Tasia C.,1 Complainant,v.Dr. Mark T. Esper, Secretary, Department of Defense (Defense Commissary Agency), Agency.

Equal Employment Opportunity Commission

Aug 13, 2019

0120180732 (E.E.O.C. Aug. 13, 2019)

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

Tasia C.,1
Complainant,

v.

Dr. Mark T. Esper,
Secretary,
Department of Defense
(Defense Commissary Agency),
Agency.

Appeal No. 0120180732

Agency No. DECA001512016

DECISION

On December 19, 2017, 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
December 4, 2017, final decision concerning her 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., and the Age Discrimination in
Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a Lead Store
Associate, GS-05, at the Agency’s Hunter Army Air Field (AAF) Commissary facility in
Savannah, Georgia.

On October 13, 2016, Complainant filed an EEO complaint alleging that the Agency subjected
her to a hostile work environment and discrimination on the bases of race (Black), sex (female),
and age when: (1) on June 18, 2016, her supervisor (Supervisor) made reference to white
superiority by extending her hand (as in a Nazi salute), stating, “white power;” (2) on July 16,
2016, Supervisor told Complainant that Supervisor’s grandson was “all white,” after
Complainant showed Supervisor a picture of Complainant’s grandchild who has biracial or

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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multiracial heritage; (3) Supervisor referred to Complainant and other black female co-workers
as “bitch” or “stupid;” (4) in January 2016, Supervisor stated that she wished one of the co-
workers would get into a wreck and die and, in April 2016, she hit another co-worker on the
head; Supervisor visibly favored the sole male employee in the department, especially with
regard to time and attendance issues, leave, and the schedule; and (5) on April 25, 2017,
Supervisor questioned Complainant as to whether she was recording a conversation Supervisor
was having with a co-worker, wanted someone to look at Complainant’s phone, and kept the
phone locked in the produce office.

In a letter dated December 1, 2016, the Agency dismissed the complaint in its entirety for failure
to state a claim. Complainant appealed the dismissal, and, on March 31, 2017, the Commission
reversed and remanded the complaint to the Agency for further processing, including an
investigation.

At the conclusion of 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). In accordance with Complainant’s request,
the Agency issued a final decision pursuant to 29 C.F.R. § 1614.110(b). The decision concluded
that Complainant proved that the Agency subjected her to discrimination as alleged and stated
that the Agency would take action to ensure a workplace free from discrimination and
harassment and conduct mandatory EEO/Prevention of Harassment training to Supervisor.

The instant appeal followed.

CONTENTIONS ON APPEAL

On appeal, Complainant submitted a statement indicating that she is seeking compensation for
her anxiety and stress that resulted from hostile work environment and harassment from
Supervisor. She states that the harassment has caused her to take a combination of daily
medications and she continues to be in therapy. She has been tormented while working under
these conditions and every time she goes to work, she gets nervous, wondering what Supervisor
is going to do to her. She feels the effects mentally and physically. She is exhausted from coming
to work feeling nervous, harassed, and mistreated. She has statements from her doctor indicating
she will continue to receive care “from now until the immediate future.”

Complainant believes that training is an insufficient remedy. She alleges that this is the second
case against Supervisor, in the same department at the facility. She reiterates that she is “looking
to get some compensation for all that [she] [has] had to endure with Supervisor.”

In support of her appeal for compensatory damages, Complainant has submitted letters from her
health care providers. A letter from her psychologist, dated May 1, 2017, indicates that she has
been treated at his clinic since March 9, 2017 for excessive stress and anxiety related to her work
environment and provides the opinion that her level of distress has occurred for a much longer
period of time, due to difficulties with her supervisor, and she will continue to receive care as
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needed for the immediate future. A letter from a physician, dated May 4, 2017, indicates that
Complainant has been under his care for severe anxiety for almost 2 years and is currently on a
combination of medication management and therapy for treatment.

A letter from the Agency, dated February 14, 2018, indicates that that Agency was currently
determining whether she was entitled to compensatory damages for the harms, injuries, or losses
caused by the discrimination. It provides that, although Complainant was informed of her
possible entitlement to compensatory damages, she has provided only limited information about
the harm suffered. It provides information on compensatory damages and asks that Complainant
submit any information that may assist the Agency in making a fair assessment of her claim. The
letter includes an attached worksheet for Complainant to provide details relating to compensatory
damages.

Complainant’s worksheet indicates she completed the form on February 27, 2018. It includes
Complainant’s medical records from March 9 and April 24, 2017 indicating sleep disturbances,
with symptoms including difficulty breathing, crying, difficulty sitting still; the duration was
primarily the last 2 years; the factor related to the onset of the problem was a toxic supervisor;
the frequency and severity of the problem was noted as she could still function, although it was
difficult; and psychosocial factors were a supportive husband and friends. The records also show
diagnoses of and treatment for anxiety disorder, from November 2, 2016 through October 13,
2017; they also show ongoing case management from October 13, 2016 through November 30,
3017. Complainant was released without limitations.

A letter from Complainant to the Agency, dated March 1, 2018, indicates that, since she was
subjected to discrimination, she has had to continuously seek the regular care of a medical doctor
and psychiatrist. She currently experiences stress, anxiety attacks, depression, and high blood
pressure and she did not have these medical conditions before being subjected to discrimination.
The discrimination also has had a negative impact on her marriage, as she and her husband are
now always arguing and never do things as they did before this. She is suffering “a great loss of
enjoyment.”

A letter from a licensed professional counselor (LPC), dated March 2, 2018, indicates that the
LPC is Complainant’s therapist and identifies Complainant’s treating physician. It provides that
Complainant has been diagnosed with major depressive disorder, recurrent, and with generalized
anxiety disorder and she participates in ongoing therapy sessions. Her depression and anxiety
stem from interactions with her supervisor. At work, she experiences racing thoughts, rapid
heartbeat, and feelings of impending doom. Her therapy focuses on mental strategies for
successfully getting through her workday and on destressing after work.

Complainant also submitted a medical payment history, including co-pays, from November 2017
to March 2018. She submitted a Summary of Explanation of Benefits from her health insurance
company, showing co-pays due. She also submitted receipts, showing co-pays for treatment in
2017 and 2018.

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A letter from the Agency, dated April 4, 2018, indicates that the information Complainant
provided relating to her damages did not seem relevant to her claim and appeared to relate to
injuries or illnesses experienced at other times. The letter advises that the Agency is willing to
offer Complainant another opportunity to submit information about her losses due to the
discrimination complaint. It also advises that, if they do not receive a response within 30 days,
then the Agency is considering issuing a damages award based on the alleged discriminatory
conduct but not factoring in any emotional harm. The letter includes an attached worksheet for
Complainant to provide details relating to compensatory damages.

Complainant submitted a letter, dated April 14, 2018, along with the worksheet, indicating that,
beginning in 2016, she sought help from a doctor for stress and depression relating to the
harassment; she was on a combination of medications; and she was still being treated by a
psychiatrist and a counselor. She described her psychological symptoms and their impact on her
daily life, noting that she lost her self-esteem and does not participate in activities like she used
to; after work, she goes home and goes to bed. She indicated that her husband is now taking over
her responsibilities in the home.

On April 4, 2018, the Agency submitted a brief in response to Complainant’s appeal. The brief
provides that, as relief, the Agency (1) agreed to take action ensuring that the misconduct did not
occur again and (2) submitted a damages questionnaire to Complainant, to which Complainant
did not respond. Therefore, the appeal is not ripe for appellate adjudication, as the Agency has
yet to determine the damages. The Agency requests that we dismiss the appeal without prejudice.

ANALYSIS AND FINDINGS

Standard of Review

As this is an appeal from a decision issued without a hearing, pursuant to 29 C.F.R.
§ 1614.110(b), the Agency's decision is subject to de novo review by the Commission. 29 C.F.R.
§ 1614.405(a). See Equal Employment Opportunity Management Directive for 29 C.F.R. Part
1614, at Chapter 9, § VI.A. (Aug. 5, 2015) (explaining that the de novo standard of review
“requires that the Commission examine the record without regard to the factual and legal
determinations of the previous decision maker,” and that EEOC “review the documents,
statements, and testimony of record, including any timely and relevant submissions of the
parties, and . . . issue its decision based on the Commission’s own assessment of the record and
its interpretation of the law”).

Compensatory Damages

Compensatory damages are awarded to compensate a complaining party for losses or suffering
inflicted due to the discriminatory act or conduct. See Equal Employment Opportunity
Management Directive for 29 C.F.R. Part 1614 at Chapter 11, § VII (citing Carey v. Piphus 435
U.S. 247, 254 (1978) (purpose of damages is to "compensate persons for injuries caused by the
deprivation of constitutional rights"). Types of compensatory damages include damages for past
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pecuniary loss (out-of-pocket loss), future pecuniary loss, and nonpecuniary loss (emotional
harm). See Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 at
Chapter 11, § VII.B; and Goetze v. Dep't. of the Navy, EEOC Appeal No. 01991530 (Aug. 23,
2001).

Pecuniary losses are out-of-pocket expenses incurred because of the agency’s unlawful action,
including job-hunting expenses, moving expenses, medical expenses, psychiatric expenses,
physical therapy expenses, and other such quantifiable expenses. Past pecuniary losses are losses
incurred prior to the resolution of a complaint through a finding of discrimination, or a voluntary
settlement, whereas future pecuniary damages are those likely to occur after the resolution of the
complaint. See Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614
at Chapter 11, § VII.B (Aug. 5, 2015) (internal citations omitted).

In a claim for pecuniary compensatory damages, a complainant must demonstrate, through
appropriate evidence and documentation, the harm suffered because of the agency’s
discriminatory action. Objective evidence in support of a claim for pecuniary damages includes
documentation showing actual out-of-pocket expenses with an explanation of the expenditure.
The agency is only responsible for those damages that are clearly shown to be caused by the
agency’s discriminatory conduct. To recover damages, a complainant must prove that the
agency’s discriminatory actions were the cause of the pecuniary loss. Id. (internal citations
omitted).

Non-pecuniary losses are losses that are not subject to precise quantification, including
emotional pain and injury to character, professional standing, and reputation. Id. 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 to 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 a
complainant concerning his or her 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.

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Statements from others including family members, friends, health care providers, 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.

With regard to a complainant’s claim for compensatory damages, the complainant has the burden
of proving the existence, nature and severity of the alleged emotional harm. A complainant must
also establish a causal relationship between the alleged harm and the discrimination. Absent such
proof of harm and causation, a complainant is not entitled to compensatory damages, even if
there were a finding of unlawful discrimination. The Commission has held that evidence of
emotional distress 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 both on and off
the job. Carle v. Dep’t of the Navy, EEOC Appeal No. 01922369 (Jan. 5, 1993). In addition to a
detailed statement by the individual claiming emotional distress damages, other evidence of such
damages could include statements by health care professionals, such as physicians,
psychologists, psychiatrists, therapists or counselors, as well as friends, family or coworkers who
could attest to the existence, nature and severity of appellant’s distress, its duration and
causation.

In the instant case, while the Agency’s final decision provides that the Agency will take action to
ensure a workplace free from discrimination and harassment and conduct mandatory training, it
does not address compensatory damages. Complainant filed her appeal prior to the Agency’s
request for evidence of her compensatory damages. Following her appeal, Complainant has
responded to the Agency’s request by producing evidence of both pecuniary and non-pecuniary
compensatory damages.

As a general rule, no new evidence will be considered on appeal unless there is an affirmative
showing that the evidence was not reasonably available previously. See Equal Employment
Opportunity Management Directive for 29 C.F.R. Part 1614, at Ch. 9, § VI.A.3 (Aug. 5, 2015).
However, given that the damages issue is considered only upon a finding of discrimination, the
Commission exercises its discretion to consider Complainant’s evidence and determines that the
issue of compensatory damages should be remanded for further consideration in accordance with
the order below.

CONCLUSION

Based on a thorough review of the record and the contentions on appeal, including those not
specifically addressed herein, we MODIFY the Agency’s final decision and REMAND the
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matter to the Agency for further processing in accordance with this decision and the ORDER
below.

ORDER

The Agency shall notify Complainant that she must submit any and all documentation regarding
her entitlement to compensatory damages, along with any additional information or affidavits
that she chooses to provide in support of her request for compensatory damages, within forty-
five (45) calendar days of the date this decision was issued.

The Agency shall issue a final decision addressing Complainant’s request for compensatory
damages, within forty-five (45) calendar days of the date the Agency receives documentation
regarding Complainant’s entitlement to compensatory damages.

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 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.
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 CFR § 1614.503(f) for enforcement by that agency.
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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 (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,
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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 13, 2019
Date