Marielle L.,1 Complainant,v.Richard V. Spencer, Secretary, Department of the Navy, Agency.

Equal Employment Opportunity Commission

Sep 18, 2018

0120161600 (E.E.O.C. Sep. 18, 2018)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013

Marielle L.,1
Complainant,

v.

Richard V. Spencer,
Secretary,
Department of the Navy,
Agency.

Appeal No. 0120161600

Agency No. 11-00264-03217

DECISION

Complainant filed an appeal with the Equal Employment Opportunity Commission (EEOC or
Commission), pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s March 7, 2016 final
decision concerning the compensatory damages awarded following a finding that the Agency
subjected her to unlawful 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’s review is de
novo. For the following reasons, the Commission MODIFIES the Agency's final decision.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a Heavy Laborer,
WG-3502-04, at the Agency’s Facilities Maintenance Section, Roads and Grounds Maintenance
Shop (Shop 71) in U.S. Marine Corps Base in Quantico, Virginia. On August 19, 2011,
Complainant filed a formal complaint alleging that she was subjected to sexual harassment and a
hostile work environment on the basis of sex (female) as evidenced by the following incidents:

1. On or about March 16, 2011, a co-worker (CW-1) came to her in the break room of
Shop 71, pulled his chair up, put one of his knees between her legs, caressed her
hand, and talked softly to her while telling her to go back to work;

1 This case has been randomly assigned a pseudonym which will replace Complainant’s name
when the decision is published to non-parties and the Commission’s website.
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2. In April 2011, while on a speaker phone, CW-1 told Complainant that he loved her
while discussing leave issues;

3. On or about May 27, 2011, while outside the shop bay, CW-1 came up behind
Complainant, put his arms under her arms, gave her a bear hug from behind, moaned,
pressed his penis against her behind, grabbed her stomach, and squeezed her; and

4. On January 26, 2012, while having trouble with her credit card at a snack machine,
CW-1 approached Complainant and a co-worker and handed the co-worker a dollar to
give to Complainant. Complainant refused the dollar, told CW-1 that she did not
need his “fucking money,” and asked him why he did not just go away. CW-1 replied
that he could stand wherever he wanted, to which Complainant replied, “Not around
me.”

Following an investigation, Complainant requested a final agency decision (FAD-1). In FAD-1,
the Agency concluded that Complainant had established that she was subjected to sexual
harassment; however, there was no basis for liability as management took prompt, remedial
action when it learned of the harassment.

Complainant appealed and, in Complainant v. Dep’t of the Navy, EEOC Appeal No.
0120130704 (Sept. 16, 2015), the Commission reversed FAD-1. The Commission found that
Complainant had established that she was subjected to sexual harassment and that there was a
basis to impute liability to the Agency. The Commission ordered the Agency to ensure that CW-
1 had no contact with Complainant by barring him from her work facility and from
communicating with her; to conduct a supplemental investigation into Complainant’s entitlement
to compensatory damages and to issue a final decision on the issue of compensatory damages; to
provide EEO training to CW-1 and all management officials at the facility; to consider taking
disciplinary action against CW-1 and Complainant’s first and second-level supervisors; and to
post a notice.

During the investigation, Complainant requested $29,094.00 in pecuniary damages, leave
without pay (LWOP) reimbursement, and $310,000.00 in non-pecuniary damages. On March 7,
2016, the Agency issued a final decision (FAD-2). In FAD-2, the Agency first addressed
Complainant’s request for pecuniary damages. Complainant requested moving expenses to San
Antonio, Texas for her and her spouse ($6,542.00 for mileage and expenses); reimbursement for
prescription co-payments ($1,600.00); and pro-rated lost income for leaving her position with the
Agency in January 2014 and for her spouse for leaving his position ($20,952.00). The Agency
determined that Complainant had not previously raised a constructive discharge claim and that,
even if it was properly raised, there was no evidence to support such a claim as Complainant did
not allege any further harassment after January 2012. Therefore, the Agency found that
Complainant was not entitled to reimbursement for moving expenses. As to her prescription co-
payments, the Agency determined that Complainant submitted no evidence that any of the
medications were prescribed for a condition that she developed or was exacerbated as a result of
the harassment.
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Finally, the Agency concluded that Complainant was entitled to reimbursement of 74 hours of
LWOP that she was forced to use for surgery in 2013 after she used up all of her leave in 2011
and 2012 due to the harassment.

As to non-pecuniary damages, Complainant provided evidence that she experienced stress,
irritability, fear for her safety, panic attacks, exhaustion, depression, headaches, and aching
muscles. Based on the degree of emotional harm, the Agency awarded Complainant $23,000.00
in non-pecuniary compensatory damages. The instant appeal followed.

CONTENTIONS ON APPEAL

On appeal, Complainant contends that she is entitled to $29,094.00 in pecuniary damages.
Complainant claims that she provided ample objective evidence demonstrating that her moving
was caused by the Agency’s discrimination and that the Agency is liable for the documented
moving expenses. Further, Complainant argues that her emotional distress required her to search
for and obtain a new position and that she had to accept a demotion and pay reduction.
Complainant contends that she submitted sufficient evidence showing that the Agency’s
discrimination exacerbated and triggered a number of medical conditions. As to non-pecuniary
damages, Complainant argues that she is entitled to $290,000.00 for the severe emotional distress
and mental anguish she experienced as a result of the Agency’s discrimination. Additionally,
Complainant contends that the injury to her professional standing and credit rating must be
considered in the non-pecuniary compensatory damages award. Accordingly, Complainant
requests that the Commission reverse FAD-2 and award her the requested damages.

ANALYSIS AND FINDINGS

When discrimination is found, the Agency must provide the 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 Transp. Co., 424 U.S.
747, 764 (1976); Albemarle 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 either Title VII of the Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. § 2000e
et seq., or Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29
U.S.C. § 791 et seq. 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, 119 S.Ct. 1906
(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).

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To receive an award of compensatory damages, a complainant must demonstrate that he or she
has been harmed as a result of an agency’s discriminatory action; the extent, nature, and severity
of the harm; and the duration or expected duration of the harm. Rivera v. Dep't of the Navy,
EEOC Appeal No. 01934157 (July 22, 1994), req. for reconsid. denied, EEOC Request No.
05940927 (Dec. 11, 1995); Compensatory and Punitive Damages Available Under Section 102
of the Civil Rights Act of 1991, EEOC Notice No. 915.002 (July 14, 1992), at 11-12, 14.
Compensatory damages may be awarded for the past pecuniary losses, future pecuniary losses,
and non-pecuniary losses which are directly or proximately caused by the agency's
discriminatory conduct. EEOC Notice No. 915.002 at 8.

Pecuniary Compensatory Damages

Pecuniary damages are quantifiable out-of-pocket expenses incurred as a result of the Agency’s
discriminatory actions. Damages for past pecuniary losses will not normally be granted without
documentation such as receipts, records, bills, cancelled checks, or confirmation by other
individuals of actual loss and expenses. Complainant’s request included relocation expenses,
lost income for her and her spouse, and prescription medicine co-payments.2 First, Complainant
requested $6,542.00 in relocation expenses she and her spouse incurred after she was forced to
leave the Agency and move to San Antonio to accept another position in January 2014 due to the
effects of the harassment. Additionally, Complainant claimed that she and her spouse suffered
reductions in pay equaling $20,952.00 as a result of this relocation. Complainant is essentially
claiming that she was constructively discharged. Complainant, however, did not raise a
constructive discharge claim in her complaint or attempt to amend her complaint to include such
a claim. Furthermore, Complainant has not demonstrated a nexus between the expenses related
to her January 2014 relocation and the Agency’s discrimination. Accordingly, the Commission
finds that Complainant has not established an entitlement to reimbursement for her and her
spouse’s relocation expenses and lost income.

Likewise, Complainant requested $1,600.00 in medical expenses. Complainant included a list of
prescriptions she purchased from July 2014 to September 2015, following her relocation to San
Antonio. Complainant, however, has not submitted any evidence establishing a causal
connection between any of the claimed medical expenses and the harassment that occurred
between March 2011 and January 2012. Accordingly, the Commission finds that Complainant
has not demonstrated an entitlement to any pecuniary compensatory damages.

Non-Pecuniary Compensatory Damages

2 The Commission notes that Complainant does not challenge the Agency’s award of LWOP
reimbursement.
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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 Notice No. 915.002 at 10 (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. Furthermore, compensatory
damages should not be motivated by passion or prejudice or be “monstrously excessive”
standing alone, but 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).

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 complainant concerning his 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, and 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. 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, Complainant stated that as a result of the sexual harassment she suffered, she experienced
severe emotional distress, fear, depression, sleep disturbance, aggravation of several pre-existing
conditions, and injuries to her professional standing and credit rating. In addition, several friends
and family members submitted statements describing the changes in Complainant’s demeanor
and health.

Based on the review of the evidence in light of Commission cases regarding non-pecuniary
compensatory damages awarded for emotional harm, the Commission finds that the Agency’s
award of $23,000.00 is insufficient to remedy the harm experienced by Complainant.
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The Commission finds that an award of $45,000.00 is more appropriate given the nature and
duration of the harm. See Delfina Y. v. Dep’t of Def., EEOC Appeal No. 0120160902 (Jan. 17,
2018) ($35,000 awarded where harassment and Agency’s failure to timely act promptly resulted
in complainant experiencing emotional distress and mental strain); Oni v. Dep't of the Treasury,
EEOC Appeal No. 0720100015 (Oct. 11, 2011) ($50,000.00 in non-pecuniary damages where
complainant experienced crying and feeling upset, problems sleeping, feelings of depression, and
headaches that caused her to seek medical attention); Crawford v. U.S. Postal Serv., EEOC
Appeal No. 0720070020 (Mar. 5, 2010) ($50,000.00 awarded where complainant was devastated
and felt hopeless; lost appetite and lost 50 pounds; experienced uncontrollable crying; and sought
psychiatric care and was prescribed several medications for depression and sleep); McNeese-
Ards v. Dep't of Veterans Affairs, EEOC Appeal No. 0720090027 (Apr. 15, 2010) ($45,000.00
in non-pecuniary compensatory damages awarded where complainant suffered from depression,
loss of sleep, severe emotional distress, and anxiety); Scott v. Dep't of Energy, EEOC Appeal
No. 0720070018 (Apr. 24, 2007) ($40,000.00 in non-pecuniary damages where complainant was
subjected to sexual harassment and terminated).

The Commission finds that this amount takes into account the severity of the harm suffered, and
is consistent with prior Commission precedent. Finally, the Commission finds this award is not
“monstrously excessive” standing alone, is not the product of passion or prejudice, and is
consistent with the amount awarded in similar cases. See Jackson v. U.S. Postal Serv., EEOC
Appeal No. 01972555 (Apr. 15, 1999) (citing Cygnar v. City of Chicago, 865 F. 2d 827, 848 (7th
Cir. 1989)).

CONCLUSION

After a review of the record in its entirety, including consideration of all statements submitted on
appeal, it is the decision of the Equal Employment Opportunity Commission to MODIFY the
Agency’s final decision. The Agency shall comply with the Order set forth below.

ORDER

To the extent it has not already done so, within sixty (60) days of the date this decision is issued,
the Agency shall:

1. Pay Complainant $45,000.00 in non-pecuniary compensatory damages.

2. Reimburse Complainant for 74 hours of leave without pay (LWOP).

The Agency is further directed to submit a report of compliance in digital format as provided in
the statement entitled “Implementation of the Commission's Decision.” The report shall be
submitted via the Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g).

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ATTORNEY'S FEES (H1016)
If Complainant has been represented by an attorney (as defined by 29 C.F.R.
§ 1614.501(e)(1)(iii)), 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 the date this decision was issued. 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 (K0618)

Under 29 C.F.R. § 1614.405(c) and § 1614.502, compliance with the Commission’s corrective
action is mandatory. Within seven (7) calendar days of the completion of each ordered
corrective action, the Agency shall submit via the Federal Sector EEO Portal (FedSEP)
supporting documents in the digital format required by the Commission, referencing the
compliance docket number under which compliance was being monitored. Once all compliance
is complete, the Agency shall submit via FedSEP a final compliance report in the digital format
required by the Commission. See 29 C.F.R. § 1614.403(g). The Agency’s final report must
contain supporting documentation when previously not uploaded, and the Agency must send a
copy of all submissions to the Complainant and his/her representative.

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.

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STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0617)
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. A party
shall have twenty (20) calendar days of receipt of another party’s timely request for
reconsideration in which to submit a brief or statement in opposition. See 29 C.F.R. § 1614.405;
Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110),
at Chap. 9 § VII.B (Aug. 5, 2015). All requests and arguments must be submitted to the
Director, Office of Federal Operations, Equal Employment Opportunity Commission.
Complainant’s request may be submitted via regular mail to P.O. Box 77960, Washington, DC
20013, or by certified mail to 131 M Street, NE, Washington, DC 20507. 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
agency’s request must be submitted in digital format via the EEOC’s Federal Sector EEO Portal
(FedSEP). See 29 C.F.R. § 1614.403(g). 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 (T0610)

This decision affirms the Agency's final decision/action in part, but it also requires the Agency to
continue its administrative processing of a portion of your complaint. 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 on both that portion of your complaint which the
Commission has affirmed and that portion of the complaint which has been remanded for
continued administrative processing. 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
your appeal with the Commission, until such time as the Agency issues its final decision on your
complaint.
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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 (Z0815)

If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may
request permission from the court to proceed with the civil action without paying these fees or
costs. Similarly, if you cannot afford an attorney to represent you in the civil action, you may
request the court to appoint an attorney for you. You must submit the requests for waiver of
court costs or appointment of an attorney directly to the court, not the Commission. The
court has the sole discretion to grant or deny these types of requests. Such requests do not alter
the time limits for filing a civil action (please read the paragraph titled Complainant’s Right to
File a Civil Action for the specific time limits).

FOR THE COMMISSION:

______________________________ Carlton M. Hadden’s signature
Carlton M. Hadden, Director
Office of Federal Operations

September 18, 2018
Date