Sherill S.v.Dep't of the Air Force

Equal Employment Opportunity Commission

Apr 5, 2017

EEOC Appeal No. 0120160115 (E.E.O.C. Apr. 5, 2017)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013

Sherill S.,1
Complainant,

v.

Lisa S. Disbrow,
Acting Secretary,
Department of the Air Force,
Agency.

Appeal No. 0120160115

Agency No. 5K0M06013

DECISION

On September 21, 2015, Complainant filed an appeal, pursuant to 29 C.F.R. § 1614.403(a),
from the Agency’s August 27, 2015, final decision 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 decision.

ISSUE PRESENTED

The issue presented is whether the amount of compensatory damages awarded by the Agency
to Complainant, following a finding of discrimination by the Commission, should be increased.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a Human Resources
(HR) Assistant, GS-7, with the Agency’s Civilian Personnel Office, 951st Reserve Support
Squadron, at the March Air Reserve Base (ARB), located in California. Complainant was
hired as a probationary employee, beginning her employment on March 20, 2006.

1 This case has been randomly assigned a pseudonym which will replace Complainant’s name
when the decision is published to non-parties and the Commission’s website.
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On July 3, 2006, Complainant filed an EEO complaint alleging that the Agency subjected her
to discrimination and harassment on the bases of race (Caucasian), sex (female, pregnancy),
and in reprisal for prior protected EEO activity when:

1. S1 subjected her to a hostile work environment during the period of March
through June 2006;
2. She was terminated from her HR Assistant position on June 14, 2006;
3. On August 29, 2006, her termination was rescinded and she was reinstated to
the HR Assistant position under S1;
4. The Agency did not clear her personnel record of the prior termination as they
agreed to do in August 2006;
5. A Civilian Performance Appraisal dated October 1, 2006, was issued with
ratings of “5” (fully successful) without her knowledge or approval;
6. She was not permitted to telework;
7. She was placed in AWOL status from January 22, 2007, to February 2, 2007;
and
8. She was forced to resign, resulting in a constructive discharge.

At the conclusion of the investigation, the Agency provided Complainant with a copy of the
report of investigation and notice of her right to request a hearing before an Equal Employment
Opportunity Commission Administrative Judge (AJ). Complainant timely requested a hearing,
which the AJ held on July 8 and 9, 2009. The AJ thereafter issued a decision in the Agency’s
favor on December 18, 2012, finding no discrimination. The Agency’s Final Order fully
implemented the AJ’s decision. From that Order, Complainant appealed to the Commission.

Initially, the Commission dismissed Complainant’s appeal as untimely. EEOC Appeal No.
0120131447 (October 24, 2013). Complainant filed a request for reconsideration. On the
basis of new evidence concerning the date of mailing of the notice of appeal, the Commission
granted Complainant’s request on the issue of timeliness and, proceeded to address the merits
of the appeal. The Commission determined that the AJ’s findings with regard to discrimination
were not supported by the evidence. It found that Complainant had been discriminated against
because of her pregnancy when she was subjected to harassment, wrongfully terminated from
her position, and, after she was reinstated, constructively discharged. EEOC Request No.
0520140092 (February 13, 2015).

The Commission’s reconsideration decision provided for relief, including an order directing
the Agency to conduct a supplemental investigation into Complainant’s entitlement to
compensatory damages. The Agency conducted that investigation and determined, in its final
order, that Complainant was entitled to an award of $10,000.00 in non-pecuniary
compensatory damages. From that order, Complainant brings the instant appeal.

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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 Equal Employment Opportunity Management Directive for 29
C.F.R. Part 1614, at Chapter 9, § VI.A. (Aug. 5, 2015) (explaining that the de novo standard
of review “requires that the Commission examine the record without regard to the factual and
legal determinations of the previous decision maker,” and that EEOC “review the documents,
statements, and testimony of record, including any timely and relevant submissions of the
parties, and . . . issue its decision based on the Commission’s own assessment of the record
and its interpretation of the law”).

When discrimination is found, the Agency must provide Complainant with a remedy that
constitutes full, make-whole relief to restore her as nearly as possible to the position she would
have occupied absent the discrimination. See, e.g., Franks v. Bowman Transport. Co., 424
U.S. 747. 764 (1976); Albermarle Paper Co. v. Moody, 422 U.S. 405, 418-19 (1975);
Adesanya v. U.S. Postal Serv., EEOC Appeal No. 01933395 (July 21, 1994). Pursuant to
Section 102(a) of the Civil Rights Act of 1991, a complainant who establishes unlawful
intentional discrimination under Title VII may receive compensatory damages for past and
future pecuniary losses (i.e., out-of-pocket expenses) and non-pecuniary losses (e.g., pain and
suffering, mental anguish) as part of this “make whole” relief. 42 U.S.C. § 1981a(b)(3). In
West v. Gibson, 527 U.S. 212 (1999), the Supreme Court held that Congress afforded the
Commission the authority to award compensatory damages in the administrative process.

Non-pecuniary losses are losses that are not subject to precise quantification, i.e., emotional
pain, suffering, inconvenience, mental anguish, loss of enjoyment of life, injury to professional
standing, injury to character and reputation, injury to credit standing, and loss of health. See
EEOC Enforcement Guidance: Compensatory and Punitive Damages Available Under Section
102 of the Civil Rights Act of 1991, EEOC Notice No. 915.002, at II.A.2 (July 14, 1992).
There is no precise formula for determining the amount of damages for non-pecuniary losses
except that the award should reflect the nature and severity of the harm and the duration or
expected duration of the harm. See Loving v. Dep't of the Treasury, EEOC Appeal No.
01955789 (Aug. 29, 1997). The Commission notes that non-pecuniary compensatory damages
are designed to remedy the harm caused by the discriminatory event rather than punish the
Agency for the discriminatory action. Further, compensatory damages should not be
“monstrously excessive” standing alone, should not be the product of passion or prejudice, and
should be consistent with the amounts awarded in similar cases. See Ward-Jenkins v. Dep't of
the Interior, EEOC Appeal No. 01961483 (Mar. 4, 1999) (citing Cyngar v. City of Chicago,
865 F.2d 827, 848 (7th Cir. 1989)).

Evidence from a health care provider or other expert is not a mandatory prerequisite for
recovery of compensatory damages for emotional harm. See Lawrence v. U.S. Postal Serv.,
EEOC Appeal No. 01952288 (Apr. 18, 1996) (citing Carle v. Dep't of the Navy, EEOC
Appeal No. 01922369 (Jan. 5, 1993)). Objective evidence of compensatory damages can
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include statements from a complainant concerning her emotional pain or suffering,
inconvenience, mental anguish, loss of enjoyment of life, injury to professional standing,
injury to character or reputation, injury to credit standing, loss of health, and any other non-
pecuniary losses that are incurred as a result of the discriminatory conduct. Id.

In this matter, as is set forth in detail in the Commission’s decision granting reconsideration,
Complainant was subjected to a pattern of discrimination because she was pregnant, including
a wrongful termination, constructive discharge, and continuous harassment from March 2006
to February 2007. Complainant asserts that, as a result of being subjected to this pattern of
harassment by her supervisor motived by his animus against her for being pregnant, she
suffered extreme stress and anxiety. Complainant described those circumstances in an affidavit
supporting her claim for damages as follows:

From the outset of my employment, [my supervisor] yelled at me, questioned
me, demeaned me, and made me feel inadequate, based upon the fact that I
informed him that I was pregnant around the time that I began working under
his supervision. As a result of [my supervisor’s] actions, I suffered significant
emotional distress, which manifested itself in having ongoing [digestive
problems], the onset of headaches, overall stress and concern for my job and
significant difficulties with respect to my pregnancy.2

In its decision granting reconsideration, the Commission found as a fact that the hostile work
environment in Complainant’s workplace was so severe as to be “intolerable,” i.e., so intense
as to support a claim for constructive discharge. EEOC Request 0520140092 at 13.
Complainant was subjected to this high level of stress and anxiety for a period in excess of 11
months both in the workplace and while on maternity leave. We conclude that an award in the
amount of $75,000.00 would fairly compensate Complainant, considering the nature, severity,
and duration of her suffering.

This award is consistent with other non-pecuniary compensatory damages awards given in
similar cases. See Adah T. v. Department of the Interior, EEOC Appeal No. 0120131110
(September 18, 2015) ($75,000 where complainant suffered emotional harm over 16-17
months); Crear v. Department of Veterans Affairs, EEOC Appeal No. 07A50079 (January 26,
2006) ($70,000 awarded where complainant experienced anger, worry, embarrassment,
feelings of disrespect and degradation, sleep problems, hair loss, and problems with her
husband and children); McTier v. Department of the Navy, EEOC Appeal No. 07A30016
(March 2, 2004) ($85,000 awarded where complainant experienced constant sadness,
depression, anxiety, distrust of her supervisors, irritability, guilt, frequent crying, feelings of
betrayal, and a lack of energy); Miles v. U.S. Postal Service, EEOC Appeal No. 07A30019

2 In addition to damages resulting from emotional suffering, Complainant seeks compensation
for other categories of damages, including lost future earnings and foregone professional
opportunities. We conclude that Complainant’s proof of these damages is too speculative to
support an award.
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(February 27, 2004) ($75,000 awarded where complainant worked in constant fear for more
than three months and became angry, depressed, and distant from her husband); Wiggins v.
Social Security Administration, EEOC Appeal No. 07A30048 (January 22, 2004) ($70,000
awarded where complainant cried frequently for three months and experienced stress,
depression, insomnia, headaches, embarrassment, loss of self-esteem, increased back pain, and
loss of enjoyment of life).

CONCLUSION
Based on a thorough review of the record and the contentions on appeal, including those not
specifically addressed herein, the Agency's decision is hereby MODIFIED. The Agency shall
comply with the Order as set forth below.

ORDER

To the extent it has not yet done so, the Agency is ordered to take the following remedial
action:

1. Within one hundred and twenty (120) days of the date this decision is issued, the
Agency shall pay complainant $75,000.00 in non-pecuniary compensatory damages.

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 of the Agency's calculation of benefits due
Complainant, including evidence that the corrective action has been implemented.

ATTORNEY'S FEES (H1016)

If Complainant has been represented by an attorney (as defined by 29 C.F.R.
§ 1614.501(e)(1)(iii)), 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 the date this decision is issued. 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 (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
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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 (M0416)

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 Chap. 9 § VII.B (Aug. 5, 2015). All requests and arguments
must be submitted to the Director, Office of Federal Operations, Equal Employment
Opportunity Commission. The requests may be submitted via regular mail to P.O. Box 77960,
Washington, DC 20013, or by certified mail to 131 M Street, NE, Washington, DC 20507. In
the absence of a legible postmark, the request to reconsider shall be deemed timely filed if it is
received by mail within five days of the expiration of the applicable filing period. See 29
C.F.R. § 1614.604. The 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).
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COMPLAINANT’S RIGHT TO FILE A CIVIL ACTION (T0610)

This decision affirms the Agency’s final decision/action in part, but it also requires the Agency
to continue its administrative processing of a portion of your complaint. You have the right to
file a civil action in an appropriate United States District Court within ninety (90) calendar
days from the date that you receive this decision on both that portion of your complaint which
the Commission has affirmed and that portion of the complaint which has been remanded for
continued administrative processing. In the alternative, you may file a civil action after one
hundred and eighty (180) calendar days of the date you filed your complaint with the Agency,
or your appeal with the Commission, until such time as the Agency issues its final decision on
your complaint. If you file a civil action, you must name as the defendant in the complaint the
person who is the official Agency head or department head, identifying that person by his or
her full name and official title. Failure to do so may result in the dismissal of your case in
court. “Agency” or “department” means the national organization, and not the local office,
facility or department in which you work. If you file a request to reconsider and also file a
civil action, filing a civil action will terminate the administrative processing of your complaint.

RIGHT TO REQUEST COUNSEL (Z0815)

If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may
request permission from the court to proceed with the civil action without paying these fees or
costs. Similarly, if you cannot afford an attorney to represent you in the civil action, you may
request the court to appoint an attorney for you. You must submit the requests for waiver of
court costs or appointment of an attorney directly to the court, not the Commission. The court
has the sole discretion to grant or deny these types of requests. Such requests do not alter the
time limits for filing a civil action (please read the paragraph titled Complainant’s Right to File
a Civil Action for the specific time limits).

FOR THE COMMISSION:

______________________________ Carlton M. Hadden’s signature
Carlton M. Hadden, Director
Office of Federal Operations

April 5, 2017
Date