Terri H. Campbell, Complainant,v.Alberto Gonzales, Attorney General, Department of Justice, (Federal Bureau of Prisons), Agency.

Equal Employment Opportunity CommissionSep 14, 2005
01a40538r (E.E.O.C. Sep. 14, 2005)

01a40538r

09-14-2005

Terri H. Campbell, Complainant, v. Alberto Gonzales, Attorney General, Department of Justice, (Federal Bureau of Prisons), Agency.


Terri H. Campbell v. Department of Justice (Federal Bureau of Prisons)

01A40538

September 14, 2005

.

Terri H. Campbell,

Complainant,

v.

Alberto Gonzales,

Attorney General,

Department of Justice,

(Federal Bureau of Prisons),

Agency.

Appeal No. 01A40538

Agency No. P-2000-0045

DECISION

Complainant timely initiated an appeal challenging the agency's award of

damages pursuant to a violation of Title VII of the Civil Rights Act of

1964 (Title VII), as amended, 42 U.S.C. � 2000e et seq. The appeal is

accepted pursuant to 29 C.F.R. � 1614.405. For the following reasons,

the Commission MODIFIES the agency's final decision.

In a final decision dated June 27, 2002, the agency found that complainant

was subjected to sexual harassment by her supervisor when he massaged her

shoulders through her coat while making sexually suggestive comments to

her on September 16, 1999; sent her five electronic mail messages with

sexual content in September 1999; and, made unspecified sexual comments

to her from the time he became her supervisor in January 1997 until

complainant reported the harassment to management in September 1999.

The final decision concluded that the agency failed to take adequate

measures to prevent the harassment and was therefore liable for damages

suffered by complainant. The decision noted that several employees had

complained to management about sexual remarks made by complainant's

supervisor before complainant was subjected to the harassment. The

decision further noted that the agency issued complainant's supervisor

a written warning in March 1999 directing him not to send sexual jokes

via electronic mail. �It is clear that the measures taken�-speaking to

[the harasser] in 1996 and giving him a written warning in 1999�-were

ineffective in preventing future harassment of female employees,� the

decision concluded. Complainant claimed she was entitled to $300,000.00

in non-pecuniary compensatory damages and submitted affidavits to the

agency from herself, her husband, and a friend in support of her claim.

In a final decision that is the subject of the instant appeal, the

agency found that complainant was entitled to $12,000.00 in non-pecuniary

compensatory damages.<0> The agency noted that it removed complainant's

harasser from her work area and reassigned him from supervising her

shortly after complainant reported the harassment in September 1999,

which it concluded was an effective corrective response that prevented

any further harassment. The agency noted that the harassing supervisor

was ultimately demoted to a non-supervisory position after the conclusion

of an investigation. The agency further concluded that a large amount of

complainant's emotional distress was related to her apprehensions about

participating in the EEO process, which is not compensable. The agency

further concluded that complainant's fear that the harasser would

retaliate against her was not based on a �real likelihood of danger.�

Complainant did not submit a brief or further evidence on appeal.

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 Transportation Co.,

424 U.S. 747, 764 (1976); Albemarle Paper Co. v. Moody, 422 U.S. 405,

418-19 (1975); Adesanya v. Postal Service, 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)

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), req. for recons. den.,

EEOC Request No. 05940927 (December 11, 1995); Enforcement Guidance:

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. Objective evidence of non-pecuniary compensatory

damages can include statements from the 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. 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. See Lawrence v. United States Postal Service,

EEOC Appeal No. 01952288 (April 18, 1996), citing Carle v. Department

of the Navy, EEOC Appeal No. 01922369 (January 5, 1993).

In an affidavit dated September 22, 2002, complainant stated that her

supervisor's harassment made her nervous and uncomfortable. She stated

that she stopped coming to work on days that she thought she might be

alone with her supervisor. She further stated that in the early weeks

and months of the harassment, she cried every day and even in September

2002, still felt persecuted and guilty. Complainant maintained that

over the previous three years, she has felt too stressed to work and

has had to call in sick or leave work early many times. She further

stated that since September 1999, she has gained 75 pounds because

she eats out of nervousness. Complainant also claimed that several

months after the incidents of September 1999, she experienced �horrible

nightmares.� Complainant further asserted that she has been concerned

about her safety because she knew her supervisor �paid a heavy price

for his actions and I am the most logical person for him to blame for

his losses.� She further stated that on many occasions, she imagined

her supervisor in the car behind her in traffic, and on at least two

occasions, was convinced her supervisor was following her.

Complainant's husband stated that the harassment has taken a serious toll

on complainant's life and placed �a lot of stress on our relationship.�

He stated that complainant shared details of her supervisor's harassing

conduct at first, but felt �trapped� because she feared reporting it

would lead to retaliation. He further stated that after the harassment

began, complainant experienced excessive weight gain, often cried, and

suffered from insomnia. �Essentially, I have witnessed a once joyful,

trusting, and motivated Terri become someone that rarely smiles and is

extremely cynical,� he stated.

A long-term friend of complainant stated that complainant often told

her how uncomfortable her supervisor made her feel. She stated that

after the harassment began, complainant transformed from a �usually

happy and jovial friend� into a �sad and withdrawn� person. She noted

that complainant has gained weight and is often depressed. She further

stated that complainant has expressed concern for her safety during

the ordeal and even considered getting a firearm to protect herself.

�Terri has been a completely different person since her dealings with

[the harasser],� she stated.

Upon review of this matter, we note that the agency determined that

a �great deal� of complainant's emotional distress resulted from her

participation in the EEO process. However, after a thorough review of

the record, we find that the agency's determination greatly inflated the

portion of complainant's emotional distress related to her participation

in the EEO process. Complainant's supporting statements regarding

compensatory damages reflect that the harassment complainant suffered

from January 1997 until September 1999 caused complainant great distress.

Moreover, while the supporting statements reflect that complainant was

conflicted over whether she should report the harassment to management and

file an EEO complaint, the underlying predominant cause of complainant's

anxiety was her supervisor's harassing conduct. We conclude that

the statements by complainant, her friend, and husband persuasively

demonstrate that she sustained substantial pain and suffering as a

result of being subjected to incidents of sexual harassment spanning

approximately two and a half years. Given all the above, we find

that complainant is entitled to $33,000.00 in non-pecuniary damages.

This amount takes into account the severity of the harm suffered,

and is consistent with prior Commission precedent. See Barrett

v. United States Postal Service, EEOC Appeal No. 01984091 (July 24,

2001) ($35,000 in non-pecuniary damages where denial of transfer led

to depression, sleeplessness and mental anguish); Turner v. Department

of Interior, EEOC Appeal No. 01956390 (April 27, 1998) ($40,000 in

non-pecuniary damages awarded where the agency subjected complainant to

sexual harassment and retaliation, which resulted in depression, anger,

anxiety, frustration, sleeplessness, crying spells, loss of self-esteem

and strained relationships).

Therefore, after a careful review of the record, we MODIFY the agency's

final decision and direct the agency to take remedial action in accordance

with this decision and the ORDER set forth below.

ORDER

Within sixty (60) calendar days after this decision becomes final, the

agency shall pay the complainant $33,000.00 in non-pecuniary compensatory

damages, less any amount of non-pecuniary compensatory damages already

paid to complainant.

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. The agency shall provide the

complainant with a copy of the report and supporting documentation.

ATTORNEY'S FEES (H0900)

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 (K0501)

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)

(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.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M0701)

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).

COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (S0900)

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:

______________________________ __September 14, 2005______

Carlton M. Hadden, Director Date

Office of Federal Operations

0 1We note that the agency issued a final decision dated October 9,

2003, awarding complainant $15,000.00 in compensatory damages on page

12 of the decision, but $12,000.00 in compensatory damages on page 13 of

the decision. In a letter dated October 15, 2003, the agency explained

that the award on page 12 was �inadvertent� and reissued the page with

an award of $12,000.00 in compensatory damages.