Lulverne Tom, Complainant,v.Donna E. Shalala, Secretary, Department of Health & Human Services (Indian Health Service), Agency.

Equal Employment Opportunity CommissionSep 22, 2000
01992881 (E.E.O.C. Sep. 22, 2000)

01992881

09-22-2000

Lulverne Tom, Complainant, v. Donna E. Shalala, Secretary, Department of Health & Human Services (Indian Health Service), Agency.


Lulverne Tom v. Department of Health & Human Services

01992881

September 22, 2000

Lulverne Tom, )

Complainant, )

) Appeal No. 01992881

v. ) Agency No. IHS-549-94

)

Donna E. Shalala, )

Secretary, )

Department of Health & Human Services )

(Indian Health Service), )

Agency. )

______________________________________)

DECISION

Complainant timely initiated an appeal from a final agency decision

(FAD) concerning her complaint of unlawful employment discrimination

in violation of Title VII of the Civil Rights Act of 1964, as amended,

42 U.S.C. � 2000e et seq.<1> The appeal is accepted pursuant to 64

Fed. Reg. 37,644, 37,659 (1999)(to be codified at 29 C.F.R. � 1614.405).

ISSUE PRESENTED

Whether the agency's final decision denying complainant's request for

compensatory damages was correct.

BACKGROUND

The record reveals that during the relevant time, complainant was employed

as a Food Service Worker at the agency's Indian Health Service, Gallup,

New Mexico facility. Believing she was a victim of discrimination,

complainant sought EEO counseling and subsequently filed a formal

complaint on March 28, 1994. Therein, complainant alleged that she was

sexually harassed by the Lead Cook (LC), when he asked her out on a date

around November 1993, grabbed her around her shoulders and attempted to

hug her on December 10, 1993, rubbed his body up against hers on prior

occasions, and made offensive comments of a sexual nature towards her.

At the conclusion of the investigation, complainant was informed of

her right to request a hearing before an EEOC Administrative Judge or

alternatively, to receive a final decision by the agency. Complainant

requested that the agency issue a final decision.

On August 13, 1996, the agency issued a final decision that found

complainant established a prima facie case of sexual harassment.

However, the agency also found that it took immediate and appropriate

corrective action when it became aware of the acts of sexual harassment

by complainant's co-worker, and thus, it was not liable for the sexual

harassment. Complainant appealed the agency's decision to the Office

of Federal Operations. See Lulverne Tom v. Department of Health &

Human Services, EEOC Appeal No. 01966875 (October 1, 1998). Therein,

we disagreed with the agency's finding that it took prompt remedial

action once it became aware of the sexual harassment, and reversed the

agency's final decision.

As part of the relief ordered, the agency was instructed to conduct

a supplementary investigation into complainant's entitlement to

compensatory damages, and issue a final decision. On January 25,

1999, the agency issued a final decision finding that complainant was

not entitled to compensatory damages. Specifically, the agency found

that complainant failed to present sufficient evidence of pecuniary or

non-pecuniary damages related to the sexual harassment. Instead, the

agency found complainant raised new allegations that were not included

in the subject EEO complaint, and not considered by the agency, or the

Office of Federal Operations. Specifically, complainant's statement

provided for the supplementary investigation detailed emotional distress

suffered when, in June 1994, her temporary appointment was not renewed,

and she was not selected for other agency positions.<2>

On appeal, complainant contends that the agency failed to conduct

an appropriate investigation. She argues that her supplementary

investigation statement detailed emotional distress causally related

to the sexual harassment. Indeed, complainant states that the

termination and subsequent nonselections were a direct result of the

sexual harassment. As to those issues, complainant states that she did

report to the EEO Counselor, and claims she was informed that all issues

would be resolved in the instant matter.

In response to complainant's appeal brief, the agency disputes

complainant's contention that it did not conduct an appropriate

investigation into compensatory damages, and reminds complainant that

it is her burden to prove compensatory damages. The agency argues that

complainant's termination and subsequent nonselections are not at issue

in the present case. Rather, they are separate issues which complainant

was instructed to discuss with an EEO Counselor. The agency provides a

statement from an EEO Counselor who spoke with complainant and states

that complainant never requested EEO Counseling.<3> Finally, the agency

contends that complainant failed to show any causal connection between

the sexual harassment and resulting emotional distress. The agency

requests that we affirm its FAD.

ANALYSIS AND FINDINGS

Section 102(a) of the 1991 Civil Rights Act ("CRA") authorizes an

award of compensatory damages for all post -Act pecuniary losses,

and for nonpecuniary 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. In West

v. Gibson, 527 U.S. 2121 (1999), the United States Supreme Court found

that Congress afforded the Commission the authority to award such

damages in the administrative process. The CRA authorizes an award of

compensatory damages as part of make-whole relief for discrimination.

Section 1981a(b)(3) limits the total amount of compensatory damages

that may be awarded each complaining party for future pecuniary

losses, emotional pain, suffering, inconvenience, mental anguish,

loss of enjoyment of life, and other nonpecuniary losses, according to

the number of individuals employed by the respondent. The limit for a

respondent who has more than 500 employees is $300,000.

To receive an award of compensatory damages, a 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. Department

of the Navy, EEOC Appeal No. 01934157 (July 22, 1994), request for

reconsideration denied, EEOC Request No. 05940927 (December 11, 1995);

Lawrence v. United States Postal Service, EEOC Appeal No. 01952288 (April

18, 1996). Compensatory and Punitive Damages Available Under Section

102 of the Civil Rights Act of 1991, EEOC Notice No. 915.002 at 11-12,

14 (July 14, 1992).

Despite complainant's argument to the contrary, we agree with the agency

that the instant complaint deals only with complainant's claim of sexual

harassment, and not complainant's termination, non-renewal of appointment,

or nonselection claims. In light of complainant's failure, at least to

this point in time, to prove that the non-renewal of her appointment or

nonselections were as a result of prohibited discrimination, we find she

is not entitled to compensatory damages for emotional distress related

to such actions.

As part of the supplementary investigation, complainant submitted, among

other things, a statement detailing emotional distress she has suffered

in the past few years. She requests $80,000 in non-pecuniary damages

for emotional distress. As the agency points out, however, complainant's

discussion begins in June 1994, when she was terminated from employment

from the agency. The remainder of her statement continues from that

point in time, and thus, we do not find that such emotional distress was

related to the sexual harassment. Rather, it appears to be related to

her resulting unemployment. As such, we find complainant is not entitled

to compensatory damages for the emotional distress discussed therein as

it deals only with the effects of her termination and nonselections.

In addition, complainant submitted for the supplemental investigation

a request for lost wages since June 16, 1994, sick leave, money for

pawned personal items, damages due to loss of credit, loss of vehicle

and utilities, as well as loss of educational opportunities for her

children. She requests $100.00 for moving expenses and unspecified

amount for counseling. The fact that complainant has gone through a

period of hardship is evident from her statement. After a review of

her submissions for the supplementary investigation, however, we find

complainant failed to prove that such pecuniary damages were as result

of the sexual harassment.

Despite this, we have found other evidence in the record that shows a

nexus between complainant's emotional distress and the sexual harassment.

Specifically, documents in the record reveal complainant requested

compensatory damages for suffering shame, loss of work motivation and

fear of retaliation. Further, she reported feeling scared, upset,

and confused because of the sexual harassment. In the context of the

sexual harassment allegations, she reported in her affidavit that she

has suffered weight gain.

Although complainant has not submitted any medical evidence in

support of her claim, we note that such evidence is not mandatory to

establish entitlement to damages. Id. In this regard, the Commission

has awarded damages in cases where there was no medical evidence.

See Pailin v. Department of Defense, EEOC Appeal No. 01954350 (January

26, 1998) ($2,500 in damages where complainant testified that she

experienced tension, depression, and withdrawal from co-workers);

Demeuse v. U.S. Postal Service, EEOC Appeal No. 01950324 (May 22, 1997)

($1,500 in damages where complainant testified as to exacerbation of

post-traumatic stress disorder); Lawrence v. U. S. Postal Service, EEOC

Appeal No. 01952288 (April 18, 1996) ($3,000 in damages where complainant

presented primarily non-medical evidence that she was irritable,

experienced anxiety attacks, and was shunned by her co-workers).

There are no "hard and fast" rules governing the amount to be awarded.

However, non-pecuniary damages must be limited to the sums necessary

to compensate the injured party for actual harm, even where the harm

is intangible, see Carter v. Duncan - Hogans, Ltd., 727 F.2d 1225

(D.C. Cir. 1994), and should take into account the severity of the harm

and the length of time that the injured party has suffered from the harm.

Carpenter v. Dept. of Agriculture, EEOC Appeal No. 01945652 (July 17,

1995); EEOC Notice No. 915.002 at 14. The Commission notes that for a

proper award of non-pecuniary damages, the amount of the award should not

be "monstrously excessive" standing alone, should not be the product of

passion or prejudice, and should be consistent with the amount awarded

in similar cases. See Cygnar v. City of Chicago, 865 F.2d 827, 848 (7th

Cir. 1989); US EEOC v. AIC Security Investigations, Ltd., 823 F.Supp. 573,

574 (N.D. Ill. 1993).

In that regard, after considering the record as a whole, we find

complainant suffered non-pecuniary damages in the amount of $1000.00.

This amount is intended to compensate complainant for proven emotional

distress suffered as a result of the sexual harassment. We further note

this amount is not meant to compensate complainant for any emotional

distress suffered as a result of the non-renewal of her appointment or

nonselections that occurred subsequent to the sexual harassment.

Therefore, after a careful review of the record, including complainant's

contentions on appeal, the agency's response, and arguments and evidence

not specifically addressed in this decision, we MODIFY the FAD.

ORDER (C1199)

The agency is ORDERED to take the following remedial action:

Within thirty (30) days from the date this decision becomes final, the

agency shall provide complainant with a check in the amount of $1000.00

for her proven non-pecuniary damages.

The agency shall pay complainant's reasonable attorney's fees in

accordance with the paragraph below.

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 (H1199)

If complainant has been represented by an attorney (as defined by 64

Fed. Reg. 37,644, 37,659-60 (1999) (to be codified and hereinafter

referred to as 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 (K1199)

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 64

Fed. Reg. 37,644, 37,659-60 (1999) (to be codified and hereinafter

referred to as 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)(Supp. V 1993). If the complainant files a civil action, the

administrative processing of the complaint, including any petition for

enforcement, will be terminated. See 64 Fed. Reg. 37,644, 37,659 (1999)

(to be codified and hereinafter referred to as 29 C.F.R. � 1614.409).

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M0300)

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 64

Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter referred

to as 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 64 Fed. Reg. 37,644, 37,661 (1999) (to be codified and hereinafter

referred to as 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).

COMPLAINANTS' RIGHT TO FILE A CIVIL ACTION (R0400)

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:

September 22, 2000

Date Carlton M. Hadden, Acting Director

Office of Federal Operations

1 On November 9, 1999, revised regulations governing the EEOC's federal

sector complaint process went into effect. These regulations apply to all

federal sector EEO complaints pending at any stage in the administrative

process. Consequently, the Commission will apply the revised regulations

found at 64 Fed. Reg. 37,644 (1999), where applicable, in deciding the

present appeal. The regulations, as amended, may also be found at the

Commission's website at www.eeoc.gov.

2 The agency also noted that on January 14, 1999, it referred complainant

to an EEO Counselor regarding these subsequent allegations, but

complainant failed to initiate contact with an EEO Counselor.

3Apparently, it appears complainant eventually contacted an EEO Counselor

on these matters.