[Redacted], Terrie M., 1 Complainant,v.Lloyd J. Austin III, Secretary, Department of Defense (Defense Commissary Agency), Agency.

Equal Employment Opportunity Commission

Aug 12, 2021

Appeal No. 2020001870 (E.E.O.C. Aug. 12, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Terrie M.,1 Complainant, v. Lloyd J. Austin III, Secretary, Department of Defense (Defense Commissary Agency), Agency. Appeal No. 2020001870 Agency No. DeCA-00038-2017 DECISION Complainant timely filed an appeal with the Equal Employment Opportunity Commission (EEOC or Commission), pursuant to 29 C.F.R. § 1614.403(a), from an Agency’s final decision concerning her entitlement to compensatory damages regarding an equal employment opportunity (EEO) complaint alleging 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. For the following reasons, the Commission VACATES the Agency’s final decision. ISSUE PRESENTED The issue presented is whether the Agency satisfied the Commission's Order in EEOC Appeal No. 0120181358 to conduct a supplemental investigation on the issue of compensatory damages. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Store Associate at the Agency's Bridgeport Commissary facility in Coleville, California. On January 31, 2017, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the basis of sex (female) when, between May 17 and October 18, 2016, she was subjected to sexual harassment by the Store Manager. 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. 2020001870 2 Following the investigation, the Agency provided Complainant with a copy of the report of investigation and notice of her right to request a hearing before an Equal Employment Opportunity Commission Administrative Judge (AJ). When Complainant did not request a hearing within the time frame provided in 29 C.F.R. § 1614.108(f), the Agency issued a final decision pursuant to 29 C.F.R. § 1614.110(b). The decision concluded that Complainant failed to prove that the Agency subjected her to discrimination as alleged. In Terrie M. v. Dep’t of Def., EEOC Appeal No. 0120181358 (Aug. 14, 2019), we reversed the Agency’s final decision, finding that Complainant established that she was subjected to sexual harassment by the Store Manager. In so finding, we noted that the Store Manager conceded discussing his past relationships and making comments about the women he got pregnant. We also found that Complainant's allegations that the Store Manager hit her twice with a yardstick and that he placed his hand on her leg during her performance evaluation were sufficiently supported by Co-Worker1 and Co-Worker2. We further noted that Co-Worker1 and Co- Worker2 also witnessed Complainant's allegations that the Store Manager would place his hands on her shoulders. We therefore found that the evidence showed that the Store Manager engaged in a pattern of offensive conduct towards Complainant, which included inappropriate statements, touching, and even hitting Complainant with a yardstick. We additionally observed that the Store Manager inflicted harassment upon other women as well. We therefore found that the Store Manager’s conduct was both severe and pervasive and was sufficiently offensive to alter the conditions of Complainant's working environment. Lastly, we found the Agency liable for the Store Manager’s sexual harassment and any compensatory damages that Complainant may be entitled to for the harassment. As a result, we ordered the Agency to, among other things, conduct a supplemental investigation with respect to Complainant’s entitlement to compensatory damages. The Agency subsequently provided Complainant with a notice of her right to submit evidence in support of her claim for damages. On October 3, 2019, Complainant submitted her claim for compensatory damages to the Agency. Therein, Complainant requested compensation for past pecuniary compensatory damages for lost night differential pay in the amount of $1,289.28 and for mileage, medication, and co-pay expenses totaling $1,995.00 Complainant further requested future pecuniary compensatory damages totaling $3,000 for mental health treatment. Complainant additionally sought the statutory maximum of $300,000 in non-pecuniary compensatory damages due to the mental and emotional harm she suffered as a result of the sexual harassment she experienced from the Store Manager. Complainant explained, moreover, that the sexual harassment caused injury to her character, professional standing, and reputation. Complainant also requested compensation for 240 hours of medical leave she had to take as a result of the Store Manager’s harassment. On November 25, 2019, the Agency issued a compliance report, which it improperly labeled a final order.2 2 We will construe the November 25, 2019, compliance report (labeled by the Agency as a final order) as the Agency’s final decision on Complainant’s entitled to compensatory damages. 2020001870 3 Therein, the Agency noted that it complied with our orders in EEOC Appeal No. 0120181358 by disciplining, training, and reassigning the Store Manager. The Agency also noted briefly that it conducted a supplemental investigation on Complainant’s entitlement to compensatory damages, finding that Complainant was entitled to an award of $15,000 in non-pecuniary compensatory damages. The Agency also noted that it determined that Complainant was not entitled to an award of pecuniary compensatory damages, as Complainant did not submit any supporting documentation. CONTENTIONS ON APPEAL On appeal, Complainant maintains that the Agency did not address her request for lost night differential pay in the amount of $1,289.28 and for mileage, medication, and co-pay expenses totaling $1,995.00. Complainant asserts that the Agency also did not address her request for future pecuniary compensatory damages totaling $3,000 for mental health treatment. She contends, moreover, that the Agency did not address her requested compensation for 240 hours of medical leave she had to take as a result of the Store Manager’s harassment.3 ANALYSIS AND FINDINGS Failure to Conduct a Supplemental Investigation on Compensatory Damages The OFO Decision and Order in EEOC Appeal No. 0120181358 instructed the Agency to: [G]ive Complainant notice of her right to submit objective evidence (pursuant to the guidance given in Carle v. Dep't. of the Navy, EEOC Appeal No. 01922369 (Jan. 5, 1993)) in support of her claim for compensatory damages within forty- five (45) calendar days of the date the Complainant receive the Agency's notice. The Agency shall complete the investigation on the claim for compensatory damages within forty-five (45) calendar days of the date the Agency receives Complainant's claim/evidence for compensatory damages. Thereafter, the Agency shall process the claim in accordance with 29 C.F.R. § 1614.110. When an Agency is ordered to conduct a supplemental investigation on the issue of compensatory damages, it should request from Complainant specific objective and other evidence of the alleged damages. Carle v. Dep't of the Navy, EEOC No. 01922369 (Jan. 5, 1993). The Carle decision provides guidance on the type of evidence that the Agency should ask Complainant to provide to establish a claim of pecuniary and non-pecuniary compensatory damages. For example: Objective evidence could have taken the form, if appellant obtained medical care, of receipts and/or bills for medical care, medication, and transportation to the 3 Complainant attaches her October 3, 2019, claim for non-pecuniary compensatory damages to her appeal wherein she requested the statutory maximum of $300,000 in non-pecuniary compensatory damages. 2020001870 4 doctor. Other evidence could have taken the form of a statement by appellant describing her emotional distress, and statements from witnesses, both on and off the job, describing the distress. To properly explain the emotional distress, such statements should include detailed information on physical or behavioral manifestations of the distress, if any, and any other information on the intensity of the distress, information on the duration of the distress, and examples of how the distress affected appellant day to day, both on and off the job. We find that the Agency did not provide Complainant with sufficient guidance on the legal standards for compensatory damages or the types of evidence that she could submit to prove such damages in their notice to Complainant regarding her right to submit evidence in support of her claim for damages. See Harold M. v. Dep’t of the Air Force, EEOC Appeal No. 0120162540 (Feb. 22, 2018) (finding that the agency failed to provide complainant with any guidance on the legal standards for compensatory damages or the types of evidence that he could submit to prove such damages in the notice, and the agency failed to conduct a supplemental investigation on compensatory damages as ordered in in our previous decision). We also note that the Agency, in its November 25, 2019, decision notes that it completed a supplemental investigation on Complainant’s entitlement to compensatory damages. Yet the record shows that the Agency conducted no such supplemental investigation. We note that Complainant submitted documentation on October 3, 2019, in response to the Agency’s notice of her right to submit evidence in support of her claim for damages. The Agency appears to have only relied on this documentation submitted by Complainant to indicate that it completed the required supplemental investigation. It is therefore apparent that the Agency failed to investigate compensatory damages as ordered and instead placed the entire burden on Complainant to compile the compensatory damages record. Aside from the Agency’s letter requesting information, the Agency has not exerted any effort to investigate Complainant’s claim for compensatory damages (e.g., an investigator was never assigned, no interviews have been conducted, including Complainant’s, no specific documents have been requested or produced, a report of investigation has not been compiled). See Mark D. v. Dep’t of Justice, EEOC Petition No. 2019001549 (Oct. 24, 2019) (finding that the agency failed to conduct an adequate investigation on compensatory damages after complainant asserted that the agency placed the entire burden on him to compile the compensatory damages record); See Duhn v. Dep't of Transp., EEOC Appeal No. 01A34112 (Oct. 19, 2004) (finding that a mere reiteration of our order to submit evidence is not a supplemental investigation on the issue of compensatory damages). Moreover, we note that the Agency did not issue a separate final decision on the issue of compensatory and did not conduct any type of legal analysis in its decision to award Complainant $15,000 in compensatory damages. CONCLUSION Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we VACATE the Agency’s decision. 2020001870 5 ORDER The Agency is ORDERED to take the following remedial action: Within one hundred twenty (120) calendar days of the date this decision is issued, the Agency shall conduct a supplemental investigation of Complainant's entitlement to compensatory damages. The Agency is directed to inform Complainant about the legal standards associated with proving compensatory damages and give Complainant examples of the types of evidence used to support a claim for compensatory damages. Complainant shall be given thirty (30) calendar days from the date he receives the Agency's notice to provide all supporting evidence of his claim for compensatory damages. Within 30 calendar days of the date the Agency receives Complainant's submission, the Agency shall issue a new final decision determining Complainant's entitlement to compensatory damages, together with appropriate appeal rights. 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. IMPLEMENTATION OF THE COMMISSION’S DECISION (K0719) 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. 2020001870 6 Failure by an agency to either file a compliance report or implement any of the orders set forth in this decision, without good cause shown, may result in the referral of this matter to the Office of Special Counsel pursuant to 29 C.F.R. § 1614.503(f) for enforcement by that agency. STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0920) The Commission may, in its discretion, reconsider this appellate decision if Complainant or the Agency submits a written request that contains arguments or evidence that 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 for reconsideration must be filed with EEOC’s Office of Federal Operations (OFO) within thirty (30) calendar days of receipt of this decision. If the party requesting reconsideration elects to file a statement or brief in support of the request, that statement or brief must be filed together with the request for reconsideration. A party shall have twenty (20) calendar days from receipt of another party’s request for reconsideration within 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). Complainant should submit his or her request for reconsideration, and any statement or brief in support of his or her request, via the EEOC Public Portal, which can be found at https://publicportal.eeoc.gov/Portal/Login.aspx Alternatively, Complainant can submit his or her request and arguments to the Director, Office of Federal Operations, Equal Employment Opportunity Commission, via regular mail addressed to P.O. Box 77960, Washington, DC 20013, or by certified mail addressed to 131 M Street, NE, Washington, DC 20507. In the absence of a legible postmark, a complainant’s request to reconsider shall be deemed timely filed if OFO receives it by mail within five days of the expiration of the applicable filing period. See 29 C.F.R. § 1614.604. An agency’s request for reconsideration must be submitted in digital format via the EEOC’s Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). Either party’s request and/or statement or brief in opposition must also include proof of service on the other party, unless Complainant files his or her request via the EEOC Public Portal, in which case no proof of service is required. Failure to file within the 30-day time period will result in dismissal of the party’s request for reconsideration as untimely, unless extenuating circumstances prevented the timely filing of the request. 2020001870 7 Any supporting documentation must be submitted together with the 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 (R0610) 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 (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 August 12, 2021 Date