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.