0120122266
10-18-2012
Donna R. Carter, Complainant, v. Eric K. Shinseki, Secretary, Department of Veterans Affairs, Agency.
Donna R. Carter,
Complainant,
v.
Eric K. Shinseki,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 0120122266
Hearing No. 532-2010-00074X
Agency No. 200H-0646-2009103010
DECISION
On April 30, 2012, Complainant filed an appeal from the Agency's April 16, 2012, 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 AFFIRMS the Agency's final order.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Grounds Maintenance Laborer, WG-2, at the Agency's Pittsburgh Healthcare System in Pittsburgh, Pennsylvania.
Complainant filed an EEO complaint dated July 17, 2009, alleging that the Agency discriminated against her and subjected her to harassment on the bases of sex (female), age (58), and in reprisal for prior protected EEO activity when:
1. Complainant was advised by letter dated May 13, 2009, that she did not meet the minimum qualifications for the position of Motor Vehicle Operator/Laborer, WG-5703-5, announced under vacancy announcement number 09-134-MS;
2. Complainant was subjected to an Equal Pay Act violation when on June 8, 2009, Complainant learned that she is the only WG-2 in her area, whereas all others are WG-5;
3. Complainant was subjected to sexual harassment on April 27, 2009, when she found a pornographic magazine in the restroom, nothing was done, and her supervisor told her that he was "going to get rid of her;" and
4. On July 20, 2009, Complainant became aware that her supervisor stated in a July 2009 meeting that he would not provide her any training for a WG-5 position.
On August 18, 2009, the Agency noted that with regard to issue (2), the Equal Pay Act itself prohibits discrimination on the basis of sex only in the payment of wages to employees. Thus, the Agency dismissed the bases of age and reprisal with regard to the Equal Pay Act claim, for failure to state a claim. The Agency accepted the remainder of the complaint for processing.
At the conclusion of the investigation on the accepted issues, the Agency provided Complainant 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. Over Complainant's objections, the AJ assigned to the case granted the Agency's motion for a decision without a hearing. The AJ issued a decision without a hearing on November 22, 2011.
In her decision, the AJ found Complainant failed to prove that she was subjected to discrimination or harassment with regard to issues (1) - (4). However, the AJ found that after she lodged a complaint regarding her discovery of a pornographic magazine in the restroom to the Agency's police, Complainant's supervisor told her that she needed to watch when and where she said things in that some things needed to be talked about in private and not out in the open where all can hear. The AJ determined that the supervisor's conduct constituted a per se interference with the EEO process that could have a chilling effect and is likely to deter a reasonable person from making or supporting a charge of discrimination. As relief for the finding of per se discrimination, the AJ awarded Complainant: $500 in non-pecuniary, compensatory damages; $12,109.07 in attorney's fees and costs; and ordered the Agency to post a notice of the finding of discrimination.
The Agency subsequently issued a final order on April 16, 2012. The Agency's final order fully implemented the AJ's decision, including the finding that Complainant proved the Agency subjected her to per se reprisal discrimination and the relief as ordered by the AJ.
On appeal, Complainant claimed that the award of $500 in compensatory damages was "a slap in the face." Complainant stated that she gets ill every day and has headaches.1
ANALYSIS AND FINDINGS
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 EEOC Management Directive for 29 C.F.R. Part 1614, Chap. 9, � VI.A. (Nov. 9, 1999) (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").
The Commission notes that the Agency implemented the AJ's finding of discrimination, and that finding is AFFIRMED herein. We note that on appeal Complainant does not challenge the AJ's finding of no discrimination with regard to the remaining issues in her complaint. The Commission has the discretion to review only those issues specifically raised in an appeal. Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614, 9-10 (November 9, 1999). Accordingly, we will not address the findings of no discrimination in this decision.
Therefore, we now address the issue of compensatory damages. 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. Dep't 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").
Non-pecuniary damages are available to compensate an injured party for actual harm, even where the harm is intangible. Carter v. Duncan-Higgins, Ltd., 727 F.2d 1225 (D.C. Cir. 1984). Emotional harm will not be presumed simply because complainant is a victim of discrimination. Guidance at 5. The existence, nature, and severity of emotional harm must be proved. Id. We note 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. See Ward-Jenkins v. Dep't of the Interior, EEOC Appeal No. 01961483 (March 4, 1999) (citing Cygnar v. City of Chicago, 865 F.2d 848 (7th Cir. 1989)). Finally, we note that in determining non-pecuniary compensatory damages, the Commission has also taken into consideration the nature of the Agency's discriminatory actions. See Utt v. U.S. Postal Service, EEOC Appeal No. 0720070001 (March 26, 2009).
In Carle v. Dep't of the Navy, the Commission explained that evidence of non-pecuniary damages could include a statement by complainant explaining how she was affected by the discrimination. EEOC Appeal No. 01922369 (January 5, 1993). Complainant could also submit documentation of medical or psychiatric treatment related to the effects of the discrimination. Id. However, evidence from a health care provider is not a mandatory pre-requisite to establishing entitlement to non-pecuniary damages. Sinnott v. Dep't of Defense, EEOC Appeal No. 01952872 (September 19, 1996).
At the outset, we note Complainant is not requesting pecuniary damages and we see no evidence in the record of any pecuniary damages. Thus, we only address Complainant's entitlement to non-pecuniary, compensatory damages and not pecuniary damages.
Based on the record, the Commission finds that the award of $500 in non-pecuniary damages is sufficient to remedy the harm that the Agency's actions caused Complainant. In her statement in support of damages, Complainant stated that the hostile working environment she was forced to endure on a daily basis has impacted her health by increasing her stress level and causing migraine headaches to the point where she does not wish to continue employment at the Agency. Additionally, Complainant stated she experienced hair loss, insomnia, and an extreme paranoia of her workplace.
Taking into account the evidence of non-pecuniary damages submitted by Complainant, we find the Agency's award of non-pecuniary, compensatory damages in the amount of $500 to be adequate, which takes into account the nature of the discriminatory actions and the severity of the harm suffered, and is consistent with prior Commission precedent. See Vincent v. U.S. Postal Service, EEOC Appeal No. 0120101454 (December 16, 2010) (complainant subjected to per se reprisal discrimination and awarded $500 in non-pecuniary, compensatory damages when she suffered distress, became sick to her stomach at work, had trouble sleeping, and experienced an elevation of blood pressure); Seago v. Dep't of Agriculture, EEOC Appeal No. 07A60030 (October 17, 2006), request for recon. denied, EEOC Request No. 0520070151 (December 20, 2006) (complainant awarded $500 in non-pecuniary, compensatory damages when he suffered frustration, humiliation, confusion, and uncertainty as a result of the agency's discriminatory action). An award of $500 meets the goals of not being motivated by passion or prejudice, not being "monstrously excessive" standing alone, and being consistent with the amounts awarded in similar cases.
CONCLUSION
Accordingly, the Agency's final order is AFFIRMED. The Agency is directed to implement the following corrective actions in accordance with the ORDER herein.
ORDER
To the extent it has not already done so, the Agency shall take the following remedial actions:
1. Within 30 days of the date this decision becomes final, the Agency shall pay Complainant the amount of $500 in non-pecuniary, compensatory damages; and
2. Within 30 days of the date this decision becomes final, the agency shall pay the sum of $12,109.07 to Complainant in attorney's fees and costs.2
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 (G0610)
The Agency is ordered to post at its Pittsburgh, Pennsylvania 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.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0610)
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 (M0610)
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), at 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 (S0610)
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 (Z0610)
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
October 18, 2012
__________________
Date
1 Complainant submitted timely briefs which we consider. Complainant also submitted a brief postmarked June 2, 2012, which we find was untimely filed. Thus, the Commission will not consider the June 2, 2012 brief in the present appeal.
2 We do not order the consideration of discipline or training for the responsible management official, as the record reveals that Complainant's supervisor has retired from the Agency.
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01-2012-2266
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120122266