0720090012
03-13-2009
Zina D. Coffee, Complainant, v. Robert M. Gates, Secretary, Department of Defense, Agency.
Zina D. Coffee,
Complainant,
v.
Robert M. Gates,
Secretary,
Department of Defense,
Agency.
Appeal No. 0720090012
Hearing No. 450200800059X
Agency No. ARRRAD06AUG03964
DECISION
Following its November 10, 2008 final order, the agency filed a timely
appeal which the Commission accepts pursuant to 29 C.F.R. � 1614.405(a).
On appeal, the agency requests that the Commission affirm its rejection
of an EEOC Administrative Judge's (AJ) award of compensatory damages,
pursuant to a finding of discrimination in violation of Title VII
of the Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. �
2000e et seq. Specifically, the agency accepted the AJ's finding that
complainant was discriminated against due to her race. However, the
agency requests that the Commission affirm its rejection of the relief
ordered by the AJ as regards compensatory damages. As such, the agency
rejected that portion of the AJ's decision which awarded complainant
$75,000.00 in compensatory damages. For the following reasons, the
Commission reverses the agency's final order.
ISSUES PRESENTED
Whether complainant was properly awarded $75,000.00 in compensatory
damages following a finding that she was discriminated against because of
her race (Black) when the agency failed to take corrective action when
during a three-month temporary duty assignment, and upon her return to
her permanent work station complainant was harassed by a co-worker.
BACKGROUND
The record indicates that complainant began working as a Material
Expeditor, WG-7 at the agency's Red River Army Depot (RRAD) facility in
Texarkana, Texas in November 2004.
On October 12, 2006, complainant filed an EEO complaint alleging that
she was discriminated against on the bases of race (Black) and sex
(female) when during a three-month temporary duty assignment at Fort
Knox, Kentucky from June 5 to September 10, 2005, and upon return to her
permanent duty station, she was subjected to a hostile work environment.
At the conclusion of the investigation, complainant was provided with a
copy of the investigative report and requested a hearing before an AJ.
Following a hearing, on September 30, 2008, the AJ issued a finding
of discrimination based on race for the agency's conduct in creating a
hostile work environment. Further, the AJ awarded complainant $75,000.00
in compensatory damages. In addition, the AJ awarded complainant costs
in the amount of $1,865.82 and attorney's fees in the total amount
of $19,093.50. The agency issued a final order declining to fully
implement the AJ's decision. On appeal, the agency does not contest
the AJ's finding of racial discrimination. Rather, the agency argues
that the AJ's award of compensatory damages was excessive in light of
the circumstances of the case.
Pursuant to 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
de novo standard of review, whether or not a hearing was held, as are
findings of fact issued without a hearing. See 29 C.F.R. � 1614.405(a).
On appeal, the agency has not contested the finding of racial
discrimination in connection with the actions of complainant's co-worker.
Therefore, the Commission limits its review in the case to the AJ's
award of compensatory damages.
ANALYSIS AND FINDINGS
Pursuant to section 102(a) of the Civil Rights Act of 1991, a
complainant who establishes his or her claim of unlawful discrimination
may receive, in addition to equitable remedies, 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).
42 U.S. C. �1981a(b)(3). 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. Id.
The particulars of what relief may be awarded, and what proof is necessary
to obtain that relief, are set forth in detail in EEOC Notice No. N
915.002, Compensatory and Punitive Damages Available Under Section 102
of the Civil Rights Act of 1991 (July 14, 1992) (Guidance). Briefly
stated, the complainant must submit evidence to show that the agency's
discriminatory conduct directly or proximately caused the losses for
which damages are sought. Id. at 11-12, 14; Rivera v. Dept. of the Navy,
EEOC Appeal No. 01934157 (July 22, 1994). The amount awarded should
reflect the extent to which the agency's discriminatory action directly
or proximately caused harm to the complainant and the extent to which
other factors may have played a part. Guidance at 11-12. The amount
of non-pecuniary damages should also reflect the nature and severity of
the harm to the complainant, and the duration or expected duration of
the harm. Id. at 14.
In Carle v. Dept. of the Navy, the Commission explained that "objective
evidence" of non-pecuniary damages could include a statement by the
complainant explaining how he or she was affected by the discrimination.
EEOC Appeal No. 01922369 (January 5, 1993). 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 the time
the injured party has suffered from the harm. Carpenter v. Department
of Agriculture, EEOC Appeal No. 01945652 (July 17, 1995).
Pursuant to the agency's appeal, the Commission must review whether or
not the AJ's award of non-pecuniary damages was appropriate. The AJ
determined that complainant was entitled to $75,000.00 based on the
agency's discriminatory creation of a hostile work environment for
complainant in 2005. The Commission notes that complainant indicated that
as a result of the agency's conduct, she was unable to sleep or eat at
times. She lost weight, had chest pains and generally suffered symptoms
of high stress. Complainant indicates that as a result of the agency's
conduct, she suffered emotional harm in the form of mood swings, paranoia,
and depression. While there is very little medical documentation to
establish that complainant suffered significant emotional harm, the
record does contain statements from complainant's daughter, friends
and hair dressers indicating that the stress and anxiety complainant
exhibited during this time period which resulted in constant crying,
hair loss and lack of sleep on complainant's part, adversely affected
complainant's relationship with her children and family. Based on a
through review of the record, the Commission finds substantial evidence
to support the AJ's finding that complainant has established a nexus
between the alleged harm and discrimination, and therefore is entitled
to an award of non-pecuniary damages.
The AJ awarded $75,000.00 in compensatory damages to complainant based
on the agency's conduct and the harm suffered by complainant. In her
decision the AJ stated that the award of compensatory damages is "based on
the particularly egregious conduct by the agency employees in this case as
well as the total inaction by the agency once notified of the conduct."
Upon review of the record in this matter, the Commission finds that
the award of $75,000.00 in compensatory damages here is appropriate.
In reaching this conclusion, the Commission finds the agency's conduct
egregious in that it took no immediate, corrective action in this matter
as required by EEOC Regulations. In addition the Commission finds
that because complainant was isolated on a temporary duty assignment,
living in a hotel room next to the offending co-worker, and away from
her family during much of the time giving rise to these discriminatory
events, the AJ's award, while in the upper rage of similar awards,
is wholly appropriate under this particular circumstances of this case.
See Brown v. Department of Justice, EEOC Request No. 01983712 (June 22,
2000). Upon review, the Commission finds that the AJ's award is supported
by the evidence and consistent with previous Commission decisions.
CONCLUSION
Based on a through review of the record and the contentions on appeal,
including those not specifically addressed herein, the Commission reverses
the agency's final order and remands the matter to the agency to take
corrective action 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 remedial action:
1. Pay compensatory damages in the amount of $75,000.00;
2. Pay attorney's fees in the amount of $19,093.50 and costs in the
amount of $1,865.82;
3. Within 6 months of the date of the final action, provide EEO training
to all work leaders, supervisors, managers, and EEO officials who were
notified of the complainant's allegations but took no action;
4. Ensure that the complainant is located in a work area apart from the
discriminating officials (named individuals) and that they are never in
her supervisory chain; and
5. Within 30 days of the date of this final action, post the attached
notice of a finding of discrimination for 60 consecutive days at the
facility where the discrimination occurred, including the Human Resources
office responsible for the Complainant.
The agency is further directed to submit a report of compliance, as
provided in the statement entitled "Implementation of the Commission's
Decision."
POSTING ORDER (G0900)
The agency is ordered to post at the agency facility where the
discrimination occurred, 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 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
March 13, 2009
___________________________
Date
2
0720090012
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
7
0720090012