Theresa Rivera, Complainant, F. Whitten Peters, Acting Secretary, Department of the Air Force, Agency.

Equal Employment Opportunity CommissionMay 31, 2000
01974870 (E.E.O.C. May. 31, 2000)

01974870

05-31-2000

Theresa Rivera, Complainant, F. Whitten Peters, Acting Secretary, Department of the Air Force, Agency.


Theresa Rivera v. Department of the Air Force

01974870

May 31, 2000

Theresa Rivera, )

Complainant, )

) Appeal No. 01974870

) Agency Nos. AR000940046;

) AL900940107

F. Whitten Peters, ) Hearing No. 360-93-8230X

Acting Secretary, )

Department of the Air Force, )

Agency. )

)

DECISION

On May 29, 1997, complainant<1> timely appealed to the Equal Employment

Opportunity Commission (EEOC) from a final agency decision (FAD)

which determined that she was not entitled to compensatory damages

for pecuniary and nonpecuniary harm proximately caused by the sexual

harassment discrimination found by the EEOC in violation of Title VII of

the Civil Rights Act of 1964, as amended, 42 U.S.C. �2000e et seq.<2>

We accept complainant's appeal in accordance with 29 C.F.R. �1614.504

and EEOC Order No. 960, as amended. For the reasons that follow, the

matter is AFFIRMED.

ISSUE PRESENTED

The issue presented is whether the agency erred in finding in its FAD

that complainant was not entitled to compensatory damages.

CONTENTIONS ON APPEAL

Complainant appeals the agency's finding that she was not entitled

to compensatory damages due to sex-based and sexually-harassing

discriminatory hostile work environment, as found by the Commission.

Complainant also argues that the agency has failed to fully implement the

remedial measures ordered by the Commission in response to its finding

of discrimination.

BACKGROUND

Complainant initially alleged she was discriminated against on the

basis of sexual harassment and reprisal when: (1) she was not selected

for a temporary position, or later a permanent position, as a GS-334-13

Supervisory Computer Analyst; (2) she was removed from her supervisory

position following a performance feedback session on August 3, 1991, when

she objected to her supervisor's (AS) sexual innuendos and jokes; and

(3) she withdrew her name from consideration for a permanent Supervisory

Computer Analyst position, GS-334-13, on October 30, 1991, due to the

AS's sexual harassment of her, and her belief that she would not be

selected due to her prior EEO activities.

Following a hearing, the Administrative Judge (AJ) found that

complainant established a prima facie case of discriminatory sex-based

and sexually-harassing hostile work environment regarding her temporary

nonselection and declination for consideration and reassignment. However,

the AJ ultimately found that there was insufficient evidence from which

to conclude that the agency's actions were severe and pervasive enough

to create an abusive environment for complainant sufficient to rise to

the level of a hostile environment prohibited by Title VII. As such,

the AJ recommended a finding of no discrimination against complainant

based on sex (female), sex based and hostile work environment sexual

harassment or reprisal regarding her allegations. The agency's FAD

adopted the AJ's Recommended Decision.

Pursuant to complainant's appeal, the EEOC issued a decision in which we

reversed the FAD in part and affirmed the FAD in part. The Commission

concluded that complainant was subjected to a discriminatory sex-based

and sexually-hostile work environment, and that the harassing official

attempted to interfere with the EEO process by intimidating a witness.

However, the Commission found that complainant failed to establish

that she was discriminated against when she was removed from her

supervisory position or when she withdrew her name from consideration

for the Supervisory Computer Analyst position. Due to the finding of

discrimination, the Commission ordered the agency to award attorney's fees

in accordance with 29 C.F.R. �1614.501, and, as complainant requested

compensatory damages for the harassment on appeal, ordered the agency

to determine which incidents of hostile environment harassment occurred

on or after November 21, 1991, and whether complainant remained in the

general work environment so as to have been affected by incidents which

may have occurred on or after November 21, 1991. See Marr v. Department

of the Air Force, EEOC Appeal No. 01941344 (June 27, 1996). Finally,

the Commission ordered the agency to afford complainant the opportunity to

submit evidence of compensatory damages for any pecuniary or nonpecuniary

losses she may have sustained due to hostile environment harassment

which may have occurred on or after November 21, 1991. Complainant then

requested $4,488.95 for pecuniary losses (medical bills) and $300,000.00

for nonpecuniary losses (emotional distress and humiliation), for a

total compensatory damages request of $304,488.95.

In its Supplemental Decision on Compensatory Damages, the agency concluded

that the preponderance of the evidence established that after September 8,

1991, complainant was not in a general work environment where she could

have been affected by incidents of harassment which may have occurred

on or after November 21, 1991. The agency further concluded that as

the evidence supported a finding that no incidents of sexual harassment

occurred on or after November 21, 1991, complainant was not entitled to

compensatory damages.

ANALYSIS AND FINDINGS

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; the extent, nature, and severity of the harm;

and the duration or expected duration of the harm. Rivera v. Dept. of the

Navy, EEOC Appeal No. 01934157 (July 22, 1994); Compensatory and Punitive

Damages Available under Section 102 of the Civil Rights Act of 1991, EEOC

Notice No. N 915.002 (July 14, 1992), at 11-12, 14. Compensatory damages

may be awarded for all pecuniary and non-pecuniary losses post-dating

November 21, 1991, the effective date of the Civil Rights Act of 1991. See

Landgraf v. USI Film Products, 114 S.Ct. 1483 (1994).

The agency was initially directed to investigate and determine whether

any incidents of hostile environment harassment occurred after November

21, 1991, and whether complainant remained sufficiently in the general

work environment and under the supervision of the harassing supervisor

to have been affected by incidents which may have occurred on or after

November 21, 1991. In this regard, we note that an agency employee stated

that after September 8, 1991, complainant was reassigned from her usual

position, which removed her from the harassing supervisor's supervision,

and subsequently complainant has had no incidents of harassment under her

new supervisors. While complainant asserts that the harassing supervisor

substituted for her Director and Commander after her reassignment, and

was thus in her line of supervision, complainant has failed to establish

on which dates the supervisor in question substituted for her Director

and Commander, or how this substitution actually affected the terms

and conditions of her employment. As such, we agree with the agency's

finding that complainant was not exposed to a hostile work environment on

or after November 21, 1991, such that compensatory damages are warranted.

In addition, a review of the record establishes that complainant

failed to demonstrate that incidents of discriminatory sex-based and

sexually-hostile work environment occurred on or after November 21, 1991.

While complainant asserts that she experienced the above-referenced

discrimination during the processing of her EEO complaint, the agency

correctly held that compensatory damages do not include compensation

for the emotional stress arising from participation in EEO matters.

Roundtree v. Department of Agriculture, EEOC Appeal No. 05950919 (February

15, 1996). In addition, the Commission's prior decision noted that there

was no discrimination or retaliation involved in complainant's removal

of her name from consideration for the Supervisory Computer Program

Analyst position on October 30, 1991. Furthermore, we note that the

Commission has held that compensatory damages are not retroactively

applied to discriminatory conduct that occurred prior to November

21, 1991. Landgraf, supra. As a result, we find that complainant has

failed to demonstrate by a preponderance of the evidence that she is

entitled to compensatory damages and AFFIRM the agency's Decision on

Compensatory Damages.

However, we note that pursuant to our previous finding that complainant

was subjected to sex based and sexually hostile work environment

discrimination, to the extent it has not complied with the Commission's

prior Order, the agency must provide complainant with the relief ordered,

including restoration of sick or annual leave complainant was compelled

to take due to the hostile work environment, payment of attorney's fees

and filing of compliance reports by the agency.

ORDER

I. To the extent it has not already done so, the agency is ORDERED to

take the following remedial actions:

(1) The agency shall take whatever actions it deems necessary, including

but not limited to the actions set forth below, to ensure that neither

complainant nor any other employee is subjected to a discriminatory

hostile work environment in the future and to ensure that interference

in the EEO process does not reoccur.

(2) The agency is to review the matter giving rise to this complaint,

including the allegation of interference with the EEO process discussed

above, and to determine whether additional disciplinary action against the

harassing supervisor is appropriate. The agency shall record the basis

for its decision to take or not to take such actions, and to report the

same to the Commission in the same manner as implementation of the rest

of the Commission decision is reported.

(3) The agency is ORDERED to restore to complainant any sick or annual

leave she was compelled to take in direct response to the hostile work

environment caused by the sexual and sex based harassment. Complainant

may have also taken sick or annual leave in avoidance of the hostile

work environment, for which she should be reimbursed.

(4) The agency is ORDERED to take immediate steps to fully inform the

harassing supervisor on the current state of the law regarding employment

discrimination, especially discriminatory harassment and the goals behind

the law requiring equal employment opportunities for all.

(5) The agency is ORDERED to take immediate steps to fully inform

agency management on the current state of the law regarding employment

discrimination, especially sex-based and sexual harassment and the

responsibilities of managers who supervise individuals engaging in

unlawful harassment.

(6) Complainant shall not be required to work under the chain of command

of the harassing supervisor. If this has not already been accomplished,

then the agency shall accomplish this by affording complainant an optional

transfer to an equivalent position in another unit or if she declines

such a transfer, by transferring the harassing supervisor.

(7) The agency is ORDERED to pay reasonable attorney's fees involved in

the processing of appellant's EEO complaint.

(8) The agency is further ORDERED to submit a report of compliance,

as provided below. The report shall include supporting documentation of

each element of corrective action, as set forth in this Order.

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 64

Fed. Reg. 37,644, 37,659-60 (1999) (to be codified and hereinafter

referred to as 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 64 Fed. Reg. 37,644, 37,659 (1999)

(to be codified and hereinafter referred to as 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 64

Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter referred

to as 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 64 Fed. Reg. 37,644, 37,661 (1999) (to be codified and hereinafter

referred to as 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:

May 31, 2000

Date Carlton M. Hadden, Acting Director

Office of Federal Operations

1 We note that complainant changed her name from Theresa Marr to Theresa

Rivera on December 15, 1993.

2 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 64 Fed. Reg. 37,644 (1999), where applicable, in deciding the

present appeal. The regulations, as amended, may also be found at the

Commission's website at www.eeoc.gov.