0120160638
05-31-2018
Enriqueta T.,1 Complainant, v. Robert L. Wilkie, Jr., Secretary, Department of Veterans Affairs, Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Enriqueta T.,1
Complainant,
v.
Robert L. Wilkie, Jr.,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 0120160638
Agency No. 200I07852014101442
DECISION
On November 18, 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 October 15, 2015 final decision concerning 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. For the following reasons, the Commission MODIFIES the Agency's final decision.
BACKGROUND
Introduction
At the time of events giving rise to this complaint, Complainant worked as a Food Service Worker at the Canteen Service at an Agency Medical Center in West Palm Beach, Florida. On March 13, 2014, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the bases of sex (female) and reprisal for prior protected EEO activity (reporting sexual harassment) when it subjected her to hostile work environment harassment (sexual and non-sexual) between September 2013 and June 2014. The harassing incidents included a male coworker (C1) massaging Complainant's neck, blowing in or sticking his tongue in Complainant's ear, making sexual comments consistently, and pressing against and gyrating behind Complainant. Further, following Complainant's allegations, the Agency reassigned Complainant to another work location, rather than C1. The Agency investigated the complaint.
Post EEO Investigation
Following the EEO investigation, the Agency provided Complainant with a copy of the report of investigation, and notice of the right to request a hearing before an Equal Employment Opportunity Commission Administrative Judge (AJ) or an immediate final agency decision. Complainant requested a hearing. However, as a sanction at the hearing stage, the assigned AJ remanded the matter to the Agency for an immediate decision. The Agency issued a final decision dated June 30, 2015.
The final decision found that C1 created a sexually-charged hostile work environment for Complainant and that Complainant expressed that C1's conduct was unwelcome and tried to stop it. Further, the decision found the Agency liable for sexual harassment, stating it failed to take effective remedial action despite gathering evidence substantiating Complainant's sexual harassment claims. Also, the decision found that the Agency retaliated against Complainant when management denied her request for a new tour of duty. The decision ordered remedial relief, including (1) offering Complainant the 10:30 a.m. to 5:00 p.m. tour of duty, with Saturdays off, (2) non-pecuniary and pecuniary compensatory damages to be awarded pending a supplemental investigation on the topic, (3) attorney's fees and costs pending verification, (4) eight hours of mandatory EEO training to the responsible management officials, (5) consideration of disciplinary action against the responsible management officials, and (6) a notice of the finding of discrimination.
Supplemental Investigation
Complainant's Statement
During the compensatory damages supplemental investigation, Complainant stated that she was humiliated and isolated. Complainant stated that she felt like she was "on punishment" because she was no longer given opportunities and coworkers avoided her. Complainant stated that she felt depressed, withdrawn from others and activities, had headaches due to stress, and felt "uncomfortable" at work because she still had to see the harasser and her chief no longer treated her the same as he did before. Complainant stated that she was very emotional so she started seeing an Agency doctor (P1). Complainant stated that she saw P1 once a week for three or four months, but then she was unable to see him due to finances. Complainant stated that she also saw a Psychotherapist (P2) once a week for two months, but had to stop due to financial concerns. (Complainant stated that she was a part-time employee so she did not have insurance.)
Complainant stated that she had to take over-the-counter medications, such as ibuprofen and BC Powder, four or five times a week because she would get stress headaches so often. Complainant stated that she would toss and turn at night thinking about the circumstances at work. She stated that the matter "broke" her and her condition has not improved. Complainant stated that she was "a happy-go-luck, bubbly person" and she became "moody and snappy." Complainant stated that she was "short-fused" at home with her two children and would want to be by herself. Complainant stated that she had feelings of hopelessness and lack of energy or desire to participate in activities with her children. Her relationship with her family, including her brother, is strained. Further, Complainant stated she no longer has interest in going to church or family events, and feels let down. (Complainant stated that she used to attend church every Sunday but has not been in over a year.) Complainant stated that she is not trusting with people, except her dad, uncle, and brother.
Agency's Response
In response, the Agency stated that Complainant failed to provide sufficient evidence to support an award of past pecuniary losses. The Agency stated that Complainant failed to mention that it promoted her into a full-time position and began cross-training her for other Canteen areas. Further, the Agency stated that Complainant failed to provide expert testimony or documentation from a medical expert or therapist showing a likelihood of future expenses. The Agency stated that Complainant only provided notes from five therapy sessions and from family and friends. The Agency stated that the witness statements appear to be written by Complainant and not the applicable witnesses because they contain similar language. The Agency stated that attorney's fees are inappropriate here because Complainant advised it of her legal counsel about April 15, 2015 and the FAD was issued June 30, 2015.
Investigative Record
Complainant provided an electronically-signed letter from a life-long friend (C2), stating that since December 2013, she witnessed Complainant crying for no reason and complaining of migraine headaches, chest pains, and stomach pains. C2 stated that Complainant had difficulty performing parental duties and she assisted Complainant's daughter with household chores so that Complainant could rest. C2 stated, during 2014 and 2015, Complainant became increasingly withdrawn. Further, Complainant provided an electronically-signed letter from her father (C3), in which he stated that he used to live with Complainant and witnessed her have mood swings, irritability, constant headaches, and withdraw from activities. C3 stated that Complainant used to be "outgoing," but she is not the same person she was when she began working at the Agency in 2013.
The record contains a letter, dated January 12, 2016, from P2, stating that Complainant was diagnosed with Major Depression, Panic Disorder, and Posttraumatic Stress Disorder (PTSD). The Psychotherapist stated that they are chronic conditions, and PTSD may be life-long. The record also includes Progress Notes for Complainant from P2 for February 3, 2015, March 12, 17, and 24, 2015, and April 2, 2015. In the notes, P2 stated that Complainant does not trust men and has difficulty tolerating attention from them, and has loss of appetite, insomnia, anxiety, low self-esteem, difficulty going to work, migraines, panic attacks, and is always "on edge" for fear of the harasser. P2 noted that a Psychiatrist prescribed Complainant Zoloft, Clonazepam, and Trazodone.
Post Supplemental Investigation
On October 15, 2015, the Agency issued a final decision awarding Complainant $25,000 in nonpecuniary, compensatory damages. The Agency stated that Complainant showed emotional distress for a four-month period of stress, anxiety, sleeplessness, and feelings of isolation. The instant appeal from Complainant followed.
Complainant stated that she experienced harm from harassment and retaliation for at least two years, rather than the several months the Agency alleged. Complainant stated that she attended psychotherapy from February 3, 2015 to April 2, 2015, when she exhausted EAP benefits, and then again as of November 2015, once she had insurance. Complainant requested $150,000 in nonpecuniary compensatory damages.
ANALYSIS AND FINDINGS
The issue before us is nonpecuniary, compensatory damages. The Commission notes that damage awards for emotional harm are difficult to determine and there are no definitive rules governing the amount to be awarded in given cases. In this regard, the Commission finds that a proper award must meet two goals: not be "monstrously excessive" standing alone and be consistent with awards made in similar cases. See Cygnar v. City of Chicago, 865 F.2d 827, 848 (7th Cir. 1989). Section 102(a) of the 1991 Civil Rights Act authorizes an award of compensatory damages for all post-act pecuniary losses, and for non-pecuniary losses, such as, but not limited to, emotional pain, suffering, inconvenience, mental anguish, loss of enjoyment of life, injury to character and reputation, and loss of health. To receive an award of compensatory damages, 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), request for reconsideration denied, EEOC Request No. 05940927 (December 8, 1995); EEOC's Enforcement Guidance: Compensatory and Punitive Damages Available under Section 102 of the Civil Rights Act of 1991, EEOC Notice No. 915.002 (July 14, 1992) ("Guidance").
Statements from others, including family members, friends, and health care providers can address the outward manifestations of the impact of the discrimination on the complainant. Id. The complainant could also submit documentation of medical or psychiatric treatment related to the effects of the discrimination. Id. Non-pecuniary damages must be limited to the sums necessary to compensate the injured party for the actual harm and should take into account the severity of the harm and the length of time the injured party has suffered from the harm. Carpenter v. Dep't of Agriculture, EEOC Appeal No. 01945652 (July 17, 1995).
In determining nonpecuniary, compensatory damages, the Commission strives to make damage awards for emotional harm consistent with awards in similar cases. In this case, Complainant asserted, due to the discrimination, she was humiliated, isolated, depressed, sleepless, irritable, hopeless, withdrawn from others and her normal activities (such as attending church), had stress headaches, felt "uncomfortable" at work, and lacked energy. Complainant stated that she was "a happy-go-luck, bubbly person" but the hostile work environment "broke" her. She stated that her condition has not improved and has lasted at least two years. Further, Complainant stated that she was impatient with her two children and that her familial relationships are strained. Complainant requested $150,000 in compensatory damages.
Further, Complainant stated that she sought medical assistance from an Agency doctor once a week for several months and a Psychotherapist once a week for two months. Complainant stated that, as a part-time employee, she did not have insurance and was unable to continue the medical and psychotherapy visits.
Complainant's long-time friend and her father provided statements corroborating Complainant's contentions of emotional distress. Complainant provided progress notes from five Psychotherapy visits. Also, she provided an invoice for $195 for medical visits, but someone else's name was indicated as the client.
After considering the awards in similar cases and the relevant factors discussed above, we find the Agency's $25,000 award insufficient to remedy the harm that its actions caused Complainant. We find $75,000 a reasonable award of nonpecuniary, compensatory damages to Complainant for the proven emotional and psychological distress she suffered as a direct result of the Agency's discriminatory conduct (harassment and retaliation). See, e.g., Nevarez v. Dep't of Veterans Affairs, EEOC Appeal No. 01992199 (September 15, 2000)($55,000 in non-pecuniary damages where the agency's discrimination caused anxiety, depression, paranoia, and post-traumatic stress disorder for a period of eleven months); Brown v. Dep't of Justice, EEOC Appeal No. 01983712 (June 22, 2000) ($75,000 in non-pecuniary damages where the agency's discrimination caused complainant sleeplessness, insomnia, argumentative behavior, depression, anxiety, low self-esteem, increased irritability, and aggravation of complainant's post-traumatic stress syndrome); and Bernard v. Dep't of Veterans Affairs, EEOC Appeal No. 01966861 (July 17, 1998)(awarding $80,000 in compensatory damages where non-selection and denial of accommodation were found to cause severe emotional harm and substantial physical discomfort over a period of time). The award also meets the goals of not being motivated by passion or prejudice, not being "monstrously excessive" standing alone. Further, we find attorney's fees for the instant appeal are in order.
CONCLUSION
Based on the above, we MODIFY the Agency's final order and award $75,000 in nonpecuniary, compensatory damages. The Agency is directed to implement the following corrective action in accordance with the ORDER herein.
ORDER
Within sixty (60) calendar days of the date this decision is issued, the Agency shall tender to Complainant nonpecuniary damages in the amount of $75,000, less any previous amounts of nonpecuniary damages previously paid to Complainant.
The Agency is further directed to submit a report of compliance, as provided in the statement entitled "Implementation of the Commission's Decision." The report shall include supporting documentation verifying that the corrective action has been implemented.
ATTORNEY'S FEES (H1016)
If Complainant has been represented by an attorney (as defined by 29 C.F.R. � 1614.501(e)(1)(iii)), 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 the date this decision was issued. 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 (K0617)
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 in the digital format required by the Commission, and submitted via the Federal Sector EEO Portal (FedSEP). See 29 C.F.R. � 1614.403(g). 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 (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 (T0610)
This decision affirms the Agency's final decision/action in part, but it also requires the Agency to continue its administrative processing of a portion of your complaint. 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 on both that portion of your complaint which the Commission has affirmed and that portion of the complaint which has been remanded for continued administrative processing. 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 your appeal with the Commission, until such time as the Agency issues its final decision on your complaint. 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
May 31, 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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