01a46129
02-17-2005
Linda Lans, Complainant, v. Jo Anne B. Barnhart, Commissioner, Social Security Administration, Agency.
Linda Lans v. Social Security Administration
01A46129
February 17, 2005
.
Linda Lans,
Complainant,
v.
Jo Anne B. Barnhart,
Commissioner,
Social Security Administration,
Agency.
Appeal No. 01A46129
Agency No. 94-0479-SSA
Hearing No. 170-95-8304X
DECISION
Complainant timely initiated an appeal from the agency's August 25, 2004
final order concerning the amount of compensatory damages to which she
is entitled as a result of a finding of sex discrimination in violation
of Title VII of the Civil Rights Act of 1964 (Title VII), as amended,
42 U.S.C. � 2000e et seq.
ISSUE
The issue on appeal is whether the agency properly determined that
complainant was entitled to payment of $1,000.00 in compensatory damages.
ANALYSIS
Complainant filed a formal complaint with the agency on March 16, 1994,
alleging that she was sexually harassed when her second-line supervisor
struck her on the buttocks on December 23, 1993, and then said, �When
the cat's away, the mice will play.� Following the investigation of her
complaint, complainant requested a hearing before an EEOC Administrative
Judge (AJ). The AJ issued a decision without a hearing, finding no
discrimination. The agency issued a final decision implementing the
AJ's decision. Complainant appealed the agency's final decision and
the Commission reversed the AJ's decision in EEOC Appeal No. 01980670
(August 28, 2000), finding complainant was subjected to hostile work
environment and finding the agency was liable. The agency filed a request
for reconsideration which was denied by the Commission in EEOC Request
No. 05A10006 (January 10, 2001). The Commission remanded the case for
a determination as to compensatory damages.
A hearing on compensatory damages was held by an EEOC AJ on May 16, 2002.
Complainant presented her own testimony and testimony of two witnesses on
her behalf. The agency presented the testimony of one witness as well as
the deposition of a witness requested by complainant whose appearance was
withdrawn by her on the morning of the hearing.<1> Complainant requested
compensatory damages from the date of the incident, December 23, 1993,
through the time of the hearing, a period of 8 � years.
The AJ issued her decision on compensatory damages on July 8, 2004.
The AJ found that complainant made no claim for pecuniary damages and
submitted no receipts for such damages. Thus, the AJ did not award
pecuniary damages. With regard to non-pecuniary damages, the AJ found
that complainant was shocked, angry, embarrassed, demoralized, humiliated,
suffered diminished self-esteem, disappointment with management and had
some difficulty with her relationship with her husband and sons because
of preoccupation with this incident. The AJ found that this began
when the incident occurred and continued for three months thereafter,
after she was transferred in January 1994, and then dissipated when she
was transferred again in April 1994. The AJ noted that complainant
also suffered some injury to her reputation due to certain managers'
statements that complainant's charges were false and that she caused
the death of the subject manager.
However, the AJ found that the record does not support complainant's claim
of long-term, continued or severe impact. The AJ found complainant's
testimony as to subsequent harm to be �almost completely without
credence.� The AJ stated that she exaggerated her distress, claimed
non-existent harm (such as the inability to hug which had not changed),
and attributed problems to this incident that were actually associated
with other work and personal issues and unrelated sexual harassment.
The AJ found complainant's claim for lost career advancement speculative,
since it was her decision not to apply for any positions after December
1993.
Finally, the AJ denied complainant's request for reimbursement for
attorney's fees paid to criminally prosecute the subject manager.
The AJ noted that those fees were not expended in prosecution of the EEO
complaint, and therefore complainant is not entitled to reimbursement
for that expenditure.
The agency issued a final order dated August 25, 2004, fully implementing
the AJ's decision on compensatory damages.
On appeal, complainant claims that the AJ improperly denied her claim
for pecuniary losses in the form of the cost of engaging an attorney
in a criminal complaint. Complainant argues that she is entitled to
reimbursement in the amount of $700.00 for hiring an attorney in pursuing
her criminal complaint which resulted from the discriminatory behavior
of the agency official. Additionally, complainant argues that she is
entitled to more than $1,000.00 in non-pecuniary damages. Complainant
states that in her testimony and affidavits she described the impact the
discriminatory event has had on her since it occurred in December 1993.
She stated that she was angry, embarrassed and humiliated at the time
of the incident. She states that she missed work and sought counseling
through the agency's Employee Assistance Program. She states that
as a result of the incident, she has had trouble interacting with her
spouse and children and notes that she and her husband were separated
twice because of the affects of the incident. Complainant states that
initially after the incident she could not hug her children, could not
enjoy Christmas and could not properly care for her son when he had
the chicken pox. She also stated that since the incident she keeps her
distance from crowds, has suffered bouts of depression, has crying spells
and constantly relives the experience. She states that she does not
trust management or authority figures. She also claims that she has been
a victim of vicious rumors and innuendo since filing her EEO complaint.
In response to complainant's appeal, the agency argues that complainant
is not entitled to any pecuniary damages. The agency states that the
AJ correctly found that complainant's claimed expenses of $700.00 in
attorney's fees incurred in pursuing a criminal complaint against the
subject manager were not expended in prosecution of the EEO complaint.
With regard to her claim for a higher award of non-pecuniary damages,
the agency argues that substantial evidence supports the AJ's award
of $1,000.00. The agency notes that complainant presents no evidence
relating to any medical treatment, individual counseling, marital or
family counseling, or other treatment in connection with her allegations
of emotional distress and strain on her marriage and family. The agency
notes that complainant never sought medical treatment nor did she take
any medications due to the incident. The agency notes that complainant
stated she attended two sessions with an Employee Assistance Program
Counselor, although she could have attended a total of six pre-paid
visits. The agency notes that complainant testified that she distanced
herself from family and asked her husband to leave on two occasions
after the incident for a total of three days. The agency also notes
that complainant claimed that she refused to let her husband touch
her for one year after the incident and still had trouble with him
when he �smack[ed] her behind.� The agency notes that complainant
spoke on a regular basis to Person A, a friend and clergyman with a
social science degree and counseling background. The agency notes that
Person A's testimony revealed that he had no recollection of complainant
mentioning the December 23, 1999 incident. The agency notes that Person
A remembered a sexual harassment problem with a security guard in 1995,
and attributed complainant's edginess, moodiness, desire to be alone and
problems with her husband to the sexual harassment by the security guard.
The agency notes that Person A stated that prior to the 1995 harassment,
complainant had been fine and had gotten along with her husband. Thus,
the agency argues that Person A's testimony contradicted complainant's
claim that she was still suffering from the effects of the December 23,
1993 incident for a continued period of time.
The agency notes that complainant provided the testimony of Person B,
complainant's friend and co-worker, who testified that complainant was
very disturbed after the incident at issue, became uptight with her
husband and sons and remained stressed to this day. The agency states
that the AJ correctly found that other than testifying that complainant
was upset immediately after the incident, the remainder of her testimony
was vague as to time frames. The agency notes that complainant provided
no testimony from her husband, family members or friends to attest to
her problems at home after December 1993. Thus, the agency argued that
substantial evidence, particularly Person A's deposition testimony,
supports the AJ's conclusion that complainant's claim of long-term and
severe impact on her personal life were not substantiated. The agency
also finds that the AJ properly found there was no nexus between the
December 1993 incident and complainant's disagreements with management
and other work issues that occurred subsequent in time. Finally, the
agency notes that complainant never worked with the subject manager after
the date of the incident, had her request for a transfer granted two
weeks after the incident, and then transferred again on April 3, 1994,
which she stated �began the healing process.� Thus, the agency claims
that complainant's claim as to subsequent harms was not substantiated.
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. See Rivera v. Department of the Navy,
EEOC Appeal No. 01934157 (July 22, 1994), request for reconsideration
denied, EEOC Request No. 05940927 (December 11, 1995); Compensatory and
Punitive Damages Available Under Section 102 of the Civil Rights Act of
1991, EEOC Notice No. N 915.002 at 11-12, 14 (July 14, 1992).
An award of compensatory damages for non-pecuniary losses, including
emotional harm, should reflect the extent to which the respondent directly
or proximately caused the harm, and the extent to which other factors
also caused the harm. The Commission has held that evidence from a
health care provider is not a mandatory prerequisite for recovery of
compensatory damages. See Carpenter v. Department of Agriculture, EEOC
Appeal No. 01945652 (July 17, 1995). The absence of supporting evidence
may affect the amount of damages deemed appropriate in specific cases.
See Lawrence v. USPS, EEOC Appeal No. 01952288 (April 18, 1996).
After a careful review of the record, we find the award of no pecuniary
damages and the award of $1,000.00 in non-pecuniary damages was
appropriate. The AJ found complainant credibly testified that she
suffered from shock, anger, humiliation, embarrassment, diminished
self-esteem, disappointment with management and had some difficulty
with her relationship with her husband and sons immediately following
the incident. The record reveals that complainant's request for a
transfer was granted within two weeks of the incident and she never
worked with the subject manager after the date in question. We note
that she was transferred again in April 1994, to another office which
she states �began the healing process.� We find complainant's testimony
does not support her claims of long term harm. Additionally, we note
that Person B, who complainant states she spoke to on a regular basis
during the relevant time frame, has no recollection of the December 23,
1993 incident and contradicts complainant's claim that she suffered long
term harm as a result of that incident.
Several Commission decisions have awarded similar compensatory damages
in cases similar to complainant's case: Markley v. United States
Postal Service, EEOC Appeal No. 01A04633 (October 13, 2000)($1,000.00 in
non-pecuniary damages for complainant's shock, fatigue and humiliation);
Schral v. Department of Veterans Affairs, EEOC Appeal No. 01961614
(December 15, 1999) ($1,500.00 where complainant presented evidence
that sexual harassment caused her to become shocked and upset and to
have nightmares); Mozell v. Department of the Interior, EEOC Appeal
No. 01981521 (August 12, 1999) ($1,000.00 where complainant's supervisor
took steps to undermine her authority over her subordinates based on sex
and reprisal, causing complainant to become much more emotional than
normal, including becoming irritable and paranoid; and Weatherspoon
v. Department of Agriculture, EEOC Appeal No. 01966395 (March 4, 1999)
($1,000.00 where complainant was denied a promotion based on race,
causing her to feel humiliated and degraded, and become distrustful and
defensive). Thus, we find $1,000.00 is adequate to compensate complainant
for the harm shown to be causally related to the discriminatory conduct.
Further, the amount of the award meets the goals of not being "monstrously
excessive" standing alone, not being the product of passion or prejudice,
and being consistent with the amount awarded in similar cases.
Finally, we find that the AJ properly denied complainant's request for
reimbursement of attorney's fees spent in pursuing a criminal complaint
against the manager in question. Specifically, we find that those
fees were not spent in prosecution of the EEO complaint and therefore,
complainant is not entitled to reimbursement for them. Furthermore,
such fees are too far removed from the discriminatory conduct so as to
be considered appropriate as part of a compensatory damage award.
The agency's decision awarding $1,000.00 in compensatory damages was
proper and we shall order the agency to make such payment to complainant.
ORDER
Within 60 days of the date this decision becomes final, the agency, if
it has not already done so, shall make payment to complainant in the
amount of $1,000.00 for compensatory damages. Evidence showing such
payment was made to complainant shall be sent to the Compliance Officer
as referenced herein.
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 (R0900)
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 (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
February 17, 2005
__________________
Date
1The AJ's decision notes that part of the
complainant's direct examination is missing due to problems with the
tape that recorded her testimony. The AJ notes that she took thorough
notes of the testimony. The AJ's notes are included in the record.