0120160902
01-17-2018
Delfina Y.,1 Complainant, v. James N. Mattis, Secretary, Department of Defense (Defense Commissary Agency), Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Delfina Y.,1
Complainant,
v.
James N. Mattis,
Secretary,
Department of Defense
(Defense Commissary Agency),
Agency.
Appeal No. 0120160902
Agency No. DECA-00001-2011
DECISION
On December 28, 2015, 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 November 30, 2015 final decision concerning her entitlement to compensatory damages with respect to her equal employment opportunity (EEO) complaint alleging 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.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Store Associate, GS-3, at the Commissary at Robin's Air Force Base.
On or around August 25, 2010, Complainant told her non-supervisory coworker and union steward that a male supply technician (CW2) had been sexually harassing her for the past year. Complainant alleged that CW2 consistently made inappropriate comments to her about sex, asked her for sexual favors in the form of oral sex, and asked to come to her house to have sex with her. Additionally, CW2 allegedly touched her buttocks two or three times a day. Complainant stated that this conduct was offensive to her and she told him "no" and to "stop" after every comment and every time he touched her. The union steward told Complainant to report the harassment to the Store Administrator, but Complainant stated that she was afraid to report the harassment to the administrator because he was always warning her that she was a probationary employee and could be fired.
On or around August 30, 2010, the union steward told the Store Administrator that Complainant said she was being sexually harassment by CW2, and shared the details Complainant had provided. In September 2010, the Store Administrator was informed by another employee that CW2 was harassing her as well. Complainant stated that on September 10 or 11, 2010, the Store Administrator told her that he knew that she believed CW2 was sexually harassing her. Complainant confirmed that CW2 was sexually harassing her, and asked the administrator to talk to CW2 and requested that they be separated.
Complainant alleged the Store Administrator told her that they could not be separated. Complainant said that CW2 continued to harass Complainant. Complainant stated that on September 17, 2010, CW2 heard Complainant say that she was hungry and he made a reference again to oral sex when he told her, "I want to eat something too, but you won't let me." Additionally, Complainant stated that on September 18, 2010, while she was in the warehouse, CW2 made a comment about her backing her buttocks up to him. When the Store Administrator spoke to CW2 about the alleged harassment, he denied the claims.
Based on these events, Complainant contacted the EEO Counselor. On November 8, 2011, Complainant filed a formal EEO complaint alleging that the Agency discriminated against her on the basis of sex (female) when CW2 sexually harassed her on a continuous basis starting in June 2009.
At the conclusion of the investigation into the claim, the Agency provided Complainant with a copy of the report of investigation and notice of her right to request a hearing before an EEOC Administrative Judge (AJ). Complainant requested a hearing, but the AJ denied the hearing request. The AJ remanded the complaint to the Agency, and the Agency issued a final decision pursuant to 29 C.F.R. � 1614.110(b). The decision concluded that Complainant failed to show that the Agency subjected her to discrimination as alleged.
Complainant appealed the Agency's final decision. In EEOC Appeal No. 0120130331 (May 29, 2015), the Commission reversed the Agency's final decision. We found that Complainant established that she was subjected to a pattern of unwelcome verbal and physical conduct based on her sex which created a hostile work environment. The decision also noted that CW2's conduct was not isolated to her alone, and that other women in the facility had complained about him as well. Finally, the decision addressed the Agency's liability for the actions of CW2. The decision found that the Agency was placed on notice of CW2's sexual harassment of Complainant on August 30, 2010, and the Agency was not aware of the harassment before this date. Once the Agency became aware of the harassment, the decision held that it failed to act promptly or effectively when management failed to separate Complainant and CW2 after it learned of the allegations of sexual harassment. Therefore, we concluded that the Agency was liable for any acts of harassment that occurred after it was put on notice of the harassment, and Complainant was entitled to establish a claim for compensatory damages for that harassment.
As remedy, among other things, the decision ordered the Agency to conduct a supplemental investigation to determine Complainant's entitlement to compensatory damages under Title VII. By letter dated October 28, 2015, the Agency wrote to Complainant asking her to provide evidence regarding her entitlement to compensatory damages. The letter provided information to Complainant regarding the type of evidence she needed to provide for the Agency to evaluate her claim for pecuniary and non-pecuniary damages. Complainant responded to the Agency's request on November 3, 2015. In response, Complainant signed the October 28, 2015 letter with the following note: "I have no more to add I'm completely emotional, strained, & mentally drained. Please see complainant file. Thanks."
On November 30, 2015, the Agency issued a final decision addressing its compliance with the Commission's decision in EEOC Appeal No. 0120130331. As to Complainant's entitlement to compensatory damages, the Agency stated that it had conducted a supplemental investigation pertaining to her entitlement to compensatory damages. After a review of the documents Complainant provided and current case law, the Agency determined that an award of $35,000 was appropriate. In EEOC Compliance No. 0620150608, the Agency provided the EEOC Compliance Officer with a copy of the check issued to Complainant for $35,000.
This appeal followed. On appeal, Complainant stated that $35,000 was not fair and that she feels that she is entitled to $140,000. Complainant provided no other support for her statement. The Agency asked that the Commission affirm its award of $35,000.
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).
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.
In compliance with the Commission's decision in EEOC Appeal No. 0120130331, the Agency asked Complainant to provide specific evidence and information pertaining to her claim for compensatory damages as related to the harassment she experienced after August 30, 2010. In response, Complainant only stated that she had no more to add. Upon review of the record, we find that Complainant provided limited evidence regarding the harm she experienced due to the harassment after August 30, 2010. As such, we discern no basis to grant Complainant's request to modify the Agency's award of $35,000 in compensatory damages. Further, as noted above, the Agency has already provided the Commission with evidence that it has paid the award of compensatory damages to Complainant. As such, we conclude there is no further action required of the Agency in the matter at hand.
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.
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 (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 (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
January 17, 2018
__________________
Date
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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