01992199
09-15-2000
Mary H. Nevarez, Complainant, v. Hershel W. Gober, Acting Secretary, Department of Veterans Affairs, Agency.
Mary H. Nevarez v. Veterans Affairs
01992199
September 15, 2000
.
Mary H. Nevarez,
Complainant,
v.
Hershel W. Gober,
Acting Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 01992199
Agency No. 97-1634
Hearing No. 310-98-5187X
DECISION
Complainant timely initiated an appeal to the Equal Employment Opportunity
Commission (EEOC or Commission) from a final agency decision (FAD)
concerning the agency's award of compensatory damages.<1> The appeal
is accepted pursuant to 29 C.F.R. � 1614.405.
BACKGROUND
During the relevant period, complainant was employed as a Nursing
Assistant with the agency's Central Texas Veterans Health Care System
facility. Complainant filed a formal complaint of discrimination on April
16, 1997, stating that because of her sex (female), she was sexually
assaulted and harassed by a co-worker. Complainant also stated that
because of her sex and in reprisal for her prior activity, the agency
reassigned her after she reported the sexual assault. After the agency
completed the investigation of the complaint, complainant requested a
hearing before an EEOC Administrative Judge (AJ) who issued a decision
finding that the agency discriminated against complainant by failing to
take immediate and appropriate corrective action after it was notified
of the sexual harassment. The AJ noted that the agency's reassigning
both complainant and the harasser was inappropriate because it treated
the victim the same way as the violator. To remedy the established
discrimination, the AJ recommended that the agency: (1) pay complainant's
reasonable attorney's fees and costs; (2) award complainant $7,000.00
in compensatory damages; (3) post a notice at the facility; and (4)
take appropriate disciplinary action against the co-worker who sexually
harassed complainant. In its FAD, the agency adopted the AJ's recommended
decision in its entirety. Thereafter, complainant appealed the FAD
contending that the compensatory damage award was insufficient in light
of the harm complainant suffered and that the AJ did not provide her
reasoning for awarding only $7,000.00 in compensatory damages.
ANALYSIS
Section 102(a) of the 1991 Civil Rights Act authorizes an award
of compensatory damages for post-Act pecuniary losses, and for
non-pecuniary 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 this
regard, the Commission has authority to award such damages in the
administrative process. See West v. Gibson, 527 U.S. 212 (1999).
Compensatory damages do not include back pay, interest on back pay, or
any other type of equitable relief authorized by Title VII. To receive
an award of compensatory damages, a complainant must demonstrate that he
or she has been harmed as a result of the agency's discriminatory action,
i.e., 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), req. for reconsid. denied, EEOC
Request No. 05940927 (December 11, 1995); EEOC's Enforcement Guidance:
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)
(�Guidance�).
A. Pecuniary Damages
Compensatory damages may be awarded for pecuniary losses that are
directly or proximately caused by the agency's discriminatory conduct.
See Guidance at 8. Pecuniary losses are out-of-pocket expenses incurred
as a result of the agency's unlawful action, including job-hunting
expenses, moving expenses, medical expenses, psychiatric expenses,
physical therapy expenses, and other quantifiable out-of-pocket expenses.
Id. Past pecuniary losses are losses incurred prior to the resolution
of a complaint through a finding of discrimination, the issuance of
a full-relief offer, or a voluntary settlement. Id. at 8-9. Future
pecuniary losses are losses that are likely to occur after resolution
of a complaint. Id. at 9. For claims seeking pecuniary damages, a
complainant should proffer objective evidence documenting out-of-pocket
expenses for all actual costs and an explanation of the expense, e.g.,
medical and psychological billings, other costs associated with the injury
caused by the agency's actions, and an explanation for the expenditure.
Id. at 9.
In this case, complainant provides physician bills as evidence of
pecuniary damages. However, the physician associated with the bills
did not provide a report explaining how his treatments related to
the discrimination. Since there is no objective evidence linking the
treatment to the discrimination, we find that complainant failed to
establish her entitlement to a pecuniary damages award.
B. Non-Pecuniary Damages
Non-pecuniary damages constitute the sums necessary to compensate
the injured party for actual harm, even where the harm is intangible.
Carter v. Duncan-Higgins, Ltd., 727 F.2d 1225 (D.C. Cir. 1984). In cases
against agencies with more than 500 employees, non-pecuniary damages
are limited to $300,000.00. We note that nonpecuniary losses for
emotional harm are more difficult to prove than pecuniary losses. See
Guidance at 5. Emotional harm will not be presumed simply because the
complainant is a victim of discrimination. Id. The existence, nature, and
severity of emotional harm must be proved. Id. The method for computing
nonpecuniary damages should typically be based on a consideration of the
severity and duration of harm. Carpenter v. Department of Agriculture,
EEOC Appeal No. 01945652 (July 17, 1995). In determining the severity
of the harm, consideration should be given to all resulting damage of
the discrimination, for example, whether the harm was accompanied by
occasional sleeplessness, or a nervous breakdown resulting in years
of psychotherapy. Guidance at 8. The duration of the emotional harm is
also relevant, meaning that a complainant who has suffered from severe
depression for two months may be awarded less money than a complainant
who has suffered from severe depression for a year. Id. at 8. We note
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 Ward-Jenkins v. Department of
the Interior, EEOC Appeal No. 01961483 (March 4, 1999) (citing Cygnar
v. City of Chicago, 865 F.2d 827, 848 (7th Cir. 1989)). Finally, we
note that the Commission applies the principle that �a tortfeasor takes
its victims as it finds them.� Wallis v. United States Postal Service,
EEOC Appeal No. 01950510 (November 13, 1995) (quoting Williamson v. Handy
Button Machine Co., 817 F.2d 1290, 1295 (7th Cir. 1987)).
Applying the above legal standards, we find that complainant has
established that she suffered emotional and physical harm as a result
of the sexual harassment. The record contains complainant's affidavit
stating that due to the harassment, she suffered anxiety, fear, and
depression and experienced a reoccurrence of prior feelings relating to
abuse by her former husband. The facility's in-house psychologist states
that immediately following the incident, he went to see complainant.
He further states that complainant was extremely distressed and that
her behavior was consistent with an individual experiencing a post
traumatic stress disorder episode. Complainant also submits a report
from her psychologist who stated that as a result of the sexual assault,
complainant suffered anxiety, depression, paranoia and post traumatic
stress disorder.<2> She further opines that the assault brought back
memories of eight years of violence and sexual abuse by her former
husband. The psychologist states that complainant was prescribed
Trazadone, Prozac, and Xanax to treat her condition. The report
also indicates that complainant also had received treatment from a
psychiatrist, but complainant did not provide his report. In further
review of the record, we find that complainant's emotional problems
began immediately after the incident on March 3, 1997 and continued until
at least February 1998, the date of the last treatment report from her
psychologist.
While there is no dispute as to complainant's entitlement to a
non-pecuniary award, the parties dispute the amount necessary to remedy
complainant's harm. The agency contends that the $7,000.00 properly
remedies the harm sustained by complainant. Complainant contends
that she is entitled to an award of $40,000.00. We note that the
Commission has awarded compensatory damages in cases somewhat similar
to complainant's case in terms of the harm sustained. See, e.g.,Brown
v. Department of Justice, EEOC Appeal No. 01983712 (June 22, 2000)
($75,000.00 in non-pecuniary damages where the agency's discrimination
caused sleeplessness, insomnia, argumentative behavior, depression,
anxiety, low self esteem, increased irritability, and aggravation
of complainant's post traumatic stress syndrome); Ward - Jenkins
v. Department of the Interior, EEOC Appeal No. 01961483 (March 4, 1999)
($50,000 in non-pecuniary damages for retaliation which exacerbated
pre-existing Borderline Personality Disorder); Johnson v. Department of
the Interior, EEOC Appeal No. 01961812 (June 18, 1998) ($37,500.00 in
non-pecuniary damages where medical evidence established depression and
related symptoms as a result of the agency's discrimination); Turner
v. Department of the Interior, EEOC Appeal Nos. 01956390 and 01960518
(April 27, 1998) ($40,000 in nonpecuniary damages for physical pain,
loss of enjoyment of life and loss of health sustained by complainant as a
result of harassment); Wallis v. United States Postal Service, EEOC Appeal
No. 01950510 (November 13, 1995) ($50,000.00 in nonpecuniary damages
where the discrimination aggravated of pre-existing emotional condition).
After analyzing the evidence which establishes the physical and emotional
harm sustained by complainant and upon consideration of damage awards
reached in comparable cases, the Commission disagrees with the AJ
and finds that complainant is entitled to an award of non-pecuniary
damages in the amount of $55,000.00.<3> We find this case analogous
to the above-referenced cases, with respect to the nature, severity
and duration of the harm. In reviewing the evidence, we find that
complainant has suffered physical and emotional harm in the form of
anxiety, depression, paranoia, and post traumatic stress disorder
for a period of eleven months. Finally, we note that this award is
not motivated by passion or prejudice, is not "monstrously excessive"
standing alone, and is consistent with the amounts awarded in similar
cases. See Cygnar, 865 F.2d at 848.
CONCLUSION
Accordingly, based on a thorough review of the record, we agree with the
AJ and find that the agency discriminated against complainant when it
failed to take immediate and appropriate corrective action after it was
notified of the sexual harassment in this case. However, as discussed
above, we MODIFY the AJ's compensatory damages award and ORDER the agency
to comply with the Order below.
ORDER (C1092)
To the extent it has not already done so, the agency is ORDERED to take
the following remedial action:
Within thirty (30) days of the date on which this decision becomes final,
tender to complainant $55,000.00 in non-pecuniary compensatory damages.
Within thirty (30) days of the date this decision becomes final, place
complainant back in her Nurse Assistant position at the facility and
reimburse her for all annual and sick leave she used as a result of the
sexual harassment. The complainant shall cooperate in the agency's
efforts to compute the amount of leave used, and shall provide all
relevant information requested by the agency.
Within a reasonable period of time, the agency is directed to conduct EEO
training (with emphasis on sexual harassment) for the relevant staff at
the Central Texas Veterans Health Care System facility. The agency shall
also address management's responsibilities with respect to eliminating
discrimination in the workplace and all other supervisory and managerial
responsibilities under the federal equal employment opportunity laws
enforced by the Commission.
The agency shall post at the appropriate site in the Central Texas
Veterans Health Care System facility copies of the attached notice.
Copies of the notice, after being signed by the agency's duly authorized
representative, shall be posted by the agency within thirty (30) calendar
days of the date this decision becomes final, and shall remain posted
for sixty (60) consecutive days, in conspicuous places, including all
places where notices to employees are customarily posted. The agency
shall take reasonable steps to ensure that said notices are not altered,
defaced, or covered by any other material. The original signed notice
is to be submitted to the Compliance Officer at the address cited in
the paragraph entitled "Implementation of the Commission's Decision,"
within ten (10) calendar days of the expiration of the posting period.
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 must include evidence that the corrective action
has been implemented.
POSTING ORDER (G1092)
The agency is ORDERED to post at its Central Texas Veterans Health Care
System facility copies of the attached notice. Copies of the notice,
after being signed by the agency's duly authorized representative, shall
be posted by the agency within thirty (30) calendar days of the date
this decision becomes final, and shall remain posted for sixty (60)
consecutive days, in conspicuous places, including all places where
notices to employees are customarily posted. The agency shall take
reasonable steps to ensure that said notices are not altered, defaced,
or covered by any other material. The original signed notice is to be
submitted to the Compliance Officer at the address cited in the paragraph
entitled "Implementation of the Commission's Decision," within ten (10)
calendar days of the expiration of the posting period.
ATTORNEY'S FEES (H1199)
If complainant has been represented by an attorney as defined by
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 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 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 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).
COMPLAINANTS' RIGHT TO FILE A CIVIL ACTION (S0400)
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 (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
September 15, 2000
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 29 C.F.R. Part 1614 in deciding the
present appeal. The regulations, as amended, may also be found at the
Commission's website at www.eeoc.gov.
2 We note that complainant did not submit medical bills associated with
this treatment.
3 We note that the AJ in this case failed to provide any analysis for
her compensatory damages award. Moreover, there is no indication that
she allowed complainant the opportunity to submit additional evidence
in support of the compensatory damages claim prior to or after her
issuance of her summary judgment decision. The AJ should be mindful
of her responsibility to develop a full and impartial record and for
further guidance should consult Equal Employment Opportunity Management
Directive for 29 C.F.R. Part 1614 (EEO MD-110), Chapter 7 (with particular
attention to page 7-10) (November 9, 1999). Since complainant submitted
her additional evidence in conjunction with this appeal, we find the
record sufficient to make our compensatory damages findings.