0520130322
08-07-2013
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.
Request No. 0520130322
Appeal No. 0120121638
Hearing No. 460-2011-00131X
Agency No. BOP-2009-0845
DENIAL
The Agency requested reconsideration of the decision in Angela P. Stafford v. Department of Justice, EEOC Appeal No. 0120121638 (Jan. 11, 2013). EEOC Regulations provide that the Commission may, in its discretion, grant a request to reconsider any previous Commission decision where the requesting party demonstrates 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. See 29 C.F.R. � 1614.405(b).
BACKGROUND
Complainant worked as a probationary secretary at the Federal Correctional Complex (FCC) in Pollock, Louisiana. An EEOC Administrative Judge found that for ten months, from April 2008 through January 2009, she endured daily sexual harassment from her immediate supervisor. The supervisor's unwelcome sexual conduct included:
* making sexually suggestive comments, such as his need to get "laid" and the fact that there was an office bet about how long it would be before the supervisor would sleep with Complainant.
* Trying to visit her home under the pretext of needing to get her signature for her evaluation.
* Inviting Complainant to come to his home to have drinks and take their relationship to a more personal level.
* Frequently calling her on her cell phone after duty hours, including while she was on vacation visiting family.
* Stating that a female associate warden gave him a "woody" and commented on the size of another female employee's breasts.
* Touching her three times, including an attempt to massage her.
* Threatening a coworker that Complainant was dating, by warning him to leave his secretary alone or he would cut off his balls.
Desperate to get the supervisor to leave her alone, Complainant resorted to making herself look less attractive by quitting certain grooming habits. This did not work after the supervisor told her to get her hair and nails done because she looked like she "crawled out of bed."
Because of the supervisor's harassment, Complainant hated to go to work. He made her feel uncomfortable, dirty, and embarrassed. She tried to avoid being alone with him in the office and in the filing room. She cried at work, felt nauseous, and threw up. She lost sleep and had to see an EAP psychologist for counseling. At one point, she confided in the co-worker she was dating that she could not take the supervisor anymore and wanted to resign.
Although the AJ found the record contained credible evidence, including Complainant's testimony, to show that she suffered emotional harm during the ten months of sexual harassment (feeling dirty, embarrassed, hating to go to work, being visibly upset and crying at work, experiencing nausea, vomiting, and restless sleep), which resulted in her EAP counseling sessions, the AJ awarded Complainant only $5,000 in compensatory damages.
This was due in part to an earlier decision by the AJ to sanction Complainant for not fully responding to some of the Agency's discovery requests. The AJ's sanction prohibited Complainant from introducing any documentary evidence beyond the investigative record to support her claims for damages.
In addition, the AJ found that part of Complainant's emotional distress during the relevant time period was attributable to other factors. The AJ noted that Complainant took Prozac from 2005 to 2010 to treat her Obsessive Compulsive tendencies. And based on the fact that Complainant's second husband died in July 2008 and her first husband died in July 2009, the AJ determined that those two deaths must have caused Complainant to experience emotional loss and sadness.
Because of the lack of medical documentary evidence (due to the sanction) and the deaths of two former husbands, the AJ limited the award of compensatory damages to $5000 for the ten months of harassment she suffered by the supervisor.
In our previous appellate decision, the Commission found that the AJ did not adequately compensate Complainant for the daily pain and suffering she endured from April 2008 to January 2009. The Commission found it appropriate, and consistent with similar cases, to award $20,000 for the emotional harm Complainant suffered daily.
CONTENTIONS ON REQUEST FOR RECONSIDERATION
In its request for reconsideration, the Agency contends that the previous decision clearly erred in increasing the award for compensatory damages to $20,000. First, the Agency maintains that there was substantial evidence in the record to support the AJ's determination that a higher compensatory damage amount was not warranted because of Complainant's previous medical diagnoses and medication, as well as the traumatic deaths of her two husbands. Second, the Agency argues that award of $20,000 was not consistent with similar cases, and that $5,000 is more appropriate, given the limited evidence that Complainant was allowed to submit to prove damages.
ANALYSIS
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)).
The Commission has long held that a complainant's own testimony, along with the circumstances of a particular case, can suffice to sustain 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.
Given that the harassing conduct in this case was inherently degrading and humiliating, we find that the previous decision appropriately awarded Complainant $20,000 for emotional damages. The AJ found credible Complainant's testimony that, for ten months, she feared to be alone with the supervisor and felt uncomfortable, dirty, and embarrassed. She hated going to work and at one point wanted to resign. She was visibly upset at work, cried, experienced nausea and vomiting, and slept restlessly. We find no clear error in awarding $20,000 for such constant and frequent emotional distress. See, e.g., 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); Adams v. Dep't of Health and Human Services, EEOC Appeal No. 0120112249 (Mar. 19, 2013) ($30,000 awarded for a complainant who, for between one to two years, feared for her safety and felt shock, embarrassment, dirty, and violated with no subsequent petition for compensatory damages).
We see no reason to lower the award of $20,000 in compensatory damages merely because Complainant's first and second husbands died around the relevant time period. We have found no evidence tying the deaths of her former spouses to her negative feelings about work, her fear of being alone with her supervisor, her feelings of being uncomfortable and embarrassed, or the feeling that she was dirty. There is no evidence in the record to show that the deaths of her former spouses caused her to become nauseated and vomit, or caused her to cry after she rebuffed yet another sexual advance from her supervisor.
The mere fact that two of her former spouses died is insufficient to infer that these matters must have caused Complainant to experience some lingering emotional distress. Indeed, Complainant in her testimony explicitly rebuffed those suggestions from the Agency and the AJ.
Regarding her first husband, who was the father of her children, Complainant testified that there was stress at the beginning stages of their separation and divorce because he would not pay for child support. Hearing Transcript, at 79. But once that issue was resolved, "he didn't cause any other stress." Id. at 80. She maintained that the death of her first husband was not traumatic to her. "I was glad that he died, but I was saddened for my children that their father had - had died." Id. at 106-107.
During the hearing, the AJ questioned Complainant whether she had been severely depressed from the time that her second husband died in July 2008 to November 2008 when she began dating a coworker. Complainant acknowledged that she had been saddened by the death, but she had not been severely depressed because she and her second husband had already separated before his death. Id. at 114.
After reviewing the previous decision and the entire record, the Commission finds that the request fails to meet the criteria of 29 C.F.R. � 1614.405(b), and it is the decision of the Commission to deny the request. The decision in EEOC Appeal No. 0120121638 remains the Commission's decision. There is no further right of administrative appeal on the decision of the Commission on this request. The Agency shall comply with the Order as set forth below.
ORDER
If the Agency has not already done so, it is ordered to take the following remedial actions:
Within 120 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.
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 that the damages have been paid.
ATTORNEY'S FEES (H0610)1
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 (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.
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (R0610)
This is a decision requiring the Agency to continue its administrative processing of your complaint. However, if you wish to file a civil action, you have the right to file such action in an appropriate United States District Court within ninety (90) calendar days from the date that you receive this decision. 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 filed your appeal with the Commission. 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. 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
___8/7/13_______________
Date
1 This applies to costs and attorney fees incurred after the attorney submitted his fee petition to the AJ on December 19, 2011. The Agency's final order indicated that it would pay Complainant's attorney the sum of $5,106.53 in attorney's fees and costs.
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0520130322
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0520130322