0120112249
03-19-2013
Amanda M. Adams, Complainant, v. Kathleen Sebelius, Secretary, Department of Health and Human Services (Indian Health Service), Agency.
Amanda M. Adams,
Complainant,
v.
Kathleen Sebelius,
Secretary,
Department of Health and Human Services
(Indian Health Service),
Agency.
Appeal No. 0120112249
Agency No. HHS-IHS-0336-2009
DECISION
On February 22, 2011, Complainant appealed the Agency's January 20, 2011 final decision, which awarded her $500 in non-pecuniary compensatory damages and $9,482.25 in attorney's fees and costs for being subjected to sexual harassment, in violation of Title VII of the Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. � 2000e et seq. The Commission accepts the appeal, according to 29 C.F.R. � 1614.405(a). For the following reasons, the Commission MODIFIES the Agency's final decision.
ISSUE PRESENTED
Did the Agency err in awarding Complainant a total of $500 in compensatory damages because she allegedly did not include a subsequent submission of damages to the Agency?
BACKGROUND
Complainant was a Pharmacy Technician, GS-5, at the Sisseton Health Care Center. On November 19, 2010, the Agency issued a final decision, finding that Complainant had been sexually harassed by CW1, a male Supervisory Civil Engineering Technician. For over a year, he harassed Complainant by reaching down the back of her pants and snapping her underwear; sticking his hand down the back of her shirt and commenting on how soft her skin was; rubbing her shoulders; touching her hair; commenting about her panties and bras; and talking about how good she smelled. Report of Investigation (ROI), Complainant Affidavit (Aff.), at 5, 8.
In her affidavit, Complainant testified that she felt shocked, embarrassed, dirty, and violated. Complainant Aff. at 6. She was scared to go to work and to leave the facility after work because she did not know what CW1 could do. Id. at 11.
After the Agency began investigating CW1's conduct, he came into the office and told his supervisor that he had been dreaming about hurting and killing women at the facility. Id. at 8. This incident led Complainant and others to go to court to get a temporary protection order, prohibiting CW1 from coming to the Agency without notice to security and an escort. When he came to the facility unannounced one day, the Agency changed its locks, hired more security, changed the codes to the door, and redid the alarm system. Id. at 9.
In its final decision, the Agency determined that Complainant was entitled to remedies, including compensatory damages. The Agency instructed Complainant, in relevant part, to submit to the Agency's EEO office objective evidence to support her claim of compensatory damages.
According to the record before the Commission, Complainant's attorney submitted evidence to support a claim of $9,482.25 for attorney's fees and costs from April 7, 2009 to January 14, 2011.
On January 20, 2011, the Agency issued a decision concerning fees and damages, awarding $9,482.25 in attorney's fees and costs, and $500 in compensatory damages. Regarding compensatory damages, the Agency awarded no money for pecuniary damages because Complainant "did not include a submission of pecuniary damages," and it awarded no money for emotional pain.
Complainant's attorney protested to the Agency. In a February 21, 2011 letter, she maintained that, along with her petition in support of attorney's fees and costs, she submitted a petition for compensatory damages to the EEO office on January 14, 2011. For support, she included a certified mail receipt to show that the Agency received a package on January 19, 2011.
CONTENTIONS ON APPEAL
On appeal, Complainant's attorney challenges the Agency's award of compensatory damages. Specifically, she contends that she submitted a petition for compensatory damages to the Agency's EEO office on January 14, 2011, and that the letter was received and signed for by the Agency on January 19, 2011, the day before the Agency issued its decision on damages and fees. Complainant's appellate brief references several exhibits, including Complainant's petition for compensatory damages (exhibit 3), a certified mail receipt to show that the letter was postmarked on January 14, 2011 (exhibit 4), and the certified mail receipt showing that the Agency received and signed the letter on January 19, 2011 (exhibit 5).
Furthermore, Complainant's attorney maintains that she sent the petition for compensatory damages in the same package as the petition for attorney's fees and supporting documentation. And because the Agency included an award of attorney's fees based upon the documents submitted on January 14, 2011, the Agency must have also received the documents regarding the petition for compensatory damages.
On August 18, 2011, Complainant's attorney requested a status update on the appeal. In the letter, she indicated that the Agency's complaints and adjudication manager requested that she send another copy of Complainant's 202-page damages petition before it would issue a new award letter. Complainant's attorney did so, but has not heard from the Agency since.
ANALYSIS AND FINDINGS
Standard of Review
The Commission reviews de novo an agency's final decision that is issued without a hearing under 29 C.F.R. � 1614.110(b). 29 C.F.R. � 1614.405(a).
"The de novo standard requires that the Commission examine the record without regard to the factual and legal determinations of the previous decision maker. . . . The Commission will review the documents, statements, and testimony of record, including any timely and relevant submissions of the parties, and . . . will issue its decision based on the Commission's own assessment of the record and its interpretation of the law." Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at 9-15 (Nov. 9, 1999).
Compensatory Damages
Compensatory damages may be awarded for the past pecuniary losses, future pecuniary losses, and non-pecuniary losses which are directly or proximately caused by the agency's discriminatory conduct. Enforcement Guidance: Compensatory and Punitive Damages Available Under Section 102 of the Civil Rights Act of 1991 (Enforcement Guidance), EEOC Notice No. 915.002, at 8 (July 14, 1992). Objective evidence of compensatory damages can include statements from the complainant concerning his or 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. Statements from others, including family members, friends, health care providers, or other counselors (including clergy) could address the outward manifestations or physical consequences of emotional distress, including sleeplessness, anxiety, stress, depression, marital strain, humiliation, emotional distress, loss of self-esteem, excessive fatigue, or a nervous breakdown. Lawrence v. U.S. Postal Serv., EEOC Appeal No. 01952288 (Apr. 18, 1996) (citing Carle v. Dept. of the Navy, EEOC Appeal No. 01922369 (Jan. 5, 1993)).
Upon review, the Commission has been unable to locate in the record any copy of Complainant's petition for compensatory damages that was purportedly mailed to the Agency on January 14, 2011. Nor did we find a copy of the petition for compensatory damages attached to Complainant's appellate brief. Neither party has notified the Commission of any subsequent final decision issued by the Agency after August 18, 2011.
But the lack of a subsequent petition for compensatory damages does not mean that Complainant should effectively be denied compensatory damages, particularly for emotional harm. The record before the Commission contains relevant testimony in the form of Complainant's affidavit that is sufficient to determine an award for emotional harm.
The Commission has long held that a complainant's own testimony, along with the circumstances of a particular case, can suffice to sustain his or her burden in recovering compensatory damages for emotional harm. The more inherently degrading or humiliating the agency's action is, the more reasonable it is to infer that a person would suffer humiliation or distress from that action. Therefore, somewhat more conclusory evidence of emotional distress will be acceptable to support an award for emotional damages. See, e.g., Lawrence v. U.S. Postal Serv., EEOC Appeal No. 01952288 (Apr. 18, 1996). But the absence of supporting evidence may affect the amount of damages appropriate in specific cases. Id.
Here, Complainant testified that she suffered emotional harm from being physically abused and sexually degraded by CW1 for a period of between one to two years. During this period of time, she felt shocked, embarrassed, dirty, and violated, and she feared for her safety. She testified that she was scared to go to work and to leave the facility after work because she did not know what CW1 could do. And apparently she was not alone in this feeling, with other colleagues joining with Complainant to secure a temporary protection order against CW1, and the Agency upgrading its security in response to his statements that he dreamed of harming and killing females at the facility.
Given that the harassing conduct here was inherently degrading and humiliating, we find it reasonable to accept Complainant's testimony of emotional distress to support an award for emotional damages. We find it appropriate to award Complainant $30,000 because (1) her affidavit testimony established that, for a duration of one to two years, she feared for her safety and felt shocked, embarrassed, dirty, and violated from the harasser's actions; (2) the lack of medical testimony or documentation in the record reduced what could have been a higher amount awarded in damages. See Banks v. U.S. Postal Serv., EEOC Appeal No. 07A20037 (Sept. 29, 2003) ($35,000 awarded for 18 months of fearing for her safety and being humiliated, intimidated, embarrassed, deeply depressed, with no medical evidence produced); compare Servold v. Dept. of Homeland Security, EEOC Appeal No. 0120053029 (Mar. 29, 2007) (finding $30,000 to be inadequate to compensate a victim of sexual harassment who produced supporting testimony and medical evidence that she suffered two years of anxiety, stress, depression, gastrointestinal problems, and insomnia, and increasing the award to $45,000).
Therefore, we AFFIRM IN PART, the Agency's final decision awarding Complainant $9,482.25 in attorney's fees. But we MODIFY IN PART, the Agency's final decision awarding compensatory damages, by increasing the award to $30,000 in non-pecuniary compensatory damages for emotional harm.
ORDER
If it has not already done so, the Agency must pay Complainant, within 60 calendar days of this decision becoming final, $30,000 in compensatory damages, and $9,482.25 in attorney's fees and costs.
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 Agency has implemented the above corrective actions.
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 (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 (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
___3/19/13_______________
Date
2
01-2011-2249
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120112249
2
01-2011-2249