0120081650
11-10-2009
Yonna D. Diggs, Complainant, v. Ray Mabus, Secretary, Department of the Navy, Agency.
Yonna D. Diggs,
Complainant,
v.
Ray Mabus,
Secretary,
Department of the Navy,
Agency.
Appeal No. 0120081650
Hearing No. 420-2007-00062X
Agency No. DON 05-00204-01111
DECISION
On February 21, 2008, complainant filed an appeal from the agency's
February 15, 2008 final order concerning her 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. For the following reasons, the Commission MODIFIES the
agency's final order.
During the period at issue, complainant was employed as a Spouse
Employment Specialist, GS-01-09, from June 1999 to April 8, 2005, with
the Fleet and Family Support Center at the Naval Air Station in Pensacola,
Florida.
On October 20, 2005, complainant filed an EEO complaint wherein she
claimed that she was subjected to a hostile work environment on the
bases of race (African-American), sex (female), color (light brown
skin), and in reprisal for prior protected EEO activity under Title VII.
Complainant claimed that the discrimination occurred from approximately
January 2000 to approximately April 2005, including her receiving a
Notice of Removal on March 31, 2005.
At the conclusion of the investigation, complainant was provided with a
copy of the report of investigation and notice of her right to request
a hearing before an EEOC Administrative Judge (AJ). Complainant timely
requested a hearing and the AJ held a hearing on September 25-28 2007,
and issued a bench decision on September 28, 2007.
The AJ found that the agency discriminated against complainant on
the bases of sex, race, color, and reprisal when she was harassed by
a coworker. The AJ observed that complainant established that the
incidents of harassment by the female coworker were sufficiently severe
and pervasive to cause a hostile work environment. The AJ stated that
the coworker asked complainant to go out with her in March 2001 and
complainant rebuffed her. Subsequent to the rejection, the coworker
was found to have talked adversely about complainant to complainant's
coworkers and complainant's clients, followed complainant, and required
individuals who were scheduled to see complainant not be screened at
the front desk. The AJ found that although complainant's second-line
supervisor denied that she was aware that complainant had raised
allegations of sexual harassment, this testimony was not credible. The AJ
found that agency management knew of the harassment and failed to take
prompt remedial action to prevent future harassment. According to the AJ,
although the coworker was counseled in mid 2003 concerning her conduct,
when complainant continued to complain concerning the coworker's conduct,
the agency took no further action to prevent the future harassment.
The AJ also found that the proposed notice of removal was not part of
the harassment as proper procedures were followed concerning the way
that the matter was handled.1
The AJ issued complainant an award of $20,000.00 in compensatory damages.
In awarding compensatory damages, the AJ noted that complainant's husband
and a son-in-law who lived with them testified that complainant suffered
from stress, headaches, high blood pressure, and panic attacks based on
her working under stressful conditions and being discriminated against
while working for the agency. The AJ also ordered the agency to conduct
training on sexual harassment, racial harassment, and retaliation for the
individuals currently working in the Fleet and Family Service Center.
On December 6, 2007, the AJ issued complainant an award of $73,341.00
in attorney's fees and $571.34 in costs.
The agency subsequently issued a final order fully implementing the
AJ's decisions. However, the amount awarded in attorney's fees was
$71,863.50.
On appeal, complainant contends that she was subjected to a hostile work
environment from 2001 through 2005 and that she suffered profoundly
with multiple hospital visits and a lack of ability to function in
her private life. Complainant maintains that an appropriate award of
non-pecuniary damages is in the range of $100,000.00. Complainant argues
that subsequent to the rejection of her coworker's date request, the
coworker attempted to sabotage and discredit her career over the next four
years. According to complainant, over the next four years, the coworker
watched and recorded in a written notebook her movements in the office,
physically followed her within a close distance when she left her office
to go to another area of the building, told clients and coworkers that
she did not care about her job and that they could do her job and also
referred clients to other counselors stating that complainant could
not do her job or help them. Complainant maintains that the coworker
physically bumped her as she was walking from place to place over the
course of four years and continually talked about her hair, cologne and
dress during this period. Complainant notes that a coworker testified
that she saw the coworker bump into her at least three or four times a
week in the hallway for at least two years.
Complainant states that her husband testified that before 2000, she
was happy with her work and in good health. Complainant states that her
husband testified that she had trouble sleeping, not eating, mood swings,
anxiety attacks, high blood pressure, chest pains, depression, headaches,
shingles, regret when going to work and crying spells during the period
of discrimination. Complainant states that due to the stress of the
harassment, on several occasions she threw up before going to work.
Complainant states that her husband had to take her to the hospital
for panic attacks. Complainant contends that her work as a family
counselor was constantly disrupted by intentional interference with her
schedule. She states in her private life, she was profoundly disturbed
and reduced to an inability to care for herself, her children, or her
husband. Complainant notes that her son-in-law and a coworker also
testified as to the problems she suffered due to the discrimination.
Complainant also argues that relief should include recommended discipline
and training in sexual harassment, racial harassment and in reprisal for
the second-level supervisor. Complainant notes that this official is no
longer at the Pensacola Base. Finally, complainant notes that an error
was made in the award of attorney's fees in the amount of $1,477.50.
Complainant states that the AJ stated that her counsel would be awarded
$73,341.00 in attorney's fees but then the subsequent paragraph omitted
the $1,477.50 of that total that related to her attorney's travel time
and administrative and/or paralegal time spent.
In response, the agency notes that although complainant raised three
bases for her appeal, it was limiting its arguments to addressing
complainant's request for higher compensatory damages. The agency
asserts that the amount of compensatory damages awarded complainant
was comparable to awards in similar cases. The agency notes that the
Commission awarded $20,000.00 in a case filed in 1994 where the employee
had suffered egregious sexual harassment over a four-year period. The
agency cites another case where compensatory damages of $25,000.00
was awarded for harm that the complainant experienced as a result of
coworker sexual harassment between 1991 and 1994. The agency asserts
that the cases cited by complainant in support of a higher damage award
are distinguishable from the instant matter. The agency argues that in
these cases, the severity and or length of harm suffered by the various
complainants were more severe than the harm suffered by complainant. The
agency notes that in six of the seven cases cited by complainant, medical
evidence of one or more psychiatrists/psychologists was presented showing
the extent of the harm suffered by each of the complainants. The agency
states in contrast, the medical evidence presented by complainant is
very sparse. The agency notes that complainant had tests for headaches,
but her physicians found nothing wrong and that she was treated for high
blood pressure and stress with Zoloft and Xanax. The agency notes that
complainant's physician advised her to seek psychiatric counseling for
anxiety and depression. The agency states the complainant never sought
help from a psychiatrist or counselor, although she did seek help from
her minister and church and drew strength from her religion.
The agency asserts that the record contains no testimony that complainant
was ever committed to a hospital during the period at issue. The agency
notes that complainant continued to work throughout the period in
question as she traveled extensively and taught classes. Additionally,
the agency states that complainant was employed in a new job within a
couple of weeks of leaving the agency.
Pursuant to 29 C.F.R. � 1614.405(a), all post-hearing factual findings by
an AJ will be upheld if supported by substantial evidence in the record.
Substantial evidence is defined as "such relevant evidence as a reasonable
mind might accept as adequate to support a conclusion." Universal
Camera Corp. v. National Labor Relations Board, 340 U.S. 474, 477 (1951)
(citation omitted). A finding regarding whether or not discriminatory
intent existed is a factual finding. See Pullman-Standard Co. v. Swint,
456 U.S. 273, 293 (1982). An AJ's conclusions of law are subject to a
de novo standard of review, whether or not a hearing was held.
An AJ's credibility determination based on the demeanor of a witness or
on the tone of voice of a witness will be accepted unless documents or
other objective evidence so contradicts the testimony or the testimony so
lacks in credibility that a reasonable fact finder would not credit it.
See EEOC Management Directive 110, Chapter 9, � VI.B. (November 9, 1999).
Initially, we note that neither party challenges the AJ's finding of
discrimination and we AFFIRM that determination herein.
Section 102(a) of the 1991 Civil Rights Act authorizes an award of
compensatory damages for post-Act pecuniary losses, and for non-pecuniary
losses, such as, but not limited to, emotional pain, suffering,
inconvenience, mental anguish, loss of enjoyment of life, injury to
character and reputation, and loss of health. See West v. Gibson, 527
U.S. 212 (1999). In this regard, the Commission has authority to award
such damages in the administrative process. Compensatory damages do not
include back pay, interest on back pay, or any other type of equitable
relief authorized by Title VII. To receive an award of compensatory
damages, 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. Department of the Navy, EEOC Appeal No. 01934157 (July 22,
1994), request for reconsideration denied, EEOC Request No. 05940927
(December 11, 1995); EEOC's Enforcement Guidance: Compensatory and
Punitive Damages Available Under Section 102 of the Civil Rights
Act of 1991, EEOC Notice No. 915.002 at 11-12, 14 (July 14, 1992)
("Guidance").
The Commission notes that for a proper award of non-pecuniary damages,
the amount of the award should not be "monstrously excessive" standing
alone, should not be the product of passion or prejudice, and should be
consistent with the amount awarded in similar cases. A complainant's
testimony may be solely sufficient to establish emotional harm. EEOC
Guidance: Compensatory and Punitive Damages Available Under Section 102 of
the Civil Rights Act of 1991, EEOC Notice N-915.002 (July 14, 1992) at 6.
Statements from others, including family members, friends, and health
care providers could address the outward manifestations of the impact
of the discrimination on the complainant. Id. The complainant could
also submit documentation of medical or psychiatric treatment related
to the effects of the discrimination. Id. Non-pecuniary damages must
be limited to the sums necessary to compensate the injured party for
the actual harm and should take into account the severity of the harm
and the length of time the injured party has suffered from the harm.
Carpenter v. Department of Agriculture, EEOC Appeal No. 01945652 (July
17, 1995).
Based on the record, the Commission finds that the award of $20,000.00
is insufficient to remedy the harm that the agency's actions caused
complainant. However, we are also unpersuaded by complainant's
argument that a $100,000.00 non-pecuniary, compensatory damages award
is reasonable. We find that $40,000.00 is an appropriate amount
as complainant presented sufficient evidence to establish that she
suffered significant emotional and physical problems as a result of
the discriminatory hostile work environment. See Cain v. Department of
Commerce, EEOC Appeal No. 07A40022 (March 18, 2005) ($50,000.00 awarded
in non-pecuniary damages where complainant experienced enormous stress
and health issues, was hospitalized for problems related in part to
discriminatory conduct, and experienced difficulties with shingles during
the period of times she was harassed); Campbell v. Department of Justice,
EEOC Appeal No. 01A40538 (September 14, 2005) ($33,000.00 awarded in
non-pecuniary damages where complainant suffered stress, crying episodes,
gained weight, felt concerned about her safety, experienced "horrible
nightmares" as a result of agency harassment). The record reveals that
during the period of discrimination complainant experienced headaches,
depression, panic attacks, shingles, loss of appetite, mood swings,
trouble sleeping, high blood pressure, crying episodes, on occasion
she threw up before going to work, and she stopped cooking and taking
care of her grandson. Complainant endured a discriminatory hostile work
environment for approximately four years. Agency management had notice
early in that period that complainant's coworker was harassing her yet
it did not undertake a concerted effort to remedy the situation. It is
clear that an award of $40,000.00 is appropriate since it is based on
the harm experienced as a result of the agency's actions, and it takes
into account the severity of the harm and the quite lengthy period of
time that complainant experienced the harm.
With regard to complainant's request for discipline and training for
the second-level supervisor, we observe that this official no longer
works at the Pensacola Base. However, we note complainant contends,
without dispute from the agency, that the second-level supervisor is
still employed with the agency facility in Sasabo, Japan. We find
the agency is within its discretion as to whether this official should
receive discipline. Therefore, we order the agency to consider whether
this individual should receive discipline. Additionally, with regard
to training, in light of the fact that this official is still within
the employ of the agency and that she failed to address the situation
that complainant was experiencing despite being aware of it, we find
that training is warranted as provided in the Order herein.
As for the attorney's fees issue raised on appeal by complainant,
it is evident upon review of the AJ's Order awarding attorney's fees
that the AJ inadvertently omitted in the final paragraph the $1,477.50
that she awarded elsewhere in the Order. In her Order, the AJ ordered
payment for 208.3 hours of work done by complainant's attorney at a rate
of $345.00 per hour, for a total of $71,863.50. The text of the AJ's
Order also awarded $1,477.50 as payment for complainant's attorney's
eight hours of travel time at a rate of $172.50 per hour ($1,380.00)
and 1.3 hours of administrative and/or paralegal time spent at a rate of
$75.00 ($97.50). Moreover, the AJ awarded $571.34 in costs. However,
in the final paragraph of the Order, the AJ awarded $71,863.50 in fees
and $571.34 in costs, inadvertently omitting the $1,477.50 she found
was appropriate for travel time and administrative work. The agency has
presented no argument challenging an award for those items. We consider
this award appropriate and therefore find the overall attorney's fees
award is $73,341.00 in fees ($71,863.50 + $1,477.50) and $571.34 in
costs.
Accordingly, the agency's decision is MODIFIED. The agency is directed
to comply with the Order herein.
ORDER
To the extent the agency has not already done so, it is ordered to take
the following remedial actions:
1. Within 60 days of the date this decision becomes final, the agency
shall conduct at least three hours of training on sexual harassment,
racial/color harassment and reprisal for the individuals who currently
work in the Fleet and Family Service Center and for the individual
who served as complainant's second-level supervisor during part of the
period of discrimination. The agency shall address these employees'
responsibilities with respect to eliminating discrimination in the
workplace and especially to those in a supervisory or managerial
position.
2. The agency shall take appropriate preventative steps to ensure that
no employee is subjected to sexual harassment, racial/color harassment
or reprisal harassment and to ensure that appropriate steps are taken
immediately after management is notified of any such harassment.
3. Within 60 days of the date this decision becomes final, the agency
shall consider taking disciplinary action against the management officials
identified as being responsible for the discrimination (complainant's
first and second-level supervisors at the time of the discrimination)
perpetrated against complainant. The Commission does not consider
training to be a disciplinary action. The agency shall report its
decision to the Commission and specify what, if any, actions were taken.
If the agency decides not to take disciplinary action, it shall set
forth the reasons for its decision not to impose discipline.
4. To the extent it has not already done so, within 60 days of the date
this decision becomes final, the agency shall issue to complainant an
award of $73,341.00 in attorney's fees and $571.34 in costs.
POSTING ORDER (G0900)
The agency is ordered to post at its Pensacola, Florida facility copies
of the attached notice. Copies of the notice, after being signed by the
agency's duly authorized representative, shall be posted by the agency
within thirty (30) calendar days of the date this decision becomes final,
and shall remain posted for sixty (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
at the address cited in the paragraph entitled "Implementation of the
Commission's Decision," within ten (10) calendar days of the expiration
of the posting period.
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 (K1208)
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 77960, Washington,
DC 20013. 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 (M1208)
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 77960,
Washington, DC 20013. 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 (R0408)
This is a decision requiring the agency to continue its administrative
processing of your complaint. However, if you wish to file a civil
action, you have the right to file such action in an appropriate United
States District Court within ninety (90) calendar days from the date
that you receive this decision. 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 filed your appeal with the
Commission. 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. Filing a civil
action will terminate the administrative processing of your complaint.
RIGHT TO REQUEST COUNSEL (Z1008)
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 from the Court that
the Court appoint an attorney to represent you and that the Court also
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 with
the Court 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:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
November 10, 2009
__________________
Date
1 The Notice of Proposed Removal stated that complainant had misused her
government credit card and had committed travel card fraud. The Notice
listed eleven instances where complainant used her government credit
card to obtain cash advances when she was not in a travel status.
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2
0120081650
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120081650