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.