June 6, 2002, finding that complainant
was entitled to $11,968.72 in compensatory damages. Specifically,
the agency concluded that complainant was entitled to $1,968.72 in
past pecuniary damages from complainant's psychiatric treatment and
miscellaneous expenses; and $10,000.00 in non-pecuniary damages.
Complainant's claims for dermatology treatment, $153.00 worth of
miscellaneous expenses, and moving expenses were denied by the agency.
The agency concluded that complainant failed to established a nexus
between the agency's actions and her skin condition, and/or her moving
expenses. The agency further found that no evidence was provided showing
that the discriminatory actions prevented complainant from obtaining
subsequent employment, and that complainant's allegations of �loss of
wages and benefits� and �loss of credit/bad credit� are unsubstantiated.
On appeal, complainant contends, among other things, that she moved
from Hawaii not because of �lack of employment� but rather her �lack
of ability� to find work. Complainant contends that because of her
lack of self-esteem, lack of self-confidence, and a feeling of deep
depression directly caused by her being sexually harassed, she was
not able to perform well in interviews. Finally, complainant contends
that she should recover punitive damages, in the amount of $100,000.00,
because the agency acted with �malice and disregard, gross negligence,
and reckless indifference� after she complained about the harassment.
Complainant abandons her claims for $390,000.00 in non-pecuniary damages.
The agency stands on the record and requests that we affirm its final
decision.
ANALYSIS AND FINDINGS
Pecuniary Compensatory Damages
Complainant may be awarded damages for pecuniary losses which are directly
or proximately caused by the agency's discriminatory conduct. EEOC
Guidance: Compensatory and Punitive Damages Available Under Section 102
of the Civil Rights Act of 1991, EEOC Notice N-915.002 (July 14, 1992),
at 8. Pecuniary losses are out of pocket expenses that are incurred as a
result of the employer's unlawful action, including job-hunting expenses,
moving expenses, medical expenses, psychiatric expenses, physical
therapy expenses and other quantifiable out of pocket expenses. Id.
Past pecuniary losses are the losses that are incurred prior to the
resolution of a complaint via a finding of discrimination, an offer of
full relief, or a voluntary settlement, while future pecuniary losses are
those likely to occur after the resolution of the complaint. Id. at 8-9.
Benefits received by a complainant from a source collateral to the agency
may not be used to reduce the agency's liability for damages. See Finlay
v. United States Postal Service, EEOC Appeal No. 01942985 (Apr. 29, 1997).
The amount to be awarded for pecuniary losses can be determined
by receipts, records, bills, canceled checks, confirmation by
other individuals, or other proof of actual losses and expenses. To
recover damages, the complaining party must prove that the employer's
discriminatory act or conduct was the cause of his loss. EEOC Guidance:
Compensatory and Punitive Damages Available Under Section 102 of the
Civil Rights Act of 1991, EEOC Notice No. N 915.002 (July 14, 1992).
The critical question is whether the complaining party incurred the
pecuniary losses as a result of the employer's discriminatory action or
conduct. Id. We conclude that complainant failed to establish a nexus
between the harassment incident and her decision to move. We also find
that complainant failed to establish any nexus between her lack of ability
to find work and the harassment. The record reveals that complainant did
not lose her job as a result of the harassment, nor did the harassment
result in any tangible employment action. Complainant's medical evidence
did not support that complainant's mental condition precluded her from
finding a new job. Therefore, we find that complainant is not entitled
to moving expenses, nor front and back pay.
The record reveals that complainant claims past medical expenses, and that
the agency awarded $1,928.72. The record also reveals that on appeal,
complainant accepted that amount. Therefore, we will not address the
issue of past medical expenses.
Complainant also claims that she is entitled to future pecuniary
damages. In particular, complainant requested $1,800.00 for future
psychotherapy expenses. The record reveals that complainant's doctor
terminated complainant's treatment when complainant relocated to
California. The record contains no evidence that complainant needed
future treatment. It appears from the record that complainant never
resumed therapy during the past four years. Accordingly, we agree with
the agency that complainant is not entitled to any future pecuniary
damages.
Complainant further claims miscellaneous expenses for the amount
of $193.00. The record contain a $40.00 receipt for notarial
services; however, it did not contain evidence of the other amounts.
Complainant failed to proffer any evidence to support the amount
of $153.00. Therefore, we affirm the agency's decision to reimburse
complainant for the amount of $40.00 in miscellaneous expenses.
Punitive Damages
We note that complainant requested punitive damage; however, punitive
damages are not available to federal employees. See Jones v. Department
of Health and Human Services, EEO Request No. 05940377 (January 23, 1995),
citing Graham v. United States Postal Service, EEOC Request No. 05940132
(May 19, 1994); EEOC Guidance: Compensatory and Punitive Damages Available
Under Section 102 of the Civil Rights Act of 1991, EEOC Notice N-915.002
(July 14, 1992).
Non-Pecuniary Compensatory Damages
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.
Loving v. Department of the Treasury, EEOC Appeal No. 01955789 (August 29,
1997); Rountree v. Department of Agriculture, EEOC Appeal No. 01941906
(July 7, 1995). We note that for a proper award of nonpecuniary damages,
the amount of the award should not be "monstrously" excessive standing
alone, should not be the product of passion or prejudice, and should be
consistent with the amount awarded in similar cases. See Ward-Jenkins
v. Department of the Interior, EEOC Appeal No. 01961483 (March 4, 1999).
The record reveals that the discrimination occurred between July 23,
1997, and August 27, 1997, and entailed inappropriate comments and
gestures of a sexual nature. After complainant reported the matter on
September 2, 1997, she was not subjected to any other sexual harassment.
Complainant provided medical documentation showing that she experienced
depression, anxiety, anger, and low self-esteem. Complainant alleged
that the sexual harassment took a physical and emotional toll on her,
causing her to be exhausted by the end of the workday. The Commission
finds that the agency's award of $10,000.00 in non-pecuniary damages
was appropriate. This amount takes into account the severity of the harm
suffered, and is consistent with prior Commission precedent. See Mullins
v. United States Postal Service, EEOC Appeal No. 01954362 (May 22, 1997)
($10,0000.00 award where complainant's depression and other emotional and
mental disorders were direct result of sexual harassment and reprisal);
Jones v. Department of Defense, EEOC Appeal No. 01973551 (April 14, 2000)
($9,000.00 award based on complainant's statements of the interference
with family and marital relations, anxiety, sleeplessness and exhaustion
resulting from the agency's discrimination); Guerra v. United States
Postal Service, EEOC Appeal No. 01982149 (July 19, 2000) ($10,000.00
award for physical and emotional harm in the form of exacerbation of
physical impairments, and stress caused by a supervisor's inappropriate
sexual behavior, solicitation and continued harassment).
Therefore, after careful review of the record, including arguments and
evidence not specifically discussed in this decision, the Commission
AFFIRMS the agency's final order and directs the agency to take the
corrective action in accordance with this decision and the Order below.
ORDER
The agency is ordered to take the following remedial action:
Within 60 days of the date this decision becomes final and only to the
extent it has not already done so, the agency shall pay to complainant
$11,968.72 in compensatory damages.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0501)
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 19848,
Washington, D.C. 20036. 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 (M0701)
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), 9-18 (November 9, 1999). All requests
and arguments must be submitted to the Director, Office of Federal
Operations, Equal Employment Opportunity Commission, P.O. Box 19848,
Washington, D.C. 20036. 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 (S0900)
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 (Z1199)
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 that the Court appoint
an attorney to represent you and that the Court 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 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
December 8, 2003
___________________________
Date