0120121638
01-11-2013
Angela P. Stafford, Complainant, v. Eric H. Holder, Jr., Attorney General, Department of Justice (Federal Bureau of Prisons), Agency.
Angela P. Stafford,
Complainant,
v.
Eric H. Holder, Jr.,
Attorney General,
Department of Justice
(Federal Bureau of Prisons),
Agency.
Appeal No. 0120121638
Hearing No. 460-2011-00131X
Agency No. BOP-2009-0845
DECISION
On March 5, 2012, Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from the Agency's January 30, 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. The Commission accepts the appeal pursuant to 29 C.F.R. � 1614.405(a).
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Unit Secretary at the Agency's Federal Correctional Complex (FCC) in Pollock, Louisiana.
On November 4, 2010, Complainant filed an EEO complaint, and the parties later stipulated that the issue, in relevant part, was whether she was discriminated against when she was subjected to sexual harassment by her immediate supervisor from March 2008 through January 2009.
Following an investigation, Complainant requested a hearing before an EEOC Administrative Judge (AJ). Following a hearing, the AJ found that Complainant was sexually harassed by her immediate supervisor from April 2008 though late January 2009, and awarded equitable relief and $5,000 in non-pecuniary compensatory damages, plus interest. The Agency then issued a final order adopting the AJ's decision.
On appeal, Complainant challenges only the award of compensatory damages, arguing it was insufficient. Accordingly, we will only address this matter.
The AJ found the following facts: On a daily basis, and sometimes multiple times a day, Complainant's supervisor made unwelcome comments to Complainant about her personal appearance and/or sexually suggestive comments such as she was attractive, had beautiful skin, or wanted to protect her, and once told her he needed to get "laid." He touched her three times, all unwelcome, including once touching her shoulders in an attempt to massage her. The supervisor told Complainant he needed to come to her home to have her sign her evaluation, and she said no. At one point the supervisor's unwelcome comments and overtures caused Complainant to stop certain grooming habits in an effort to get him to leave her alone, and in response he told her to get her hair and nails done because she looked like she just crawled out of bed. In late summer 2008, Complainant complained to a prior supervisor about her supervisor's unwelcome comments, and he confronted the then current supervisor the next day. The latter's comments escalated and became more sexually oriented after this.
The AJ's findings continued as following: After the supervisor got a new car, he made a comment to Complainant about how she could drive it or get a new car and not pay for it. He repeated to Complainant an office bet by her co-worker about how long it would be before the supervisor would be sleeping with her. When Complainant said she was offended, the supervisor laughed and said it was no big deal. On several occasions the supervisor invited Complainant to come to his home and have drinks, and made comments to her indicating he wanted to go out with her and take their relationship to a more personal level. He called Complainant on her cell phone after duty hours, including while she was on vacation visiting her mother. The supervisor denied Complainant taking use-of-force training which she volunteered for as part of her correctional duty responsibilities, telling her he did not want her to get hurt and wanted to protect her. He told Complainant's co-worker, who she was dating, that he needed to leave his secretary alone or he would cut off his balls. A co-worker observed the supervisor's jealousy regarding calls made to Complainant's work telephone by the above co-worker, overheard the supervisor make a comment about a tattoo on Complainant's back, and other comments that appeared to make Complainant uncomfortable. The supervisor made a graphic and vulgar sexually oriented comment about a female associate warden, his supervisor, in front of his staff, including Complainant.
When the warden learned of the Complainant's contention of sexual harassment, he immediately reassigned the supervisor, and thereafter Complainant and the supervisor had no further contact. On June 20, 2010, the Agency demoted the supervisor and reassigned him to a facility in a different town for unprofessional comments of a sexual nature. The supervisor stated the discipline was for his comments about the associate warden.
The AJ found that the supervisor's sexual harassment caused Complainant to feel uncomfortable, dirty and embarrassed, caused her to avoid workplaces where she needed to work in trying not to be alone with him, and caused her cry while at work and after work, and to hate going to work. The AJ found the sexual harassment caused Complainant to feel nauseous, throw up, lose sleep, and obtain counseling from an EAP psychologist for eight sessions.
The record before the AJ did not include any medical documentation. The AJ found that Complainant did not show that she had any material harm related to the supervisor's harassment after he no longer supervised her. In reaching this conclusion, the AJ found that Complainant did not show her four month leave of absence (starting in July 2010, more than a year and a half after the supervisor left), was caused by the supervisor's actions, rather than other alleged events, such as subsequent alleged discrimination by other Agency officials unrelated to the instant complaint. The AJ found that Complainant's testimony tying loss beyond her exposure to the supervisor was weak and unconvincing.
ANALYSIS AND FINDINGS
Pursuant to 29 C.F.R. � 1614.405(a), all post-hearing factual findings by an AJ will be upheld if supported by substantial evidence in the record. Substantial evidence is defined as "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Universal Camera Corp. v. National Labor Relations Board, 340 U.S. 474, 477 (1951) (citation omitted). A finding regarding whether or not discriminatory intent existed is a factual finding. See Pullman-Standard Co. v. Swint, 456 U.S. 273, 293 (1982). An AJ's conclusions of law are subject to a de novo standard of review, whether or not a hearing was held.
An AJ's credibility determination based on the demeanor of a witness or on the tone of voice of a witness will be accepted unless documents or other objective evidence so contradicts the testimony or the testimony so lacks in credibility that a reasonable fact finder would not credit it. See EEOC Management Directive 110, Chapter 9, at � VI.B. (November 9, 1999).
On appeal, Complainant argues that prior to the hearing the AJ pre-judged that she was entitled to only low damages. Based upon our review of the record, we find that the AJ accurately characterized what occurred. Complainant has failed to show that the AJ's factual findings are not entitled to the regulatory substantial evidence standard of review. Further, while on appeal Complainant elaborates on the alleged injuries she suffered as a result of the discrimination, we base our findings of harm on the record that was before the AJ.
Complainant also argues on appeal that the damage award of $5,000 did not adequately compensate her for her injuries. In support of this, she submits medical documentation, and letters from her mother and fianc�.
The record reflects that prior to the hearing the AJ, on November 14, 2011, granted in part the Agency's motion for sanctions because Complainant was not responsive to some of the Agency's discovery. The sanction, in relevant part, prohibited Complainant from introducing any documentary evidence beyond the investigative record in support of her claims for damages. Complainant argues that she should not have been sanctioned because she provided medical documentation at her September 28, 2011, deposition, and on October 20, 2011, gave supplemental responsive discovery responses to her attorney.
In opposition to Complainant's appeal, the Agency counters that while it asked Complainant at the deposition to give medical records to her attorney for provision to it [and she indicated she would do so in the future], it never received the records.1 The record also reflects that Complainant's attorney did not forward Complainant's supplemental responses to discovery to the Agency. See Complainant's Motion in Opposition to Agency's Motion for Sanctions dated Nov. 14, 2011; Agency's Motion for Sanctions, dated Oct. 20, 2011. The Agency argues that the medical documentation and witness letters Complainant submitted on appeal should not be considered. We find that the AJ did not abuse her discretion in issuing the above sanction. Accordingly, the additional documentation Complainant submitted on appeal, including the letters, will not be considered.
Compensatory damages may be awarded for past pecuniary losses, future pecuniary losses, and non-pecuniary losses that are directly or proximately caused by the agency's discriminatory conduct. Compensatory and Punitive Damages Available Under Section 102 of the Civil Rights Act of 1991 (July 14, 1992) (available at www.eeoc.gov.) Non-pecuniary losses are losses that are not subject to precise quantification including emotional pain and injury to character, professional standing, and reputation. Compensatory damages are awarded to compensate for losses or suffering inflicted due to discrimination. An award of compensatory damages for such losses should reflect the nature and severity of the harm and the duration or expected duration of the harm. Id.
On appeal, Complainant argues that she is entitled to damages for events which occurred after she ceased having contact with her former supervisor in January 2009. We agree with the AJ's finding that Complainant is not entitled to damages for losses (e.g., emotional pain and suffering) which occurred after she ceased having contact with her former supervisor because she did not show they were caused by the discrimination found.
We find, however, that Complainant was not adequately compensated for the pain and suffering she endured from April 2008 to January 2009, a nine month period, by being harassed daily by her supervisor during this time. She worked in the pressurized environment of a prison, where a supervisor's daily harassment over a direct subordinate would likely have a greater impact. At her deposition Complainant testified that because of the harassment she was afraid she would lose her job.2 A co-worker stated that Complainant shared with him that the supervisor's overtures caused her problems because she was dating her co-worker. Report of Investigation (ROI), at 150. Another co-worker stated Complainant shared with him that she was humiliated by the supervisor's comments. ROI, at 168. Another stated Complainant shared with her that the supervisor's comments made her feel degraded and very uncomfortable; and that Complainant felt depressed and did not want to be around the supervisor, and was visibly upset and angry about the use of force team matter. ROI, at 186, 188. Complainant's fianc� stated that Complainant told him the supervisor's sexual comments made her feel disgusted, and there were many days she came home from work crying. Complainant ceased some grooming habits in an attempt to stop the supervisor's overtures. The AJ found the sexual harassment caused Complainant to feel nauseous, throw up, lose sleep, cry at work and after work, and hate coming to work. Because the supervisor engaged in daily harassment, we find it more likely than not that the above manifestations of emotional injury, in one form or another, occurred daily for nine months.
A proper award of nonpecuniary compensatory damages should consistent with the amount awarded in similar cases. See Ward-Jenkins v. Department of Interior, EEOC Appeal No. 01961483 (March 4, 1999). We find that the AJ's award of $5,000 on non-pecuniary compensatory damages was insufficient to compensate Complainant for her emotional harm. Instead, an award of $20,000 is consistent with the amount awarded in similar cases. Bailey v. Department of the Navy, EEOC Appeal No. 07A20108 (May 20, 2004) (victim of sexual harassment who suffered from stress, nervousness, sleeplessness, headaches, and fear of retaliation awarded $25,000 in non-pecuniary compensatory damages); Burgess v. Veteran's Administration, EEOC Appeal No. 07A30068 (Oct. 30, 2003) (victim of sexual harassment of more than six months duration awarded $20,000 in non-pecuniary damages based on complainant's statements of emotional distress, headaches and sleeplessness).
Accordingly, Complainant is awarded $20,000 in non-pecuniary damages. The Agency shall comply with the order below.
ORDER
The Agency is ordered to take the following remedial action:
Within 60 calendar days after this decision becomes final, the Agency shall pay Complainant $20,000 in non-pecuniary damages, less any non-pecuniary damages it already paid Complainant as previously ordered by the AJ.
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 damages have been paid.
ATTORNEY'S FEES (H0610)3
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 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 (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
January 11, 2013
__________________
Date
1 The Agency's characterization of this exchange in the deposition is accurate.
2 The record strongly suggests that the entire deposition became part of the hearing record.
3 This applies to costs and attorney fees incurred after the attorney submitted his fee petition to the AJ on December 19, 2011.
---------------
------------------------------------------------------------
---------------
------------------------------------------------------------
2
0120121638
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120121638