0720080003
02-26-2009
Eileen D. Maeso, Complainant, v. Janet Napolitano, Secretary, Department of Homeland Security (United States Coast Guard), Agency.
Eileen D. Maeso,
Complainant,
v.
Janet Napolitano,
Secretary,
Department of Homeland Security
(United States Coast Guard),
Agency.
Appeal No. 0720080003
Hearing No. 430-2007-00006X
Agency No. HS-05-USCG-001194-CHRTRAC
DECISION
Following its October 19, 2007 final order, the agency filed a timely
appeal concerning complainant's 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. The Commission accepts the appeal pursuant to 29 C.F.R. �
1614.405(a). For the following reasons, the Commission REVERSES the
agency's final order.
BACKGROUND
At the time of events giving rise to this complaint, complainant worked as
an instructional systems specialist at the agency's Division of Training
in Yorktown, Virginia. On April 19, 2006, complainant filed an EEO
complaint alleging that she was discriminated against on the bases of
sex (female), religion (Jewish), and in reprisal for prior protected
EEO activity when the agency subjected her to a continuing pattern of
harassment. The alleged harassing conduct included removing complainant
from projects; removing complainant from a leadership role; suspending
complainant's computer privileges; moving complainant's workstation;
and downgrading complainant's performance evaluation.
At the conclusion of the investigation, complainant was provided with a
copy of the report of investigation and notice of her right to request
a hearing before an EEOC Administrative Judge (AJ). Complainant timely
requested a hearing, and the AJ held a hearing on May 2 and 3, 2007. On
September 10, 2007, the AJ issued a decision finding that complainant was
subjected to unlawful harassment on the bases of religion and reprisal.
The AJ ordered the following relief:
(1) The Agency shall restore to Complainant all leave taken by Complainant
from November 2005 until the present, as a result of either the harassment
or the litigation of this matter.
(2) The Agency shall afford EEO training regarding Title VII to the
responsible management official in this matter.
(3) The Agency shall post a notice of the finding of discrimination at
its facility in Yorktown, Virginia.
(4) The Agency shall tender to Complainant non-pecuniary
compensatory damages in the amount of
$100,000.00.
(5) The Agency shall tender to Complainant attorney's fees
and costs in the amount of
$87,088.58.
On October 19, 2007, the agency issued a final order rejecting the AJ's
decision and simultaneously appealing the matter to the Commission.
In its brief, the agency sets forth that it is appealing the AJ's award
of $100,000.00 in compensatory damages and the AJ's order requiring the
agency to restore leave to complainant.
CONTENTIONS ON APPEAL
On appeal, the agency argues that complainant should not receive more
than $30,000.00 in compensatory damages because complainant did not
provide any documentation demonstrating that she suffered physical
harm because of the harassment; complainant failed to show that she was
unable to work during the relevant time period because of the harassment;
complainant failed to show that the injuries she suffered were long-term
or debilitating; complainant only suffered from situational depression
and mild panic attacks at work that were caused by her interaction with
her harasser; and complainant was only prescribed anti-anxiety medication
for situational depression. The agency further argues that the AJ's
award of restoration of leave is improper because there is no evidence
that complainant took leave because of the harassment.
In response, complainant contends that her testimony and the statements
of family members established that she has "been through hell" and
is entitled to $100,000.00 in compensatory damages because she has
experienced panic attacks, stomach ailments, familial strains, anger,
moodiness, and a loss of self-esteem because of the harassment.
Complainant contends that the AJ's compensatory damages award is
consistent with previous Commission cases. Complainant further
contends that the AJ's award of leave should be upheld because the
award constitutes equitable relief that is within the AJ's discretion.
In addition, complainant, through her attorney, asserts that complainant
should be provided with an opportunity to provide the agency with
"evidence of the dates on which such leave was taken and how the use
of that leave time related to the agency's unlawful discriminatory
practices."
ANALYSIS AND FINDINGS
Pursuant to 29 C.F.R. � 1614.405(a), all post-hearing factual findings by
an AJ will be upheld if supported by substantial evidence in the record.
Substantial evidence is defined as "such relevant evidence as a reasonable
mind might accept as adequate to support a conclusion." Universal
Camera Corp. v. National Labor Relations Board, 340 U.S. 474, 477 (1951)
(citation omitted). A finding regarding whether or not discriminatory
intent existed is a factual finding. See Pullman-Standard Co. v. Swint,
456 U.S. 273, 293 (1982). An AJ's conclusions of law are subject to a
de novo standard of review, whether or not a hearing was held.
An AJ's credibility determination based on the demeanor of a witness or
on the tone of voice of a witness will be accepted unless documents or
other objective evidence so contradicts the testimony or the testimony so
lacks in credibility that a reasonable fact finder would not credit it.
See EEOC Management Directive 110, Chapter 9, � VI.B. (November 9, 1999).
Non-Pecuniary Compensatory Damages
On appeal, the agency addresses the AJ's award to complainant of $100,000
in non-pecuniary compensatory damages and restoration of complainant's
leave; therefore, we will restrict our appellate review of damages to
these particular remedies.
Regarding the AJ's award of non-pecuniary compensatory damages, we
note that pursuant to section 102(a) of the Civil Rights Act of 1991,
a complainant who establishes her claim of unlawful discrimination may
also receive compensatory damages for non-pecuniary losses (e.g., pain and
suffering, mental anguish). 42 U.S.C. � 1981 a(b)(3). In addressing the
question of compensatory damages, an AJ may conclude that a complainant
is entitled to an award of non-pecuniary damages to compensate her
for the intangible losses suffered as a result of the discriminatory
conduct. These can include, but are not limited to, emotional pain and
suffering, inconvenience, mental anguish, loss of enjoyment of life,
injury to character and reputation and loss of faith. The Supreme Court
has held that the Commission has the authority to award compensatory
damages in the federal sector EEO process. See West v. Gibson, 527
U.S. 212 (1999).1 We note that for a proper award of non-pecuniary
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) (citing Cygnar v. City of Chicago, 865 F.2d 848 (7th
Cir. 1989)).
In this case, the Commission finds that the AJ properly determined that
complainant established a causal nexus between the alleged non-pecuniary
harm and the discrimination. Therefore, we will now review whether
the amount of the AJ's non-pecuniary compensatory damages award was
appropriate.
The AJ based her award of $100,000.00 in non-pecuniary damages largely
on complainant's credible testimony regarding the emotional impact of
the harassment. In particular, complainant testified that she experienced
the following because of the harassment:
I've been through hell. It's affected my family life. It's
affected me emotionally, obviously, because I cry at
the drop of a hat. I have stomach problems. My doctor is
talking about she needs to do a scope to find out if I have an
ulcer. I've gained a tremendous amount of weight. I've gone
up three dress sizes. I'm constantly stressed out. I don't
sleep well. It's just affected my entire life. I had to go on
anti-anxiety medication because I was having anxiety attacks for
the first time in my life. I'd come on base and 1 couldn't
breathe. My heart would be beating and it's been horrible. All of
my peers that I was friends with have been turned against
me. My coworkers have been turned against me. My customers
have been turned against me. It's affected me professionally
as well. It's ruined my reputation I've always been somebody
who has been very successful and takes pride in my work and
this has just really - - it's killing me. It's just not right.
Hearing Transcript at 32, 33 (complainant's testimony).
Complainant also submitted statements from friends and family members
who stated that complainant exhibited signs of depression, exhaustion,
sleeplessness, lack of self-esteem, stomach ailments, nervousness, and
tearfulness because of the harassment. Further, complainant's physician
reported that complainant suffered from tension headaches, situational
depression/anxiety, and mild panic attacks because of the hostile work
environment.
The agency contends that complainant's compensatory damages award should
be reduced because she did not prove that she suffered from physical
symptoms. Complainant provided ample testimony that she suffered a host
of significant emotional and social impacts for well over a year, as well
as physical symptoms such as stomach ailments. Further, we reject the
agency's argument that complainant's compensatory damages award should
be reduced since she did not prove she was unable to work and suffered
only situational depression. In doing so, we determine that the agency
selectively ascribes greater value to specific harms not suffered by
complainant while improperly ignoring the totality of the serious social
and emotional harm complainant endured.
Based on the foregoing, the Commission finds that complainant is entitled
to non-pecuniary damages in the amount of $100,000.00. We determine that
the AJ's award is supported by substantial evidence and consistent with
the amounts awarded in similar cases. See, e.g., Franklin v. United
States Postal Service, EEOC Appeal No. 07A00025 (January 10, 2001)
($150,000.00 awarded in non-pecuniary damages where discriminatory
constructive discharge resulted in extensive symptoms of emotional
distress, including withdrawal, acting gloomy, purposeless, depression,
inability to find comparable work at comparable salary, marital strain
leading to divorce, humiliation, embarrassment, loss of self-esteem and
shame, but no medical evidence of diagnosis or treatment for depression.);
Kelly v. Department of Veteran Affairs, EEOC Appeal No. 01951729 (July
29, 1998) ($100,000.00 awarded where complainant was subjected to hostile
work environment that caused her to develop significant levels of anxiety,
nervousness and depression, which were manifested by nightmares, cognitive
inefficiencies, periods of tearfulness, and suicidal ideation). Finally,
we determine that 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.
Restoration of Leave
The AJ found that complainant is entitled to the requested reimbursement
of all leave taken as a result of the harassment or in order to pursue
complainant's EEO complaint. The agency argues on appeal that complainant
is not entitled to a restoration of leave because there is no evidence
that complainant took leave because of the harassment. However, we note
that the Commission has held that a successful complainant is entitled to
reimbursement for sick leave taken as a result of unlawful discrimination.
See Harris v. Department of the Air Force, EEOC Request No. 05901142
(January 11, 1991); Whiting v. ACTION, EEOC Request No. 05900093 (June
27, 1990). If complainant can show that her sick leave was taken because
of the agency's unlawful actions and document her claim, complainant
would be entitled to restoration of sick leave. In this case, the agency
improperly failed to afford complainant the opportunity to prove that she
used leave because of the unlawful harassment. See Meagher v. Department
of Defense, EEOC Appeal No. 01923706 (May 20, 1993). Thus, complainant
is now entitled to prove her entitlement to restoration of leave.
CONCLUSION
Accordingly, the agency's final order is reversed, and this matter
remanded for further processing in accordance with this decision and
the Order below.
ORDER
The agency is ordered to take the following remedial action within sixty
(60) days from the date this decision becomes final:
1. The Agency shall tender to complainant non-pecuniary compensatory
damages in the amount of $100,000.00.
2. The agency shall take corrective, curative, and preventive action
to ensure that harassment and discrimination does not recur, including,
but not limited to providing training on EEO laws and regulations to the
responsible management official at the Yorktown, Virginia facility, with
particular emphasis on EEO regulations concerning harassment, reprisal,
and religious discrimination. Within thirty (30) calendar days of the
date the training is completed, the agency shall submit to the Compliance
Officer appropriate documentation evidencing completion of such training.
3. The agency shall consider taking appropriate disciplinary
action against the responsible management official, if he is still
employed by the agency. The Commission does not consider training to
be disciplinary action. The agency shall report its disciplinary
actions to the compliance officer with specificity. If the individual
has left the agency's employ, the agency shall furnish documentation of
his or her departure.
4. The Agency shall tender to complainant attorney's fees and costs
in the amount of $87,088.58. Additionally, the agency shall pay
complainant proven attorney's fees and costs associated with the
instant appeal of compensatory damages, in accordance with Order H0900
set below.
5. Within ten days from the date this decision becomes final,
the agency shall inform complainant by letter that she will
be afforded the opportunity to present evidence proving that
she is entitled to restoration of leave for leave taken
because of the unlawful harassment at issue. Complainant
shall be informed that she has thirty (30) days from the
date of her receipt of the agency's letter to produce this
documentation to the agency. Within thirty (30) days of the
agency's receipt of complainant's documentation, the agency
shall issue a final decision determining the amount, if any,
of leave that should be restored to complainant.
POSTING ORDER (G0900)
The agency is ordered to post at its Yorktown, Virginia 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.
ATTORNEY'S FEES (H0900)
If complainant has been represented by an attorney (as defined by
29 C.F.R. � 1614.501(e)(1)(iii)), he/she is entitled to an award of
reasonable attorney's fees incurred in the processing of the complaint.
29 C.F.R. � 1614.501(e). The award of attorney's fees shall be paid
by the agency. The attorney shall submit a verified statement of fees
to the agency -- not to the Equal Employment Opportunity Commission,
Office of Federal Operations -- within thirty (30) calendar days of this
decision becoming final. The agency shall then process the claim for
attorney's fees in accordance with 29 C.F.R. � 1614.501.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K1208)
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 (M1208)
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 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 (R0408)
This is a decision requiring the agency to continue its administrative
processing of your complaint. However, if you wish to file a civil
action, you have the right to file such action in an appropriate United
States District Court within ninety (90) calendar days from the date
that you receive this decision. In the alternative, you may file a
civil action after one hundred and eighty (180) calendar days of the date
you filed your complaint with the agency, or filed your appeal with the
Commission. 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. Filing a civil
action will terminate the administrative processing of your complaint.
RIGHT TO REQUEST COUNSEL (Z1008)
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 26, 2009_______________
Date
1 The particulars of what relief may be awarded, and what proof is
necessary to obtain non-pecuniary relief, are set forth in detail in
EEOC's Enforcement Guidance, Compensatory and Punitive Damages Available
Under Section 102 of the Civil Rights Act of 1991, Enforcement Guidance,
EEOC Notice No. 915.002 at pp. 12-13 (July 14, 1992) (Guidance). Briefly
stated, complainant must submit evidence to show that the agency's
discriminatory conduct directly or proximately caused the losses for which
damages are sought. Id. at 11-12, 14; Rivera v. Department of the Navy,
EEOC Appeal No. 01934157 (July 22, 1994) (the trier of fact should also
take into account the severity of the harm and the length of the time
that the injured party has suffered the harm). The amount awarded should
reflect the extent to which the agency's discriminatory action directly
or proximately caused harm to complainant and the extent to which other
factors may have played a part. Guidance at 11-12.
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0720080003
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0720080003
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