01a40538r
09-14-2005
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.