01A13314
04-29-2003
Connie T. Ellis, Complainant, v. Donald H. Rumsfeld, Secretary, Department of Defense (Defense Commissary Agency) Agency.
Connie T. Ellis v. Department of Defense (Defense Commissary Agency)
01A13314
April 29, 2003
.
Connie T. Ellis,
Complainant,
v.
Donald H. Rumsfeld,
Secretary,
Department of Defense
(Defense Commissary Agency)
Agency.
Appeal No. 01A13314
Agency No. 00-DCW-19D-003
DECISION
Connie T. Ellis (�complainant�) worked for the Department of Defense's
Defense Commissary Agency (�the agency�) as a Deputy Commissary Officer
in the Fort Huachuca Commissary at Fort Huachuca, Arizona. She filed
a formal equal employment opportunity (�EEO�) complaint against the
agency on or around October 21, 1999. In this complaint, she alleged
that she was subjected to a hostile work environment created by her
supervisor (�Supervisor�), during a period beginning on January 8,
1998 (when Supervisor was first transferred to Fort Huachuca) until
July 9, 1999 (when Supervisor resigned from duty at Fort Huachuca).
Complainant claimed that Supervisor harassed her because of her religion
(Catholicism), gender (female), and disability (fibromyalgia). She was
thus effectively arguing that by condoning the harassment, the agency
had violated Title VII of the Civil Rights Act of 1964 (�Title VII�), as
amended, 42 U.S.C. � 2000e et seq., and Section 501 of the Rehabilitation
Act of 1973 (�the Rehabilitation Act�), as amended, 29 U.S.C. � 791
et seq.
The agency ultimately issued a final agency decision (�FAD�) finding that
Supervisor had not harassed complainant because of her religion, but
had in fact unlawfully harassed her because of her sex and disability.
In this FAD, dated March 22, 2001, the agency did not contest its own
liability for this supervisory harassment, and ordered the following
relief: (1) an assurance that the workplace would be free of hostility
should complainant return to it; (2) restoration of 126 hours of annual
leave, 119.5 hours of sick leave, and 62.75 hours of compensatory time;
(3) $7,690.34 in past pecuniary damages; (5) $5,040 in future pecuniary
damages; and (6) $10,000 in non-pecuniary compensatory damages.
Complainant subsequently filed a timely appeal of this FAD with us, the
United Stated Equal Employment Opportunity Commission (�EEOC� or �the
Commission�). In her appeal, complainant does not contest the agency's
finding that she was not subject to discrimination on the basis of her
religion, or its finding that she was harassed because she is a woman
and disabled. However, complainant does argue that the agency's remedial
order was insufficient. More specifically, she claims that the agency did
not provide her the appropriate amount and type of �make-whole� relief.
She believes she is entitled to the following: (1) the cash equivalent
of 504 hours of annual leave, 478 hours of sick leave, and 251 hours of
compensatory time; (2) $15,733.62 in past medical/prescription costs;
(3) $102,029.53 in expected future medical/prescription costs; (4)
$23,902.20 in past lost Thrift Savings funds; (5) $58,465.30 in future
lost Thrift Savings agency matching contributions; (6) $898,887.88 in
future lost Thrift Savings earnings from employee contributions; (7)
$142.61 incurred to buy supplies to prepare EEO complaint; (8) $650 in
past yard maintenance labor costs; (9) $19,800 in expected future yard
maintenance labor costs; (10) $60,840 in expected future housekeeping
costs; (11) $9,507 in moving expenses to enable complainant to move
closer to her family; (12) $500,000 in total non-pecuniary compensatory
damages; and (13) unspecified attorney's fees (should the need to hire
an attorney arise in the future).
Our task is to resolve this dispute over the appropriate type and amount
of relief due complainant because of the discrimination she suffered at
the hands of the agency. In doing so, we review the propriety of the
FAD's relief order de novo (or �anew�).<1> See 29 C.F.R. � 1614.405(a).
This means that in deciding this case, we must �examine the record
without regard to the factual and legal determinations� of the agency,
�review the documents, statements, and testimony of record, including
any timely and relevant submissions of the parties,� and then issue
our decision �based on the Commission's own assessment of the record
and . . . interpretation of the law.� Equal Employment Opportunity
Management Directive for 29 C.F.R. Part 1614 (rev. Nov. 9, 1999) (�EEO
MD-110�), at 9-15. Accordingly, we have carefully reviewed the entire
record before us in our attempt to discern whether a preponderance of
the evidence warrants a modification of the agency's remedial ruling.
See 29 C.F.R. � 1614.405(a). We conclude that it does.
This is a case of a complainant who was routinely treated horribly by
her first-line Supervisor for over a year and a half. In an apparent
campaign to force complainant out of the workplace, Supervisor questioned
her fitness for duty on numerous occasions, picked apart her work,
called her incessantly at home with work-related questions even when
she was extremely ill, ridiculed her physical and emotional condition,
told her once she should slit her wrists to put herself out of her
misery, ostracized her in the workplace, omitted her from letters of
commendation provided to everyone else on the job, insinuated publicly
that she was abusing sick leave, and generally made her work and
personal life miserable. Complainant argues that this treatment made
her fibromyalgia much worse, caused her intense physical and emotional
pain, and ultimately compelled her to take disability retirement from
the agency. The agency, on the other hand, acknowledges its liability
for this supervisory harassment but disputes the exact amount and
type of damages complainant suffered because of it. The agency claims
that much of complainant's pain and suffering should be attributed to
her pre-existing medical conditions. The agency also points out that
complainant did not retire from the agency until roughly a year after
Supervisor was no longer complainant's supervisor (and thus roughly a
year after the illegal harassment ceased).
Whenever an agency is liable for unlawful employment discrimination, it
must provide complainant with full, �make-whole� relief to restore the
complainant as nearly as possible to the position he or she would have
been in absent the discrimination. Cf. Franks v. Bowman Transportation
Co., 424 U.S. 747, 764 (1976); and Albemarle Paper Co. v. Moody, 422
U.S. 405, 418-19 (1975). In the federal sector, the agency's efforts in
this regard should include (where appropriate) equitable relief, such as
(1) notification to all employees of the agency in the affected facility
of their right to be free of unlawful discrimination; (2) a commitment
that corrective, curative, or preventive action will be taken to ensure
that violations of the law similar to those found will not recur; (3)
an unconditional offer to the particular victim of discrimination of
placement in the position the victim would have occupied but for the
discrimination suffered (or placement in a substantially equivalent
position); (4) payment to the victim for any loss of earnings resulting
from the discrimination (i.e., backpay and/or frontpay); and (5) a
commitment that the agency shall cease from engaging in the specific
unlawful employment practice found. See, e.g., 29 C.F.R. � 1614.501
(setting forth various equitable remedies available to federal sector
complainants who have prevailed on a complaint of unlawful employment
discrimination). Restoration of leave taken because of discrimination
suffered is also a legitimate form of equitable relief. See Harrison
v. United States Postal Service (Southeast Area), EEOC Appeal No. 01A14848
(Mar. 22, 2002), citing Whiting v. ACTION, EEOC Request No. 05900093
(June 27, 1990).
In addition, the Civil Rights Act of 1991 (�the 1991 CRA�) authorizes
an award of compensatory damages as part of the make-whole relief for
intentional employment discrimination violating Title VII, the ADA,
and/or the Rehabilitation Act. See, e.g., 42 U.S.C. � 1981a(a); see also
West v. Gibson, 527 U.S. 212 (1999) (where the Supreme Court affirmed
the EEOC's statutory authority to award such compensatory damages to
complainants who prevail on administrative federal sector complaints).
Compensatory damages �are awarded to compensate a complaining party for
losses or suffering inflicted due to the discriminatory act or conduct,�
and �may be had for any proximate consequences which can be established
with requisite certainty.� Enforcement Guidance: Compensatory and
Punitive Damages Available Under Section 102 of the Civil Rights Act
of 1991 (�Damages Guidance�), at 4; see id. at 5 (noting that �[t]o
recover damages, the complaining party must prove that the employer's
discriminatory act or conduct was the cause of [the] loss,� and that
�[t]he critical question is whether the complaining party incurred
the . . . losses as a result of the employer's discriminatory action
or conduct�).<2> Such compensatory damages include �damages for past
pecuniary loss (out-of-pocket loss),<3> future pecuniary loss,<4> and
nonpecuniary loss (emotional harm).�<5> Id.<6>
Given this panoply of possible relief, and after reviewing all of the
available relevant evidence for this case, we believe the following
relief is appropriate here:
Equitable Relief
Injunctive Relief and Training. The agency, in its FAD, assured
complainant that Supervisor was no longer employed at Fort Huachuca
Commissary, and that this work place would be free from hostility should
complainant ever return. To help ensure that is the case, the agency
must provide all managers at the Fort Huachuca Commissary with at least 16
hours of training on federal employment discrimination, with a particular
emphasis on illegal harassment. The agency must also post a notice at
this facility notifying all of its employees that illegal harassment did
occur there, and guaranteeing that no such harassment will occur again.
The agency must also evaluate how and why the particular harassment
against complainant occurred, and take any and all preventive measures
necessary to ensure that neither harassment nor any other prohibited form
of employment discrimination happens at Fort Huachuca Commissary again.
Restoration of Leave. Complainant requested restoration of 504 hours of
annual leave, 478 hours of sick leave, and 251 hours of compensatory time.
In her appeal brief, complainant argues generally that Supervisor's
harassment significantly exacerbated her fibromyalgia, and was the
primary (if not sole) reason why she had to take so much leave during
1998, 1999, and 2000, and why she ultimately had to leave the agency on
disability retirement in 2000. From the record, we have little doubt
that Supervisor's harassment did exacerbate her condition considerably
and require her to take leave on many occasions.
Our problem, however, is that we have no way of knowing exactly when or
how much leave was required because of the agency's illegal actions.
Beyond complainant's general assertions that she was required to take
leave repeatedly because of Supervisor's harassment, complainant provided
nothing to demonstrate any specific nexus between the exact occasions
on which she took leave and how this usage of leave was caused by the
agency's discrimination (e.g., she does not provide any precise medical
documentation, for example, pinpointing with any accuracy which precise
acts by Supervisor caused her to take which precise hours/days/weeks
of leave). It is her burden to do so. See Portier v. Department of the
Army, EEOC Appeal No. 01A05954 (Feb. 28, 2001) (citing Velez v. United
States Postal Service, EEOC Appeal No. 01902746 (Nov. 16, 1990), and
holding that �to be entitled to leave restoration, the employee must
demonstrate a causal nexus between the harassment (discrimination)
and need to take leave�). Because she failed to meet this burden,
complainant is not entitled to restoration for leave claimed.
However, the agency did admit in its FAD that the harassment contributed
to complainant's stress and to a �flare-up� of her fibromyalgia.
The agency acknowledged that �the unlawful discriminatory actions
contributed at least in part to the aggravation of [complainant's]
conditions that resulted in [her] taking leave.� FAD (Mar. 22, 2001).
The agency then estimated (without providing much explanation) that 25% of
the leave complainant had taken was related to its discriminatory actions.
It therefore agreed to restore 25% of the leave she was requesting.
We decline to disturb this agency decision on appeal. The agency
therefore must restore to complainant 126.00 hours of annual leave,
119.50 hours of sick leave, and 62.75 hours of compensatory time.
Compensatory Damages � Past Pecuniary Relief
Medical Expenses. Similarly, complainant requested $15,733.62 in
medical expenses allegedly incurred as a result of Supervisor's
harassment. Complainant did previously provide the agency (and we
found in the record) an itemized list of doctor bills and prescription
fees complainant paid during 1998, 1999, and 2000, totaling $15,733.62.
However, on appeal complainant makes only a general assertion that all
of this amount was incurred because of Supervisor's harassment, and
again provides no hard evidence linking specific costs to the agency's
illegal conduct (e.g., there is no physician affidavit explaining which
exact visits or prescriptions resulted from the stressful harassment
complainant suffered). Thus, and because we know she did have several
pre-existing conditions,<7> we cannot conclude complainant is entitled
to the $15,733.62 she claimed. Cf. Simmons v. Department of Veterans
Affairs, EEOC Appeal No. 01A02306 (May 29, 2002); and Taylor v. Department
of the Navy, EEOC Appeal No. 01940376 (July 22, 1994).
However, we also know generally that Supervisor's behavior did exacerbate
her pre-existing conditions significantly and compel her to seek repeated
medical treatment during the period in question.<8> Accordingly, the
agency agreed to pay $7,690.34 for doctor and prescription costs due
to the harassment she endured. Again, we see no reason to disturb this
decision on appeal. The agency is therefore ordered to pay complainant
$7,690.34 in past medical expenses.
Cost of Supplies for Preparing EEO Complaint. Complainant requested
$142.61 for costs incurred in buying supplies to prepare her complaint
and subsequent compensatory damages filings. Any claim for out-of-pocket
expenses such as this must be supported by detailed documentation (e.g.,
receipts). See, e.g., Canady v. Department of the Army, EEOC Request
No. 05890226 (Dec. 27, 1989). Complainant admits that she did not keep
the receipts for these items purportedly purchased, and her request for
$142.61 could thus be denied. However, the agency's FAD agreed to pay
complainant $100.00 for similar expenses, and we see no reason to disturb
this decision now. Therefore, the agency must pay complainant $100.00
for the costs incurred in purchasing supplies used in prosecuting her
EEO complaint.
Moving Expenses. Complainant also asked for $9,507.00 in moving
expenses for costs involved with moving to Washington State to be near
her family for support and comfort in the aftermath of the harassment.
The agency denied all of this request. There is nothing in the record
to convince us that the agency's unlawful actions in any way compelled
complainant to move. Indeed, complainant did not even provide us with
any information whatever on the details of this move (e.g., when it
took or will take place). Therefore, we conclude that the agency is not
obligated to reimburse complainant for such a discretionary relocation.
Compensatory Damages � Future Pecuniary Relief
Thrift Savings Plan Income. Complainant asked that she be provided with
roughly $957,353 in future projected lost employer contributions to, and
income earned from complainant's own investment in, her Thrift Savings
Plan. Complainant reasoned that Supervisor's actions ultimately led to
her disability retirement (which now precludes her from participating
in the Thrift Savings Plan), and that she thus should be compensated for
her inability to reap the benefits of this governmental retirement plan.
The agency argued that there was no proof that the unlawful discrimination
prompted her disability retirement, and points out that she retired almost
a year after Supervisor had left the facility. We are inclined to agree.
As we have said, there is substantial evidence that Supervisor's behavior
aggravated her fibromyalgia. Despite complainant's contentions, however,
we have not found anything in the record proving that the illegal
discrimination she suffered caused her actual retirement itself.<9>
Therefore, we believe her claim for future lost Thrift Savings Plan
earnings must be denied.<10>
Household and Exterior Labor Expenses. Complainant asked for $60,840 in
projected future costs for having a cleaning service clean her home until
she reaches age 66, and for $19,800 in future costs for having a yard
maintenance team trim her trees and bushes until that time. The agency
denied these claims in their entirety, claiming that complainant had
not shown that she had deteriorated to the point where she could not
clean her house or maintain her yard. We agree. While her testimony
and letters from her doctors doubtless imply that complainant is in great
pain because of her disability and is currently unable to do many of the
things she used to enjoy doing, there simply is insufficient proof for
us to conclude that she was rendered incapable of cleaning her house
of maintaining her yard because of the agency's actions. Likewise,
complainant has not provided enough evidence for us to conclude that her
only option now is to hire the work done � or that she will never be able
to do the work herself again until she reaches age 66 (as she claims).
Thus, we conclude that her claim for these anticipated costs must be
denied.<11>
Attorney Expenses. Complainant requested attorney fees that might be
incurred if she is required to take her case to court. Complainant has
not incurred any attorney's fees to date, however, and we have no way
of knowing whether she ever will. We think the agency thus properly
denied this request.
Medical Bills. Complainant requested $102,029.53 in projected future
medical expenses (allegedly to be incurred for doctor visits, massage
therapy, and non-prescription herbs and pain relief items until
complainant reaches the age of eligibility for medicare). However,
complainant provided absolutely no evidence whatever substantiating
these anticipated expenses. For instance, she did not provide any
doctor's statements detailing the exact type of treatment she will
need to receive. Perhaps more importantly, she did not demonstrate,
except by general assertion, a link between the harassment suffered
and precise future medical care that will be required because of it.
It was her burden to do so. Therefore, complainant is not entitled to
the future medical expenses she requested. However, the agency awarded
$5,040.00 (for future counseling visits), and we see no reason to disturb
this decision now. Therefore, the agency must pay complainant $5,040.00
for future medical expenses.
Compensatory Damages � Non-Pecuniary Relief
Finally, complainant requested $500,000 in non-pecuniary �pain and
suffering� damages. Complainant indicated that the harassment she
endured caused her intense and permanent physical and emotional harm.
In a statement provided to the agency, complainant stated:
I know the reason my body is the way it is now is because [Supervisor]
would not let me get any rest and he kept me in a constant state of stress
at work and at home which made my whole body hurt much worse than it ever
had before . . . . I have had physical problems and body pain all my
life and through a positive and active li[f]e I have always managed [to]
deal with the physical difficulties and pain my body has presented me.
I have always been able to work . . . .In most instances I have been
able to ignore my physical handicaps by using them to help me learn to
be more compassionate for other people . . . .
[But] I would come home from a day of working with [Supervisor] and
be exhausted. I would try to sleep and he would call and wake me up.
I would get so tired I couldn't sleep and the pain would get so bad
because I was so tired I couldn't sleep from the pain. It just became
an ever-worsening cycle. I had hoped when [Supervisor] left that I would
get better, but by then my body was too far-gone. I kept working hoping
to see an improvement, but it never happened. It took me finally going on
leave and applying for disability retirement to stop the down hill slide.
As long as I don't do much of anything and avoid stressful situations
I am pretty stable with even some small improvement, but the minute I
get tired or stressed . . . I have a fibromyalgia flare up that puts
me right back in bed for days . . . .
I provided copies of letters and information from books to [Supervisor]
informing him that stress made me worse, and unfortunately his response
seemed to be to increase the level of stress not reduce it. I came to
understand he was truly trying to drive me from the organization and
was using my disability as a way to accomplish it . . . . In the end it
didn't make any difference what his reason was, or why he harassed me,
he just did. The tension and stress [were] unbearable for me . . . .
I don't think there is any question I would have been able to continue
working, as I had stated I was able to work before the impact of the
stress on my body and I think without the stress the fibromyalgia may
never have occurred or at the most been a mild case . . . . [Now] [m]y
financial credit is in jeopardy due to the loss of my income . . . .
I have had to borrow money from my thrift savings to pay my bills
until my disability retirement is approved . . . . I don't have any
professional standing left; I don't have a job. My self image as someone
who has always been able to take care of themselves has been destroyed.
The mental anguish shows up in nightmares and fear. My health is gone,
and the level of severity to my enjoyment of life is shown in all the
things I can't do anymore.
Complainant's Statement (Oct. 3, 2000).
Complainant also told the agency that (among other things) she now cannot
walk, sit, stand, lay, or be hugged without pain, participate in church
activities, remember things or think like she used to, paint and draw
like she used to, sleep without bad dreams, lift her granddaughter,
be intimate with a man, or travel any distance without exhaustion. Id.
In her appeal brief, complainant also indicated that one doctor diagnosed
her with Post Traumatic Stress Syndrome stemming from the supervisory
harassment, and that she has been awarded worker's compensation on this
basis, as well.
Another of her physicians explained that complainant:
[is] overwhelmed by medical symptoms, chronic pain, nightmares, and
financial stress . . . . [She] cannot climb stairs . . . . She is
using a cane and her movement is noticeably restricted. Her affect is
blunted and she reports anxiety and exhaustion from her pain . . . .
[She] has grief issues around the loss of her health, her career, her
inability to stand, sit or walk for any length, her inability to use her
hands, especially for doing her artwork. Her fibromyalgia is observably
disabling and she describes acute pain in her back and shoulders. [Her]
symptoms include social isolation and an inadequate support system,
difficulty concentrating and completing simply daily tasks. She has
difficulty remembering words and often feels �tongue tied.� Her sleep
is disturbed and she reports having nightmares, especially relating to
her abusive work situation. . . . She describes feeling helpless and
aware that her life is unmanageable in every aspect. [She] is fearful
of accessing feelings because when she recalls her supervisor's abusive
behavior, she becomes so angry she feels sick . . . .
Doctor's Statement (Oct. 6, 2000).
Non-pecuniary losses for emotional and physical harm such as this
�are more difficult to prove than pecuniary losses,� and �there are
no definitive rules governing the amounts to be awarded.� Damages
Guidance, at 6, 8; see id. at 6 (noting that �[e]motional harm will
not be presumed simply because the complaining party is a victim of
discrimination,� and that �[t]he existence, nature, and severity of
emotional harm must be proved�). The agency awarded complainant $10,000
in non-pecuniary damages, reasoning that much of complainant's troubles
were not caused by Supervisor's conduct, specifically. We have been
convinced that Supervisor inflicted undeniable physical and emotional
pain and suffering on complainant for the 18 months she was under
his supervision. We therefore think the agency's award was too low.
Cf. id. at 6 (explaining that �if a complaining party had preexisting
emotional difficulties and [her] mental health deteriorates as a result
of the discriminatory conduct, the additional harm may be attributed
to the� agency). However, given complainant's pre-existing medical
condition � and the significant uncertainty over whether the harassment
compelled complainant's retirement, and our doubt that the agency's
illegal actions should be deemed the cause of all of complainant's past,
present, and future pain and suffering � we believe $500,000 would be too
high.<12> See id. at 6, 7 (stating that �[a]n award for emotional harm
is warranted only if there is sufficient causal connection between the
respondent's illegal actions and the complaining party's injury,� that
�[t]he discriminatory act or conduct must be the cause of the emotional
harm,� and that �where a complaining party's emotional harm is due in
part to personal difficulties, which were not caused or exacerbated by
the discriminatory conduct, the employer is liable only for the harm
resulting from the discriminatory conduct�).
Therefore, we believe an award of $125,000 in non-pecuniary damages
is fair and appropriate here. See, e.g., Santiago v. Department of
the Army, EEOC Appeal No. 01955684 (Oct. 14, 1998) (where we awarded a
complainant $125,000 for somewhat similar supervisory harassment that
resulted in ongoing depression, social withdrawal, recurring nightmares
and memories of harassment, anxiety, and confusion, as well as severe
physical problems, including severe chest and stomach pains, digestive
problems, and incidents of shortness of breath); and Hughes v. Department
of Veterans Affairs, EEOC Appeal No. 07A10095 (Aug. 30, 2002) (where we
awarded $125,000 to a complainant who suffered from Post Traumatic Stress
Disorder, nightmares, depression, and sexual dsyfunction as a result of
illegal agency discrimination); cf. Teal v. United States Postal Service,
EEOC Appeal No. 01991097 (July 26, 2000) (where we awarded $95,000 to
a complainant who endured 11 months of intimidation, disparaging and
demeaning treatment, and verbal abuse from her supervisor, inflicting
severe emotional distress and anxiety and causing her to seek medical
attention, file a claim for workers compensation, and use extensive sick
leave and leave without pay). This figure takes into account the nature,
severity, and duration of complainant's suffering, is consistent with
other non-pecuniary compensatory damages awards given in similar cases,
and is not �monstrously excessive� standing alone or derived from passion
or prejudice.
In conclusion, it is the decision of this Commission to affirm the
agency's FAD with respect to the FAD's findings of liability, but to
modify the FAD on the issue of the appropriate amount of relief due
complainant for the harassment she endured. Accordingly, the agency
must comply with the ORDER below.
ORDER (C0900)
The agency shall take the following remedial action, to the extent it
has not already done so, within sixty (60) days of the date this decision
becomes final:
Restore to complainant a total of 126 hours of annual leave, 119.50
hours of sick leave, and 62.75 hours of compensatory time;
Pay complainant $7,690.34 for past medical expenses;
Pay complainant $100.00 for past supply costs;
Pay complainant $5,040.00 for projected future costs of medical care;
Pay complainant $125,000 for non-pecuniary emotional and physical harm
suffered as a result of Supervisor's harassment;
Provide a minimum of 16 hours of training to all management personnel at
the Fort Huachuca Commissary on their responsibilities under the laws
enforced by this Commission, with special emphasis on the prevention,
identification, and elimination of workplace harassment;
Evaluate how and why the particular harassment against complainant
occurred, and take any and all preventive measures necessary to ensure
that neither harassment nor any other prohibited form of employment
discrimination happens at Fort Huachuca Commissary again (including
reviewing and revising as necessary agency policies and procedures
relating to the investigation and prevention of unlawful harassment,
so as to provide prompt and thorough investigation of such complaints,
and appropriate and effective remedial corrective actions in response
to such complaints); and
Post the attached notice, as provided in the paragraph below entitled
�Posting Order,� notifying all Fort Huachuca Commissary employees that
illegal workplace harassment occurred, and guaranteeing them freedom
from similar unlawful treatment.
The agency is further directed to submit a report of compliance, as
provided in the statement entitled �Implementation of the Commission's
Decision. The report shall include supporting documentation verifying
that the corrective action has been implemented.
POSTING ORDER (G0900)
The agency is ordered to post at its Fort Huachuca, Arizona Commissary
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 below 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 (K0501)
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 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 (M0701)
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 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 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 (S0900)
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:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
April 29, 2003
__________________
Date
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
An Agency of the United States Government
This Notice is posted pursuant to an order by the United States Equal
Employment Opportunity Commission dated ___________, which found that
a violation of Title VII of the Civil Rights Act of 1964, as amended,
42 U.S.C. � 2000e et seq., and Section 501 of the Rehabilitation Act of
1973, as amended, 29 U.S.C. � 791 et seq. has occurred at the Department
of Defense (Defense Commissary Agency) Fort Huachuca Commissary at Fort
Huachuca, Arizona.
Federal law requires that there be no discrimination against any
employee or applicant for employment because of that person's RACE, COLOR,
RELIGION, SEX, NATIONAL ORIGIN, AGE, or DISABILITY with respect to hiring,
firing, promotion, compensation, or other terms, conditions or privileges
of employment. This agency was found to have violated this federal
law by subjecting an employee to disability and sex discrimination.
Specifically, this agency was found liable for the actions of one of
its supervisors, who harassed a subordinate employee on the basis of
her gender and disability.
Consequently, this agency was ordered to pay this employee the precise
amount of damages suffered by the employee as a result of this harassment.
This agency was also ordered to conduct training to educate all managers
at this facility on supervisory obligations and employee rights under the
federal employment discrimination laws (and about workplace harassment,
in particular).
This facility will ensure that officials responsible for personnel
decisions and terms and conditions of employment will abide by the
requirements of all federal equal employment opportunity laws and will not
retaliate against employees who file EEO complaints. This facility will
comply with federal law and will not in any manner restrain, interfere,
coerce, or retaliate against any individual who exercises his or her
right to oppose practices made unlawful by, or who participates in
proceedings pursuant to, federal equal employment opportunity law.
Date Posted: _____________________
Posting Expires: _________________
29 C.F.R. Part 1614
1However, and as noted, neither party on appeal is challenging the FAD's
threshold finding that the agency should be held liable for sex-based
and disability-based harassment (or that the agency should not be held
liable for religion-based harassment). Thus, we need not and will not
scrutinize the propriety of these liability determinations.
2Compensatory damages do not include backpay, interest on backpay,
frontpay, or any other type of relief authorized under Title VII, the ADA,
or the Rehabilitation Act. See 42 U.S.C. � 1981a(b)(2).
3Pecuniary damages include, for instance, moving expenses, job search
costs, medical/psychiatric/physical therapy bills, and other quantifiable
out-of-pocket expenses. Past pecuniary damages are �out-of-pocket
losses that occurred prior to the date of the resolution of the damage
claim, i.e., conciliation, settlement, or the conclusion of litigation.
The amount to be awarded for past pecuniary losses can be determined
by receipts, records, bills, cancelled checks, confirmation by other
individuals, or other proof of actual losses and expenses.� Damages
Guidance, at 5.
4Future pecuniary damages are �out-of-pocket expenses that are likely to
occur after conciliation, settlement, or the conclusion of litigation.�
Damages Guidance, at 5. Future pecuniary losses do not include front pay.
Id.
5Non-pecuniary damages are awarded �for the intangible injuries
of emotional harm such as emotional pain, suffering, inconvenience,
mental anguish, and loss of enjoyment of life.� Damages Guidance, at 6.
This emotional harm may �manifest itself, for example, as sleeplessness,
anxiety, stress, depression, marital strain, humiliation, emotional
distress, loss of self esteem, excessive fatigue, or a nervous breakdown.
Physical manifestations of emotional harm may consist of ulcers,
gastrointestinal disorders, hair loss, or headaches.� Id. Other similar
non-pecuniary damages could include �injury to professional standing,
injury to character and reputation, injury to credit standing, loss of
health, and any other nonpecuniary losses that are incurred as a result
of the discriminatory conduct.� Id.
6A compensatory damages award should fully compensate a complainant
for the harm caused by the agency's discriminatory action even if
the harm is intangible. See Damages Guidance, at 8. However, the
1991 CRA limits the total amount of compensatory damages that may
be awarded for future pecuniary losses and non-pecuniary losses only
(i.e., past pecuniary damages are not subject to a statutory maximum).
The particular ceiling imposed in a given case is a sliding scale
based on the number of persons employed by the respondent employer.
The limit for any employer with more than 500 employees, such as the
agency, is $300,000. See 42 U.S.C. � 1981a(b)(3)(D).
7See, e.g., Doctor's Letter (undated) (noting that complainant �has a
history of health issues including bilateral asymmetry (left side of
her body is smaller than the right) causing some curvature of the spine;
multiple surgeries including a hysterectomy, pectoral surgery . . ., and a
knee surgery. She has migraine headaches, asthma, mitral valve prolapse,
gastric esophagul reflux and fibromyalgia. In the past five years [she]
has had valley fever, pneumonia and bronchitis.�); and Complainant's
Letter (Jul. 1, 1999) (where she admits that �I suffer from Fibromyalgia,
Chronic Fatigue Syndrome, Poland's Syndrome, arthritis in my shoulders,
hips and knees, migraine headaches and seasonal asthma/pneumonia,� and
states that �[d]uring the past two and half years [i.e., beginning a year
before Supervisor became her supervisor] my illness has progressed to the
point where I am in constant pain [and in need of disability retirement]�)
8See, e.g., Doctor's Letter (undated) (indicating that Supervisor's
harassment �definitely intensified [complainant's] symptoms�);
cf. Doctor's Letter (Jul. 21, 1999) (stating that complainant �has
had significant complaints on every [doctor] visit surrounding, what
I believe to be, stress-type issues,� and that the harassment �creates
more severe stress for her which exacerbates her condition�).
9For instance, one doctor's report stated only that �[i]t is unfortunate
that the stressors present in the patient's employment situation could not
have been alleviated sooner, as this might have prevented the patient's
current disability.� Doctor's Letter (Sept. 14, 2000) [emphasis added].
However, even this doctor did not specify what exact �stressors� should
have been alleviated sooner � and this letter was written over a year
after Supervisor had left the agency. Cf. Doctor's Letter (Feb. 13, 2000)
[emphasis added] (stating that �the case of [complainant] is that of a
person with Fibromyalgia who might have been able to continue working
under certain circumstances, but due to the stress of her workplace she
was unable to do so�); and Doctor's Letter (July 21, 1999) [emphasis
added] (opining that complainant �is unable to be what I consider a
productive employee in her current place of employment as long as the
harassment issues remain� � but the harassment ended roughly a year before
complainant retired). Moreover, complainant herself once indicated that
her medical problems pre-dated Supervisor's arrival at Fort Huachuca,
and that such problems � not Supervisor's actions � necessitated her
disability retirement. See Complainant's Letter (Jul. 1, 1999) (where
she admits that �I suffer from Fibromyalgia, Chronic Fatigue Syndrome,
Poland's Syndrome, arthritis in my shoulders, hips and knees, migraine
headaches and seasonal asthma/pneumonia,� and states that �[d]uring
the past two and half years [i.e., beginning a year before Supervisor
became her supervisor] my illness has progressed to the point where I
am in constant pain [and in need of disability retirement]�).
10For the same reason, we believe her plea for $23,902.20 in past lost
Thrift Savings Plan earnings should also be denied.
11We therefore also conclude complainant's request for $650 for past
yard maintenance expenses must also be denied.
12It would also be statutorily impermissible. See note 6, above.