0120073317
12-28-2007
Joann Morris, Complainant, v. Pete Geren, Secretary, Department of the Army, Agency.
Joann Morris,
Complainant,
v.
Pete Geren,
Secretary,
Department of the Army,
Agency.
Appeal No. 01200733171
Agency No. ARANAD05APR07923
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts complainant's
appeal from the agency's June 28, 2007 final decision on compensatory
damages. The agency had previously found in favor of complainant,
concluding that management had engaged in discrimination in violation of
the Title VII of the Civil Rights Act of 1964 (Title VII), as amended, 42
U.S.C. � 2000e et seq. Complainant alleged that the agency discriminated
against her on the basis of sex (female) when her supervisor made
inappropriate comments of a sexual nature.2
BACKGROUND
On April 4, 2004, complainant was hired for a one-year appointment as
a temporary Tool and Parts Attendant in the Directorate of Mission,
Plans and Operations ("DMPO"), at the Anniston Army Depot in Anniston
Alabama. The Supervisor of the Maintenance Parts division ("S1") was
complainant's immediate supervisor from the time she was hired until
May 21, 2005. Beginning at the time she started work S1 subjected
complainant to frequent unwelcome comments that were sexual in nature.
The inappropriateness of S1's comments and conduct intensified as
time passed. On March 28, 2005, complainant met with an EEO Counselor
regarding the sexual harassment. Ultimately, complainant was transferred
and began working under a different supervisor; however, she states
that the harm caused by the sexual harassment is permanent in nature
and continues to date.
On December 6, 2006, the agency issued a final decision finding
discrimination. The decision awarded complainant an indeterminate
amount of compensatory damages and requested that complainant submit
evidence on damages. Upon receiving the requested information, the
agency issued its decision on damages on June 28, 2007. The agency
concluded that complainant was entitled to $65.43 in past pecuniary
damages because the only medical expenses that could be potentially
linked to the discriminatory acts were those that occurred during the
time of the harassment. According to the agency, there was insufficient
evidence showing that subsequent medical visits were connected to the
harassment or that complainant's knee pain and high blood pressure were
attributable to the harassment. With regard to non-pecuniary damages,
the agency awarded complainant $5,000.00 based on its analysis of
our case law. As for attorney's fees, the agency awarded complainant
$7,622.50. The agency did not grant her request to restore her annual
and sick leave, stating that it cannot do so in a compensatory damages
claim because "leave is an employment benefit independent of any claim
of compensatory damages" and it is a component of equitable relief.
The agency also denied complainant's claim for future pecuniary damages,
stating that the evidence did not contain objective proof from an expert
showing that complainant's medical problems are permanent in nature and
stemming directly from the harassment. Nevertheless, the agency provided
complainant a total award of $12,687.93.
CONTENTIONS ON APPEAL
Complainant insists that the agency should have awarded her $1,540.69 in
pecuniary damages ($600.00 in medical expenses, $842.97 in pharmaceutical
expenses, and $97.72 in mileage expenses). She argues that the medical
documentation she submitted shows that the stress experienced at work
caused the multiple medical problems she experienced, and that her
doctor's statement attests to the duration and extent of her medical
complications. The fact that some of her expenses arose after the
harassment ended does not preclude her from recovering those expenses,
and the doctor's letter stating that she was able to resume her regular
duties does not imply that the medical problems disappeared. As such,
she maintains, she is entitled to recover all her medical expenses.
Complainant also argues that the $5,000 award in non-pecuniary damages
is inconsistent with awards made in similar cases and does not fully
compensate her for her harm. According to complainant, the discriminatory
conduct to which she was subjected was particularly devastating to her
emotional and physical well-being, and she has demonstrated the extent,
nature and severity of her injuries through her various proffers of
evidence. She lists several cases which, she states, are comparable to
her case and in which the Commission awarded the complainants relief
ranging from $125,000 to $33,000. Given this case law, she argues,
she is entitled to a greater award. Lastly, complainant maintains that
the agency should have restored 92.5 hours of leave which she took due
to the discrimination. Complainant explains that she took 83.5 hours
of sick leave and 9 hours of annual leave during the time in question.
Complainant argues that the agency was wrong to not restore her leave
as it is a common form of relief under Title VII. In fact, having been
found to be a victim of harassment, she pleads, she has no other forum
in which to claim the lost leave. See Appeal Statement.
In response, the agency maintains that there is no error in its decision
on damages and that it should be affirmed. With regard to past pecuniary
damages, specifically the medical expenses, the agency insists that
complainant is entitled to reimbursement only for those expenses incurred
between April 6, 2004 and March 17, 2005 that are directly related to the
discriminatory acts. Expenses for any visits outside this time period
are reimbursable only if causally related to the harassment. As such,
the agency finds that complainant is entitled to only $60.00 - the cost
involved in one office visit. With regard to pharmaceutical expenses,
the agency concludes that in light of the fact that only one office visit
was attributable to the sexual harassment and that most of the medications
prescribed were for high blood pressure, high cholesterol, and arthritis
pain - conditions which were either pre-existing or unrelated to the
harassment - none of the claimed expenses are compensable. As for the
mileage expenses, the agency maintains that the cost of traveling to the
one compensable doctor's visit entitles complainant to only $5.43. With
regard to complainant's claim for future pecuniary expenses, the agency
reiterates that there was no indication in the record that complainant
continued to experience symptoms causally related to the harassment.
Moreover, according to complainant's own primary care physician,
complainant was able to resume her regular and full duties at work.
As for her claim for non-pecuniary damages, the agency argues that
complainant failed to differentiate between past and future non-pecuniary
damages and to weigh the nature and severity of her emotional harm against
the nature and severity of the acts of discrimination she endured.
According to the agency, complainant's sparse evidence on her damages
lacks sufficient credibility and weight to justify a greater award.
Lastly, with regard to the restoration of leave, the agency explains that
she is not entitled to such an award because she took no leave on the
day of her only compensable doctor's visit. The agency further points
out that complainant impermissibly wants the agency to restore leave
that she took in 2005 and 2006 after the harassment ended. Accordingly,
the agency requests that we affirm its final decision on damages.
STANDARD OF REVIEW
The Commission shall review the agency's final decision based on a de novo
standard. See 29 C.F.R. � 1614.405(a) (2004); see also EEOC Management
Directive 110, Ch. 9, � VI.B (Nov. 9, 1999) (providing that an AJ's
"decision to issue a decision without a hearing ... will be reviewed
de novo"). This essentially means that we look at this case with fresh
eyes, and we are free to accept (if accurate) or reject (if erroneous)
the AJ's and agency's factual conclusions and legal determinations,
including the ultimate fact of whether discrimination occurred and a
federal employment discrimination statutes was violated. See id.
ANALYSIS AND FINDINGS
Pursuant to Section 102 (a) of the Civil Rights Act of 1991, a
complainant who establishes a claim of unlawful discrimination may
receive compensatory damages for past and future pecuniary losses (out
of pocket expenses) and non-pecuniary losses (i.e., pain and suffering
and mental anguish). See 42 U.S.C. � 1981a(b)(3). To receive such an
award, a complainant must demonstrate: (1) that she has been harmed as
a result of the agency's discriminatory action; (2) the extent, nature
and severity of the harm3, and (3) the duration or expected duration of
the harm. See Rivera v. Dep't of the Navy, EEOC Appeal No. 01934157
(July 22, 1994), req. for recons. den'd, EEOC Request No. 05940927
(Dec. 11, 1995).
Specifically with regard to pecuniary damages, the particulars of what
relief may be awarded, and what proof is necessary to obtain that relief,
are set forth in detail in the Enforcement Guidance. Briefly stated, a
complainant must submit evidence to show that the agency's discriminatory
conduct directly or proximately caused the losses for which damages are
sought. See id. at 11-12, 14; Rivera v. Dep't of the Navy, EEOC Appeal
No. 01934157 (July 22, 1994). Documentation, typically in the form of
receipts, bills, or physician statements are required to support an award
of past pecuniary damages. See Almera v. Dep't of Veterans Affairs,
EEOC Appeal No. 01A13618 (Jan. 30, 2002); see also Valentine v. Dep't of
Justice, EEOC Appeal No. 07A30098 (Dec. 10, 2003), req. for recons. den'd,
EEOC Request No. 05A40372 (Feb. 27, 2004).
Past Pecuniary Damages
Complainant has submitted medical notes for two visits that took place
February and March 2005, during the time of the discriminatory incidents.
All of the other medical notes post-date the time of the harassment.
The February 2005 note, however, does not address or even allude to the
situation she is experienced at work. Complainant's chief complaint to
her doctor at that visit was her arthritic knee. The March 2005 note,
on the other hand, specifically states that she has been "under a lot of
stress at work and blood pressure is staying high [and that] she does
not feel good." Medical Note for March 23, 2005, Complainant's Ex. 3.
Her chief complaint is a headache and hypertension, the severity of
which was noted as mild. We agree with the agency that unlike the March
2005 note, the February 2005 note does not provide objective proof that
her physical symptoms were proximately caused by the situation at work.
As such, we agree that the March 2005 visit is compensable. As mentioned,
complainant submits many other medical notes, many of which state that
she has been under stress at work, see Medical Notes for May 25, 2005,
June 14, 2005, and June 20, 2005, Complainant's Ex. 3. However, we
find insufficient evidence directly tying this stress to the harassment,
particularly as the stress was reported after the harassment ended when
complainant no longer worked with S1. Moreover, her hypertension and
arthritic knee pain are pre-existing conditions. Although the agency is
liable for the additional harm or aggravation to pre-existing conditions
caused by the discrimination, see Wallis v. United States Postal Serv.,
EEOC Appeal No. 01950510 (Nov. 13, 1995); Finlay v. United States Postal
Serv., EEOC Appeal No. 01942985 (Apr. 29, 1997), we do not find a causal
link in the evidence between these conditions and the harassment.4 It is
the complainant's burden to provide objective evidence in support of her
claim and proof linking the damages to the alleged discrimination. Papas
v. United States Postal Service, EEOC Appeal No. 01930547 (Mar. 17, 1994);
Mims v. Dep't of the Navy, EEOC Appeal No. 01933956 (Nov. 24, 1993).
Complainant failed to meet this burden. As such, we find the agency's
award of $65.43 for past pecuniary damages proper.
Future Pecuniary Damages
As for the agency's finding on future pecuniary damages, we also agree
that there is insufficient evidence to support her claim that the harm
is permanent in nature. Complainant provided two doctor's statements.
One statement, dated May 25, 2005, indicates that complainant suffered
from high blood pressure and depression, that she was under a lot of
stress at work, and that she needs to "avoid a stressful environment
to prevent further medical conditions." The other statement, dated
January 12, 2007 (produced nearly two years after the end of the
harassment), indicates that complainant suffered from hypertension,
headaches, depression and diabetes. It reiterates that she is under a
lot of "work-related" stress and needs to avoid stressful environments.
It further indicates that complainant was referred to a psychiatrist and
takes various medication. Complainant's Ex. 2. Neither statement spells
out the extent and expected duration of the conditions. Moreover, neither
statement clearly draws the connection between the medical conditions and
the harassment complainant experienced from April 2004 to April 2005.
As such, we affirm the agency's conclusion that complainant is not
entitled to any future pecuniary damages.
Non-Pecuniary Damages
As for the non-pecuniary damages award, we agree with complainant that
the amount is not consistent with other comparable cases and that
the evidence does support a larger award. We note that there is no
precise formula for determining the amount of non-pecuniary damages,
except that the award should reflect the nature and severity of the
harm and its duration or expected duration. See Loving v. Dep't of
the Treasury, EEOC Appeal No. 01955789 (Aug. 29, 1997). It should
likewise be consistent with amounts awarded in similar cases and
not be "monstrously excessive." Jackson & Beaner v. United States
Postal Serv., EEOC Appeal Nos. 01972555 & 01972556 (Apr. 15, 1999)
(citing Cygnar v. City of Chicago 865 F.2d 827, 848 (7th Cir. 1989).
Non-pecuniary compensatory damages are designed to remedy harm and not
to punish the agency for its discriminatory actions.
For over a year, complainant's supervisor subjected complainant to
unwelcome comments of a sexual nature and some unwanted touching.
Complainant reports having felt degraded, threatened, stressed, and
embarrassed by the experience. She further claims to have suffered from,
among other things, depression, sleeplessness, headaches, anxiety, low
self-esteem, crying spells, high blood pressure, exacerbation of diabetes
and weight gain as a result of the harassment. See Complainant's Ex. 1.
As mentioned above, she submitted two doctor's statements discussing her
hypertension and knee problems which state that she was under workplace
stress. See Complainant's Ex. 2. She also submitted statements from
her children and co-workers which state that she became a different
person as a result of the harassment. See Complainant's Exs. 7 and 8.
Our review of our case law finds situations where complainants
experienced harm similar to that which complainant experienced. In St
John v. United States Postal Serv., EEOC Appeal No. 01996706 (Jan. 29,
2002), req. for recons. den'd, EEOC Request No. 05A20436 (June 12,
2002), we awarded complainant $20,000 where the sexual harassment
caused complainant to feel ashamed, lose weight, stop attending
social function with family and friends, and experience insomnia.
Although there were no supporting statements from family or friends, the
record contained statements from complainant's psychiatrist confirming
an exacerbation of depression and PTSD. In Darrell v. Dep't of Navy,
EEOC Appeal No. 01992288 (Jan. 19, 2001), req. for recons. den'd, EEOC
Request No. 05A10286 (May 2, 2001), we awarded $20,000 where complainant
presented a psychiatrist's statement stating that complainant had been
hospitalized for two weeks for major depression, and family members noted
that her self-confidence had decreased and that she exhibited increased
mood swings. The complainant also suffered the harm for four years.
In a more recent case, Page-Sanchez v. United States Postal Serv.,
EEOC Appeal No. 0720050080 (June 12, 2007), we awarded complainant
$15,000 where complainant had experienced harassment at the hands of
her supervisor for four years and complainant sought counseling to treat
her dread of going to work and help her cope with the sadness and stress
she felt at work.
Unlike the complainants in these other cases, complainant here experienced
the sexual harassment for a shorter duration and to a lesser degree.
Of course, we do not belittle complainant's harm and we agree with her
that she is entitled to more in damages than the agency has awarded.
However, we find her case more akin to Van Wolken v. Dep't of Homeland
Sec., EEOC Appeal No. 07A30134 (May 11, 2004), req. for recons. den'd,
EEOC Request No. 05A40960 (Aug. 25, 2004), where we awarded complainant
$12,000 to compensate her for the stress, insomnia, headaches, stomach
aches and panic attacks she experienced and for which she sought medical
treatment and medication. Similarly, we find Parker v. Dep't of the
Navy, EEOC Appeal No. 01A12829 (Jan. 28, 2002) instructive. In Parker,
we awarded $12,000 where, although other factors contributed to the
complainant's physical symptoms of anxiety, humiliation, sleeplessness,
loss of appetite and depression, family statements as well as medical
evidence confirmed the symptoms. Accordingly, we find that complainant
is entitled to $12,000 in non-pecuniary damages.
Restoration of Leave
Finally, with regard to complainant's appeal to have the agency
restore the leave she took as a result of discrimination, we agree with
complainant that restoration of leave is an appropriate remedy under Title
VII; however, we also agree with the agency that restoration of leave is
an equitable remedy. Since it does not appear that complainant had the
opportunity to appeal the agency's denial of leave, in the interests of
judicial economy, we will review her claim herein. Upon review, we are
not persuaded that all of the leave taken was directly or proximately
caused by the harassment. Instead, we find that she is entitled to the
restoration of only 4 hours of sick leave. We base this on the Leave
Request Form, dated June 12, 2005, in which she requests the leave
due to "blood pressure up, upset by Supervisor." Complainant's Ex. 6.
With regard to the other claimed leave, the agency is correct to note
that the evidence does not show a correlation between the leave taken
and the harm experienced from the harassment, particularly as the leave
was taken in 2005 and 2006, after the harassment ended.5
Accordingly, we affirm the agency's decision regarding pecuniary damages;
however, we modify the agency's decision regarding non-pecuniary damages
and leave restoration, remanding the matter to the agency for further
processing in accordance with the ORDER below.
ORDER
The agency is ordered to take the following remedial action:
1. Within 30 days of the date this decision becomes final, the agency
shall pay complainant $12,000.00 for non-pecuniary compensatory damages.
2. Within 30 days of the date this decision becomes final, agency shall
pay complainant $65.43 for pecuniary compensatory damages.
3. Within 30 days of the date this decision becomes final, agency shall
pay complainant $7,622.50 in attorneys' fees and costs; and
4. Within 30 days of the date this decision becomes final, agency shall
restore 4 hours of complainant's sick leave.
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 (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 28, 2007
__________________
Date
1 Due to a new data system, this case has been redesignated with the
above referenced appeal number.
2 The agency did not find discrimination as to complainant's claim that
she had been retaliated against when management failed to convert her
to a permanent position. Complainant never appealed this finding and
the instant appeal centers solely on the issue of compensatory damages.
3 We note that emotional harm is not presumed simply because complainant
was the victim of discrimination. The existence, nature, and severity
of the harm must be proven. See EEOC 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 II(A)(2)
(July 14, 1992).
4 In fact, the doctor's notes indicate that the aggravation of these
conditions are more likely due to complainant's weight problem, which
was also a pre-existing condition, as the doctor's continually instructed
complainant to lose weight and exercise.
5 Unlike the Leave Request Form which specifically states that
complainant took 4 hours of sick leave to care of the elevated blood
pressured caused by her supervisor, the rest of the evidence documenting
complainant's leave comes in the form the Employee Attendance Records
which do not indicate the reasons for the leave.
??
??
??
??
10
0120073317
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036