U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Roman G.,1 Complainant, v. Robert Wilkie, Secretary, Department of Veterans Affairs (National Cemetery Administration), Agency. Appeal No. 2019005894 Agency No. 200P-0907-2018103963 DECISION On August 12, 2019, Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission), pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s July 31, 2019, final decision concerning his 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. The Commission accepts the appeal in accordance with 29 C.F.R. § 1614.405. BACKGROUND During the relevant time, Complainant worked as a Cemetery Caretaker at the Agency’s Willamette National Cemetery in Portland, Oregon. In April 2014, Complainant began working for the Cemetery Caretaker Leader (hereinafter “Team Leader”). Team Leader was responsible for overseeing the cemetery’s Ground Operations Team but did not have any supervisory authority over Complainant. Shortly thereafter, Team Leader began sexually harassing Complainant on a daily basis. On June 5, 2018, Complainant filed an EEO complaint alleging he was subjected to a hostile work environment (sexual and non-sexual) based on sex, when from April 2014 and continuing: 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. 20190058942 1. management failed to intervene after Team Leader touched his genitals as he passed through a doorway; 2. Team Leader used a guide-pole and various other tools, such as shovel and rake handlers, to touch Complainant’s genitals; and 3. Team Leader “dry-humped” Complainant. The Agency noted that Complainant also attested to Team Leader playing “grab-ass” with him and other co-workers by “grabbing them on the genitals with the back of his hand”. According to Complainant, he saw Team Leader do this approximately 30 to 40 times. As for using shovel handles and guide poles to touch Complainant between his legs, Complainant stated this occurred five or six times a month. Moreover, Complainant saw Team Leader subject at least four other employees to this behavior. On at least three separate occasions, it was alleged Team Leader grabbed Complainant’s hips and rubbed his genitals against Complainant’s buttocks. At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation and notice of his right to request a hearing before an Equal Employment Opportunity Commission Administrative Judge (AJ). In accordance with Complainant’s request, on January 31, 2019, the Agency issued a final decision pursuant to 29 C.F.R. § 1614.110(b). In its decision, the Agency concluded that Complainant proved that the Agency subjected him to discriminatory harassment as alleged. Three witnesses observed the harassment of Complainant. One even stated that he too had been subjected to Team Leader’s actions. Further, the witness explained that despite being asked to stop touching employees, Team Leader continued. Three additional witnesses stated that although they did not see Team Leader harass Complainant, they did witness the same conduct by Team Leader directed to other employees. For more than four years, Complainant was subjected to sexual harassment by Team Leader. Depending on his job assignment, explained Complainant, the incidents occurred as often as several times a day, to once or twice every few weeks. With respect to management’s response, the Agency’s decision noted that following Complainant’s initial report to managers in April 2018, Team Leader’s sexual harassment ceased but non-sexual harassment continued. The Agency concluded that while management took prompt action to separate Complainant and Team Leader, as well as initiate an investigation, it did nothing to correct Team Leader’s conduct and ensure it would not happen again. Consequently, the Agency was found to be liable for Team Leader’s harassment. The decision granted Complainant restoration of leave, ordered EEO training for relevant management officials, and ordered a supplemental investigation regarding compensatory damages. On July 31, 2019, the Agency issued a decision on compensatory damages. First the Agency considered Complainant’s request for past pecuniary damages. The Agency denied any medical expenses as Complainant did not want to divulge his medical records and did not maintain receipts. In seeking payment for housing, automobile and travel expenses, Complainant provided monthly 20190058943 statements and government price charts. Reasoning that Complainant failed to show how the expenses were caused by the harassment, the costs were denied. As for future pecuniary damages, Complainant requested “all future legal matters be covered for future civil legal fees against these individuals” (i.e. Team Leader and “his known associates”). Instead of presenting quantifiable out-of-pocket expenses that are likely to occur, the Agency found Complainant simply offered his own subjective testimony regarding speculative losses. The Agency denied the request. Turning to non-pecuniary compensatory damages, Complainant sought “the monthly pay, tax deferred, of all individuals involved . . . who have failed to act appropriately . . . .” In support of his request, Complainant described his increased cigarette and alcohol consumption, depression, and insomnia. His step-mother, wife, and uncle reiterated the increase in smoking and drinking and also observed mood changes, anger, nervousness, and a short-temper in Complainant. The Agency found the witnesses “present a consistent and credible account of emotional distress suffered by Complainant” and established a nexus between the Agency’s conduct and Complainant’s harm. In determining an appropriate amount, the Agency considered Complainant’s pre-existing conditions (PTSD, hypertension, hyper-vigilance) and other factors impacting his emotional distress (OPM data breach and resulting identity theft). In conclusion, the Agency awarded Complainant $38,000.00 in non-pecuniary compensatory damages. Complainant filed the instant appeal. On appeal, he reiterates his request for “the monthly incomes of all involved”, which he calculates to be approximately one million dollars, but acknowledges that such awards are limited to $300,000.00. Additionally, Complainant highlights the Agency failure to relocate him or Team Leader, noting that Team Leader was only relocated after another individual also filed a complaint. 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”). Liability After a complainant has established a prima facie case of harassment, Complainant must establish a basis for imputing liability to the Agency. See Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982). In the case of co-worker harassment, as here, an agency is responsible for acts of harassment in the workplace where the agency (or its agents) knew or should have known of the 20190058944 conduct, unless it can show that it took immediate and appropriate corrective action. Enforcement Guidance on Harris v. Forklift Systems Inc., EEOC Notice No. 915.002 at 6 (Mar. 8, 1994). In this case, the Agency does not dispute its liability, as illustrated by its decision awarding compensatory damages. Nonetheless, we find it helpful to expand upon the Agency’s description of management’s response to the harassment before conducting an analysis of the harm suffered by Complainant. In the instant case, Complainant was subjected to sexual harassment by Team Leader for approximately four years. Following the death of his father, Complainant reported the harassment to the Executive Director during his April 2018 visit to the cemetery. The Executive Director, in turn, informed Complainant’s first-line supervisor (“Supervisor”) “to handle” the situation. Supervisor contacted Human Resources, who suggested that he interview Complainant’s co- workers. According Supervisor, when he asked the HR official if Team Leader could be removed, HR raised concerns regarding the appearance of retaliation against Team Leader since Team Leader was the subject of an Administrative Investigations Board (AIB) investigation that pre- dated the alleged harassment. While “it was obvious” to Supervisor that Team Leader should have been moved, he lacked the authority to transfer or move employees. The Supervisor attested that all he was able to do was to provide some separation by moving Complainant to another assignment. According to Supervisor, “[a]s more allegations came in, I also moved those employees as far away from [Team Leader] as I could.” The record indicates that, aside from Supervisor’s efforts, no action was taken by management in the weeks that followed Complainant’s reporting. It was not until Complainant met with an EEO Counselor and the Counselor contacted management, on May 17, 2018, that any actions were taken.2 Those actions were inadequate. HR simply advised “moving Complainant, EEO training for the facility, and advising on situational awareness.” One upper-management official attested that Team Leader was never disciplined, “never sent home or anything. Nothing has happened to him.” We find that management did not take appropriate corrective action. This occurred despite the fact that during Executive Director’s April 2018 visit, he met with managers and it was discussed that three employees (two males and one female) had alleged sexual harassment by Team Leader. The HR official acknowledged that during the AIB investigation of Team Leader he was “inundated with claims against [Team Leader] from numerous parties,”, but disregarded them as possible reprisal for Team Leader’s whistle-blower activity in the AIB. Moreover, the HR official attested that the alleged actions were “commonplace for years as guy pranks or what guys do.” This “boys will be boys” attitude, expressed by an HR official, demonstrates a hostile work environment that was easily discernable and should have been recognized and acted upon by management. Likewise, given the severity, frequency, and duration of Team Leader’s conduct, not only toward Complainant, but others as well, the Agency should have known of the sexual harassment and taken swift, appropriate, and effective action. It did not, resulting in further harm to Complainant. 2 According to the formal complaint, the sexual harassment continued until May 30, 2018. Thereafter, Team Leader continued to subject Complainant to non-sexual harassment. 20190058945 Compensatory Damages When discrimination is found, the agency must provide the complainant with a remedy that constitutes full, make-whole relief to restore him as nearly as possible to the position he would have occupied absent the discrimination. See, e.g., Franks v. Bowman Transp. Co., 424 U.S. 747, 764 (1976); Albemarle Paper Co. v. Moody, 422 U.S. 405, 418-19 (1975); Adesanya v. U.S. Postal Serv., 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 Title VII of the Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. § 2000e 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). Compensatory damages do not include back pay, interest on back pay, or any other type of equitable relief. 42 U.S.C. § 1981a(b)(2). In West v. Gibson, 527 U.S. 212 (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 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. Dep't of the Navy, EEOC Appeal No. 01934157 (July 22, 1994), req. for reconsideration denied, EEOC Request No. 05940927 (Dec. 11, 1995); 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. Pecuniary Compensatory Damages Pecuniary losses include quantifiable out-of-pocket expenses that are incurred as a result of the discriminatory conduct. To recover damages, the complaining party must prove that the employer's discriminatory act or conduct was the cause of his loss. Enforcement Guidance: Compensatory and Punitive Damages Available Under Section 102 of the Civil Rights Act of 1991 (Enforcement Guidance), EEOC Notice No. 915.002, at 8 (July 14, 1992). When asked about his out-of-pocket expenses, Complainant stated that he did not keep receipts. The only costs reflected in the record are March 2019 statements regarding his mortgage and his auto loan. We agree with the Agency, that Complainant has failed to establish any nexus between these expenses and the harassment. Complainant is not entitled to pecuniary compensatory damages. Non-pecuniary Compensatory Damages Non-pecuniary losses are losses that are not subject to precise quantification, i.e., emotional pain, suffering, inconvenience, mental anguish, loss of enjoyment of life, injury to professional standing, 20190058946 injury to character and reputation, injury to credit standing, and loss of health. See EEOC Notice No. 915.302, Enforcement Guidance on Compensatory and Punitive Damages Available Under Section 102 of the Civil Rights Act of 1991, at 10 (July 14, 1992). 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 Complainant concerning his 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. 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. Moreover, the Commission has long held that a complainant's own testimony, along with the circumstances of a particular case, can suffice to sustain his burden in recovering compensatory damages for emotional harm. The more inherently degrading or humiliating the agency's action is, the more reasonable it is to infer that a person would suffer humiliation or distress from that action. Therefore, somewhat more conclusory evidence of emotional distress will be acceptable to support an award for emotional damages. See, e.g., Lawrence v. U.S. Postal Serv., EEOC Appeal No. 01952288 (Apr. 18, 1996). An award of non-pecuniary, compensatory damages should reflect the extent to which the Agency's discriminatory action directly or proximately caused the harm, as well as the extent to which other factors also caused the harm. See Johnson v. Dep't of the Interior, EEOC Appeal No. 01961812 (June 18, 1998). It is the complainant's burden to provide objective evidence in support of his claim and proof linking the damages to the alleged discrimination. Papas v. U.S. Postal Serv., EEOC Appeal No. 01930547 (Mar. 17, 1994); Mims v. Dep't of the Navy, EEOC Appeal No. 01933956 (Nov. 23, 1993). Here, Complainant attested that his drinking and smoking increased dramatically because of the sexual harassment. He became more angry, short-tempered, and depressed. Complainant explained that he was verbally abusive to his wife and critical of his son. He was socially distant with friends 20190058947 and family. His pre-existing conditions (PTSD, hyper-vigilance, and hyper-tension) were aggravated by the harassment. For example, Complainant had to always modify his route to work or the grocery store. If he heard a noise at home, he would walk the house, check camera feeds on his phone, and check the security lights. Letters from Complainant’s wife, mother, step-mother and uncle reiterated the emotional toll he suffered. They each confirmed his increased smoking and drinking. His step-mother, explained that Complainant changed from “an easy-going, spur of the moment, out and about person, to someone who would rather stay home.” Visits to him have to planned in advance, not spontaneous. Once “laid back and carefree”, Complainant’s wife described his swift mood swings from happy to “upset and agitated.” The Agency has already conceded that these witnesses “present a consistent and credible account of emotional distress suffered by Complainant” and establish a nexus between the Agency’s conduct and Complainant’s harm. After careful consideration of the evidence of record, we find an award of $75,000 for non-pecuniary compensatory damages is appropriate. This amount takes into consideration the nature of the discriminatory acts, the severity of the physical and emotional harm suffered, the length of time Complainant suffered the harm, and is consistent with prior Commission precedent. See Emmett W. v. Dep't of Agric., EEOC Appeal No. 0120143098 (May 3, 2016) (awarding $80,000 where complainant experienced exacerbated PTSD, depression, sleeplessness, anger, stress, weight loss, familiar strain, and humiliation); Mardell B. v. Soc. Sec. Admin., EEOC Appeal No. 0120172035 (Oct. 31, 2017) (awarding $70,000 where complainant suffered exacerbated medical conditions, became depressed, suffered emotionally, and experienced physical changes because of the discrimination); Crear v. Department of Veterans Affairs, EEOC Appeal No. 07A50079 (January 26, 2006) ($70,000 awarded in sex-based harassment case where complainant experienced anger, worry, embarrassment, feelings of disrespect and degradation, sleep problems, hair loss, and problems with her husband and children). CONCLUSION Based on a thorough review of the record, we hereby MODIFY the Agency’s decision on compensatory damages. The matter is REMANDED to the Agency in accordance with this decision and the ORDER below. ORDER To the extent it has not already done so, the Agency is ORDERED to take the following action within forty-five (45) calendar days of the date this decision is issued: (1) Provide Complainant with payment of $75,000.00 in compensatory damages. (2) Restore any and all leave taken by Complainant as a result of the harassment. (3) Provide at least eight (8) hours of in-person training for the management officials involved in this matter, particularly regarding recognizing a hostile work 20190058948 environment and addressing management’s responsibilities with respect to eliminating harassment in the workplace. (4) Shall consider taking disciplinary action against Team Leader, who was found to have subjected Complainant to sexual harassment. The Agency shall report its decision. If the Agency decides not to discipline Team Lead, it shall set forth the reason(s) for its decision not to impose any additional discipline. POSTING ORDER (G0617) The Agency is ordered to post at its Willamette Cemetery, located in Portland, Oregon, copies of the attached notice. Copies of the notice, after being signed by the Agency's duly authorized representative, shall be posted both in hard copy and electronic format by the Agency within 30 calendar days of the date this decision was issued, and shall remain posted for 60 consecutive days, in conspicuous places, including all places where notices to employees are customarily posted. The Agency shall take reasonable steps to ensure that said notices are not altered, defaced, or covered by any other material. The original signed notice is to be submitted to the Compliance Officer as directed in the paragraph entitled "Implementation of the Commission's Decision," within 10 calendar days of the expiration of the posting period. The report must be in digital format and must be submitted via the Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). 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 20190058949 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 C.F.R. § 1614.503(f) for enforcement by that agency. 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 (T0610) This decision affirms the Agency’s final decision/action in part, but it also requires the Agency to continue its administrative processing of a portion of your complaint. You have the right to file a civil action in an appropriate United States District Court within ninety (90) calendar days from 201900589410 the date that you receive this decision on both that portion of your complaint which the Commission has affirmed and that portion of the complaint which has been remanded for continued administrative processing. 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 your appeal with the Commission, until such time as the Agency issues its final decision on your complaint. 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 (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 31, 2020 Date
