0120112517
06-27-2012
Julianne S. Bradstreet, Complainant, v. John M. McHugh, Secretary, Department of the Army, Agency.
Julianne S. Bradstreet,
Complainant,
v.
John M. McHugh,
Secretary,
Department of the Army,
Agency.
Appeal No. 0120112517
Agency No. ARRUCKER09OCT04911
DECISION
On April 14, 2011, Complainant filed an appeal from the Agency's March 17, 2011, 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. The Commission deems the appeal timely and accepts it pursuant to 29 C.F.R. � 1614.405(a).
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Firefighter at the Agency's Fire and Emergency Services Division facility in Fort Rucker, Alabama. She was the only female firefighter assigned to Station One. Due to the shifts assigned to firefighters, Complainant, when on duty, lived at the fire station. One of the restrooms was designated for her use.
On December 16, 2009, Complainant filed an EEO complaint alleging that the Agency subjected her to harassment that created a hostile work environment on the basis of sex (female) when:
a. since August 2008, she was subjected to continuous harassment from coworkers regarding issues pertaining to the designation of a female restroom in the fire station; and
b. on October 13, 2009, she requested permission to leave work due to stress related symptoms experienced as a result of comments made by coworkers about Complainant filing a grievance
In brief, Complainant alleged that male firefighters, were angry that one of the restrooms had been designated for her use as a female, and continued to use it, leaving it consistently unclean with urine puddles and feces on the wall and floor, and rotting food garbage in the trash. The record shows that even one of the Lieutenants regularly used the female restroom despite upper management's directive not to do so, contributing to the other firefighters' apparent belief that the station's leaders did not take the prohibition seriously. The male firefighters constantly complained about Complainant's toiletries and feminine hygiene products in the restroom, and would throw them away on a regular basis. Magazines were left in the restroom ranging from Maxim to Guns and Ammo. A semi-nude suggestive magazine page captioned as "driving miss crazy" was slipped under the locked restroom door. Firefighters made inappropriate comments to Complainant's husband when he visited her at the station, including asking for a picture of her as a teenager to see how hot she was. Complainant also alleged that, as a result of the constant conflict over the restroom, the other firefighters stopped talking to her and left the room when she entered. During a staff meeting, they told her the she was "whining like a little bitch" and they were "tired of [her] shit." Finally, on October 13, 2009, Complainant went on leave due to the stress of the conflict with her coworkers and management's lack of response to it. She did not return to duty until January 6, 2010.
At the conclusion of the investigation, 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). In accordance with Complainant's request, the Agency issued a final decision pursuant to 29 C.F.R. � 1614.110(b). The decision concluded that Complainant proved that the Agency subjected her to discrimination as alleged. The decision ordered the restoration of sick and or annual leave taken by Complainant as a result of the hostile work environment created by the Agency up until the date of Complainant's return to duty on January 6, 2010, after which it claimed there was no evidence of continued harassment.
The Agency's decision further found that Complainant may be entitled to an award of compensatory damages as a result of the Agency's conduct provided she is able to establish a causal relationship between the prohibited discrimination and any pecuniary or non-pecuniary losses. The Agency's decision advised Complainant to cooperate with its efforts to compute the amount of compensatory damages by submitting a claim for such to the Agency's designated representative within 30 calendar days of her receipt of its final decision dated March 17, 2011.
Finally, the Agency indicated that because Complainant was represented by a non-attorney during the processing of her complaint, she was not entitled to attorney's fees as a result of the Agency's finding of discrimination. However, the Agency acknowledged that in the event that Complainant obtained legal counsel to assist her with her claim for compensatory damages, she would be entitled to payment of attorney's fees. Complainant was advised that any such attorney's fee petition should be submitted simultaneously with her submission regarding compensatory damages.
The instant appeal by Complainant followed. On appeal, Complainant argues that the Agency failed to complete an impartial and factual record before arriving at its finding of discrimination. Specifically, Complainant alleges that she was subjected to additional acts of harassment after she returned to work at the Agency on January 6, 2010, including being stripped of her firefighter job duties and being assigned to a desk without a phone or a computer and without any work to do. Complainant contends that that the Agency failed to consider or investigate these additional incidents of harassment before issuing its final decision. Because of the Agency's alleged failure to fully develop the record, Complainant contends further that she is entitled to greater relief than the Agency ordered in its final decision. Complainant requests that the Commission remand the matter to the Agency for further investigation regarding the creation of a hostile work environment after Complainant's return to the Agency on January 6, 2010. Complainant further requests the Commission to order the Agency to make a determination as to whether Complainant is entitled to additional remedial relief beyond January 6, 2010.
In its response to Complainant's appeal, the Agency maintains that it conducted a fair and impartial factual record in accordance with EEOC Regulation 29 C.F.R. � 1614.108(b) which provides generally that the Agency must develop a complete and impartial record on matters raised by the written complaint. The Agency further maintains that Complainant never raised any issues or discussed any incidents of harassment following her return to the Agency on January 6, 2010. The Agency argues that Complainant never requested to amend or consolidate additional claims with her December 16, 2009 formal complaint in this matter. Finally, the Agency argues that Complainant is not entitled to relief in the form of compensatory damages in light of her failure to submit any claim for such to the Agency.
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. (November 9, 1999) (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").
As an initial matter we find that the Agency conducted a factual and impartial investigation on the matters raised by Complainant in her written complaint filed on December 16, 2009. Complainant argues that upon her return to duty in January 2010, she was subjected to additional incidents of harassment in retaliation for the instant complaint that eventually resulted in her being forced to resign (constructive discharge) in April 2010. The record supports the Agency's contention that she failed to bring those concerns to the investigator's attention. While Complainant, on appeal, asserts the investigator never asked her any questions about what happened once she returned to work, she does not even allege that she raised these alleged subsequent events with the investigator or any other Agency official associated with the EEO process.
As the Agency correctly points out, in accordance with EEOC Regulations, a complainant may add claims or incidents that are like or related to those raised in a pending complaint at any time prior to the issuance of the notice required by 29 C.F.R. � 1614.108(f) at the completion of the investigation. The Agency's notification as required by EEOC regulation was provided to Complainant in a letter dated May 21, 2010, about a month after her resignation. Complainant failed to amend her complaint to add additional claims of hostile work environment harassment at any time between December 16, 2009, when she filed her formal complaint, and May 21, 2010, when she received the Agency's notice regarding the completion of the investigation. The record indicates that she failed to raise any additional claims of hostile work environment harassment until she filed the instant appeal. In that regard, we find that the Agency has developed a full, factual and impartial record of the matters raised in Complainant's complaint, that is, the creation of a hostile work environment beginning in August 2008 and ending upon Complainant's return to the workplace on January 6, 2010.
Because we find that Complainant established that she was subjected to sex-based hostile work environment harassment, as discussed above, we now turn to the matter of the remedy to which she may be entitled.
When discrimination is found, the Agency must provide Complainant with a remedy that constitutes full, make-whole relief to restore her as nearly as possible to the position she would have occupied absent the discrimination. See, e.g., Franks v. Bowman Transport. Co., 424 U.S. 747, 764 (1976); Albermarle Paper Co. v. Moody, 422 U.S. 405, 418-19 (1975); Adesanya v. U.S. Postal Serv., EEOC Appeal No. 01933395 (July 21, 1994). Pursuant to Section 102(a) of the Civil Rights Act of 1991, a complainant who establishes unlawful intentional discrimination under Title VII 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. � 1981a(b)(3).
Non-pecuniary losses are losses that are not subject to precise quantification, i.e., emotional pain, suffering, inconvenience, mental anguish, loss of enjoyment of life, injury to professional standing, injury to character and reputation, injury to credit standing, and loss of health. See EEOC Enforcement Guidance: Compensatory and Punitive Damages Available Under Section 102 of the Civil Rights Act of 1991, EEOC Notice No. 915.002, at II.A.2 (July 14, 1992). There is no precise formula for determining the amount of damages for non-pecuniary losses except that the award should reflect the nature and severity of the harm and the duration or expected duration of the harm. See Loving v. Dep't of the Treasury, EEOC Appeal No. 01955789 (Aug. 29, 1997). The Commission notes that non-pecuniary compensatory damages are designed to remedy the harm caused by the discriminatory event rather than punish the Agency for the discriminatory action. Further, compensatory damages should not be "monstrously excessive" standing alone, should not be the product of passion or prejudice, and should be consistent with the amounts awarded in similar cases. See Ward-Jenkins v. Dep't of the Interior, EEOC Appeal No. 01961483 (Mar. 4, 1999) (citing Cyngar v. City of Chicago, 865 F.2d 827, 848 (7th Cir. 1989)).
Evidence from a health care provider or other expert is not a mandatory prerequisite for recovery of compensatory damages for emotional harm. See Lawrence v. U.S. Postal Serv., EEOC Appeal No. 01952288 (Apr. 18, 1996) (citing Carle v. Dep't of the Navy, EEOC Appeal No. 01922369 (Jan. 5, 1993)). Objective evidence of compensatory damages can include statements from a complainant concerning her emotional pain or suffering, inconvenience, mental anguish, loss of enjoyment of life, injury to professional standing, injury to character or reputation, injury to credit standing, loss of health, and any other non-pecuniary losses that are incurred as a result of the discriminatory conduct. Id.
Statements from others including family members, friends, health care providers, other counselors (including clergy) could address the outward manifestations or physical consequences of emotional distress, including sleeplessness, anxiety, stress, depression, marital strain, humiliation, emotional distress, loss of self-esteem, excessive fatigue, or a nervous breakdown. Id. A complainant's own testimony, along with the circumstances of a particular case, can suffice to sustain her burden in this regard. Id. The more inherently degrading or humiliating the defendant's action is, the more reasonable it is to infer that a person would suffer humiliation or distress from that action. Id. The absence of supporting evidence, however, may affect the amount of damages appropriate in specific cases. Id.
Here, the Agency argues that Complainant is not entitled to any award of compensatory damages because she failed to file a claim for such following her receipt of the Agency's finding of discrimination. However, the Commission finds that despite the fact that Complainant failed to submit a formal claim for compensatory damages as directed by the Agency in its final decision, a review of the record discloses that Complainant provided significant statements in the record indicating how the hostile work environment harassment negatively affected her, as well as her husband and son. During the course of the investigation, Complainant provided testimony to the investigator stating that the hostile work environment began to affect her health and caused her a great deal of stress as evidenced by symptoms like headaches, and an upset stomach every time she had to go to work. She further indicated that she had trouble sleeping and concentrating, that she suffered depression and anxiety as a result of the hostile environment in which she worked. Complainant also averred that the stress she suffered due to her work environment negatively affected her relationship with her husband and son. The record describes one incident in which Complainant's husband came to work to eat dinner with her and Complainant's coworkers asked Complainant's husband if he had a picture of Complainant when she was 18 so they could see if she was hot. Complainant's husband became upset and Complainant had to hold her husband back. Complainant also averred that she suffered loss of consortium. Moreover, a review of the Agency's final decision discloses that Complainant advised the Agency that she had to call in sick "maybe once or twice per month," because she "didn't want to be there," because of the hostile work environment. In addition, the Agency acknowledged that the work environment degraded her trust that her fellow firefighters would support Complainant in a potentially life threatening situation. Finally, the record shows that Complainant was out of work between October 2009 and January 2010 due to the stress of the harassing events.
On appeal, however, the Agency did not specifically dispute any of the testimony pertaining to the pain and suffering which according to Complainant was caused by the Agency's conduct. Instead, the Agency argued simply that Complainant was not entitled to a compensatory damage award because she failed to formally submit a claim for such.
Based on our review of the evidence, we find that substantial evidence in the record supports an award of $50,000. In other cases, the Commission has awarded compensatory damages for emotional harm such as anxiety, depression, stress, tearfulness, mental anguish, loss of enjoyment of life, loss of self-esteem, sleep problems, and humiliation. See Jackson v. Dep't of the Air Force, EEOC Appeal No. 0720110036 (Mar. 13, 2012) ($125,000 awarded in 19-month harassment case where complainant experienced anxiety, depression, post-traumatic stress disorder, sleep problems, loss of enjoyment of life, loss of self-esteem, damage to professional reputation, and withdrawal from relationships); Robinson v. Dep't of the Treasury, EEOC Appeal No. 0720070015 (May 22, 2008) ($85,000 awarded as a result of a discriminatory hostile work environment that resulted in emotional pain and suffering, mental anguish, health problems, anxiety, stress, depression, loss of self-esteem, and excessive fatigue); Morrison v. U.S. Postal Serv., EEOC Appeal No. 07A50003 (Apr. 18, 2006) ($90,000 awarded in one-year harassment case where complainant experienced depression, anxiety, sleeplessness, post-traumatic stress disorder, and where complainant's psychological trauma continued well past the date she resigned from the agency).
We find that $50,000 is not "monstrously excessive" standing alone, is not the product of passion or prejudice, and is consistent with Commission precedent. While we disagree with the Agency's contention that Complainant is not entitled to any award for compensatory damages, we note here that we are unable to award a higher amount in damages in light of Complainant's failure to submit a specific claim for compensatory damages as directed in the Agency's finding of discrimination.
Accordingly, considering the nature, duration, and severity of Complainant's emotional harm and with reference to damage awards reached in comparable cases, we find that the Agency's finding of discrimination was proper and it is affirmed. It is the decision of the Commission to modify the Agency's decision finding discrimination, to include an award of $50,000 in non-pecuniary compensatory damages.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, the Agency's decision is MODIFIED. Complainant is entitled to compensatory damages in the amount of $50,000 in non-pecuniary damages for pain and suffering as a result the Agency's creation of a hostile work environment.
ORDER (D0610)
The Agency is ordered to take the following remedial actions:
Within 45 calendar days after this decision becomes final, the Agency shall, to the extent it has not already done so:
1. Pay Complainant $50,000 in non-pecuniary damages for pain and suffering; and
2. Restore the sick and/or annual leave taken by Complainant as a result of the hostile work environment up until the date of her return to duty in January 2010. Should the Complainant no longer be a federal employee, the Agency shall restore the sick leave hours for the Complainant's use should she ever return to federal employment and shall pay the monetary equivalent for any leave without pay or annual leave hours used due to the hostile work environment between August 1, 2008 and January 6, 2010.1
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 that the corrective action has been implemented.
ATTORNEY'S FEES (H0610)
If Complainant has been represented by an attorney (as defined by 29 C.F.R. � 1614.501(e)(1)(iii)), he 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 (K0610)
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 (M0610)
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), at 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 (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 (Z0610)
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
June 27, 2012
__________________
Date
1 We note that the Agency has already posted notice concerning the finding of discrimination in all of its 22 fire stations for sixty days, as well as conducted face-to-face meetings with all supervisors regarding the handling of EEO harassment issues.
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0120112517
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120112517