0120123231
02-01-2013
Becky L. Rey, Complainant, v. Ken L. Salazar, Secretary, Department of the Interior (Bureau of Indian Affairs), Agency.
Becky L. Rey,
Complainant,
v.
Ken L. Salazar,
Secretary,
Department of the Interior
(Bureau of Indian Affairs),
Agency.
Appeal No. 0120123231
Agency No. BIA-09-0294
DECISION
On August 15, 2012, Complainant filed an appeal from the Agency's July 13, 2012, 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. The Commission deems the appeal timely and accepts it pursuant to 29 C.F.R. � 1614.405(a).
BACKGROUND
At the time of events giving rise to this complaint, Complainant had been employed as a Supervisory Realty Specialist at the Agency's Colwell Indian Agency Northwest Regional Office facility in Nesplelem, Washington.
On April 1, 2009, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the basis of sex (female), age (59), and reprisal when, beginning in July 2008, she was subjected to harassment in the workplace that culminated in her termination from her position, effective April 3, 2009.
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 EEOC Administrative Judge (AJ). In accordance with Complainant's request, the Agency issued a final decision pursuant to 29 C.F.R. � 1614.110(b). The decision, dated September 30, 2010, concluded that Complainant proved that she was subjected to unlawful retaliation when she was harassed and terminated from her position, effective April 3, 2009. As a result, the Agency provided Complainant with an opportunity to submit a claim for compensatory damages, as well as attorney's fees. On July 13, 2012, the Agency issued its final decision on Complainant's damage claims and attorney's fee petition. It is from this decision that Complainant now appeals.
Claim for Damages
On February 16, 2011, and April 4, 2011, Complainant, through her attorney (Attorney), submitted statements of her claims for remedial damages that included past pecuniary damages, future pecuniary damages, and non-pecuniary damages.
In support of the claim for damages, the Attorney provided a Declaration from Complainant's treating therapist that established that she has paid $1,710.00 in medical bills for treatment for the psychological harm incurred due to the discrimination she incurred. The Attorney also asked for mileage for Complainant's travel to the therapist in the amount of $787.97, and for meals and incidental expenses in the amount of $648.00 ($27/day). In addition, the Attorney provided documentation to show that Complainant will continue to need medical attention into the future. Specifically, the therapist indicated that Complainant will need an additional nine months of intensive counseling, two times a month. Then, Complainant will need another three months of counseling once every three weeks. Finally, Complainant will require an additional six months of counseling once a month. Based on a cost of $135.00 per thirty minute session, Complainant will incur $4,050.00 in future pecuniary damages. The Attorney also estimated that Complainant will incur $999.32 in mileage for future visits and $729.00 for meals and other incidentals for her future visits to the therapist.
Complainant additionally sought $300,000.00 in non-pecuniary damages. In support of this claim, the Attorney provided a statement from the therapist and medical documents establishing that Complainant suffered from adjustment disorder with mixed anxiety and depression which was caused by the retaliatory discharge. Complainant had been undergoing treatment and will continue to do so. Complainant has also consistently expressed a profound fear of the Agency official who terminated her from her position with the Agency. She noted that he lives in the same neighborhood as Complainant and she has been afraid to leave her home independently. In addition, Complainant has had physical manifestations of her emotional distress. She experiences headaches, sudden fear for no reason, fear of going out alone, and difficulty sleeping. These have been cause by the retaliatory harassment and the residual effects will result in her need for future treatment for the ongoing anxiety. As such, the Attorney requests $ 300,000.00 for Complainant.
The therapist gave a declaration in support of Complainant's claim for non-pecuniary damages. She indicated that Complainant's loss of employment caused her significant psychological harm. She noted that Complainant expressed profound fear for the terminating official and that she is afraid to leave her home independently. She noted that Complainant suffers from adjustment disorder with mixed anxiety and depression which were caused by the retaliatory discharge. She also noted that Complainant as had improvements with her depression however, Complainant still suffered from significant anxiety which is adversely affecting Complainant. In addition, she noted that Complainant will continue to need treatment and provided Complainant's future counseling plan for the next 18 months.
Petition for Attorney's Fees and Costs
In addition to the claim for damages, the Attorney submitted a petition for legal fees and costs listing the services he provided for 44.6 hours at a rate of $ 285.00 per hour, for a total of $12,711. He also claimed $369.52 in costs, and estimated an additional $1919.00 in future fees.
Agency's Final Decision
The Agency issued its final decision on July 13, 2012. As for past pecuniary damages, the Agency awarded Complainant her requests of $1,719.00 for her therapy visits and $787.97 in mileage for her trips to the therapy sessions, for a total of $2497.97. The Agency denied Complainant's request for meals and incidental costs because Complainant failed to provide any documentation such as receipts and bills to support her claim. Further, as to Complainant's claim for future pecuniary damages, the Agency awarded $4050.00 in future therapy visits and $1,787.29 in mileage, as requested, for a total of $5837.29. Again, there was no award for meals and incidentials.
As for non-pecuniary damages, the Agency found that Complainant should be awarded $10,000.00. The Agency noted that the harassment itself only occurred for a period of less than two months. The Agency also noted that the harassment did not involve physical contact or assault and was on "the lower end of the severity of discriminatory/retaliatory actions found in the applicable case law." However, the Agency conceded that Complainant did establish an adequate nexus between harm she suffered and the actual termination, noting the therapist's statement detailing her mental condition and need for extended therapy. The Agency supported its conclusion that Complainant was only entitled to $10,000.00 for her non-pecuniary damages. First, the Agency contended that factors other than the discrimination contributed to Complainant's mental state, including her father's death and some long-term physical health issues that started before the discrimination. The Agency also pointed to the fact that Complainant did not begin therapy until some six months after the termination, which the Agency argues calls into question the severity of the emotional harm caused by the termination. The Agency also stated that the only supporting evidence of Complainant's harm is Complainant's own affidavit and that of the therapist. The Agency found that there was no corroborating evidence of the harm from Complainant's family, friends or coworkers. Accordingly, the Agency concluded that Complainant was entitled to $10,000.00.
Finally, as to the Attorney's fees and costs, the Agency noted that the Attorney provided a bill for 44.6 billable hours at a rate of $285.00, for $12,711. In addition, there was a claim for costs in the amount of $369.52 and future fees of $1,919.00. The Agency granted the total request, awarding the Attorney $ 15,000.00 (rounding up) for fees and cost.
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. (November 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").
Legal Standards for an Award of Compensatory Damages
Pursuant to section 102(a) of the Civil Rights Act of 1991, a complainant who establishes his or her claim of unlawful discrimination may receive, in addition to equitable remedies, 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). 42 U.S. C. � 1981a(b)(3). For an employer with more than 500 employees, such as the agency, the limit of liability for future pecuniary and non-pecuniary damages is $300,000. Id.
The particulars of what relief may be awarded, and what proof is necessary to obtain that relief, are set forth in detail in EEOC Notice No. 915.002, Compensatory and Punitive Damages Available Under Section 102 of the Civil Rights Act of 1991 (July 14, 1992). Briefly stated, the complainant must submit evidence to show that the agency's discriminatory conduct directly or proximately caused the losses for which damages are sought. Id. at 11-12, 14; Rivera v. Dep't of the Navy, EEOC Appeal No. 01934157 (July 22, 1994). The amount awarded should reflect the extent to which the agency's discriminatory action directly or proximately caused harm to the complainant and the extent to which other factors may have played a part. EEOC Notice No. N 915.002 at 11-12. The amount of non-pecuniary damages should also reflect the nature and severity of the harm to the complainant, and the duration or expected duration of the harm. Id. at 14.
In Carle v. Dep't of the Navy, the Commission explained that "objective evidence" of non-pecuniary damages could include a statement by the complainant explaining how he or she was affected by the discrimination. EEOC Appeal No. 01922369 (Jan. 5, 1993). Statements from others, including family members, friends, and therapists could address the outward manifestations of the impact of the discrimination on the complainant. Id. The complainant could also submit documentation of medical or psychiatric treatment related to the effects of the discrimination. Id. Non-pecuniary damages must be limited to the sums necessary to compensate the injured party for the actual harm and should take into account the severity of the harm and the length of the time the injured party has suffered from the harm. Carpenter v. Dep't of Agriculture, EEOC Appeal No. 01945652 (July 17, 1995).
Pecuniary Damages
The Agency conceded that Complainant established a nexus between her therapy bills and the Agency's discriminatory action. Complainant provided the Agency with copies of medical bills and noted the distance she had to travel from her home to the therapist. The Commission finds that the Agency correctly found that Complainant is entitled to pecuniary damages for those losses. As such, we affirm the Agency's award of $ 1,719.00 for her counseling visits and $787.97 in mileage for her trips to the therapy sessions. We note that Complainant failed to provide any receipts for her claim for "incidental" food expenses. As such, we find that the Agency's denial of this claim was appropriate.
Complainant requested future pecuniary damages for future therapy sessions and travel expenses. In support of her claim, the Therapist provided a statement including the therapy plans for Complainant over the next 18 months specifically address Complainant's conditions related to the retaliatory termination. As such, we find that Complainant established a nexus between the alleged harm and the agency's discriminatory action. Therefore, the Agency properly awarded Complainant $4050.00 in further therapy visits and $1,787.29 in mileage.
Non-pecuniary Damages
The Agency also found that Complainant established a nexus between the alleged harm and discrimination. As noted above, Complainant provided a statement from the Therapist and medical documents establishing that she suffered from adjustment disorder with mixed anxiety and depression which were caused by the retaliatory discharge. Accordingly, the Commission finds that Complainant established a nexus between the alleged harm and the discrimination and therefore, is entitled to an award of non-pecuniary damages.
Complainant has claimed that she should be awarded $300,000.00 in non-pecuniary compensatory damages. We note that Complainant had been undergoing treatment for her mixed anxiety disorder and depression and will continue to do so. Complainant has also consistently expressed a profound fear of the Agency official who terminated her from her position with the Agency. Complainant also stated that she had physical manifestations of her emotional distress. Specifically, she experienced headaches, sudden fear for no reason, fear of going out alone, and difficulty sleeping. We note that Complainant had been experiencing these conditions since she was terminated and is in need of some future therapy
Taking into account the evidence of non-pecuniary damages submitted by Complainant, we find her request for $300,000 to be excessive. However, we find that the Agency's award of $10,000.00 is inadequate. Rather, the Commission finds that complainant is entitled to non-pecuniary damages in the amount of $50,000. This amount takes into account her physical and emotional pain and suffering resulting from the retaliatory termination. We point out that non-pecuniary compensatory damages are designed to remedy a harm and not to punish the Agency for its discriminatory actions. See Memphis Commission. Sch'l. Dist. v. Stachura, 477 U.S. 299, 311-12 (1986) (stating that compensatory damages determination must be based on the actual harm sustained and not the facts of the underlying case).
The Commission notes that this award is not "monstrously excessive" standing alone, is not the product of passion or prejudice, and is consistent with the amount awarded in similar cases. See Cavanaugh v. U.S. Postal Serv., EEOC Appeal No. 07A20102 (Nov. 12, 2003) (awarding $50,000.00 in non-pecuniary damages where due to discrimination, Complainant experienced exacerbation of her depression, anxiety symptoms, increased need for medication, marital problems, negative effect on social life and interaction family relationships, distrust of others, irritability, sleeplessness, and tension headaches); Turner v. Dep't of the Interior, EEOC Appeal No. 01956390 (April 27, 1998) (providing $40,000.00 where discriminatory harassment caused Complainant to experience psychological trauma and physical injury with permanent effects); Marshall v. Dep't of Justice, EEOC Appeal No. 072008008 (Nov. 5, 2009) (awarding Complainant $50,000.00 in non-pecuniary damages for, following her retaliatory termination, Complainant sought physicians concerning a variety of issues, which includes, but is not limited to depression, anxiety, and chest pain). Accordingly, we conclude that the amount of $50,000.00 is appropriate in this case.
Attorney's Fees and Costs
We note that the Attorney provided a petition for fees and costs. The Agency granted the Attorney's request and rounded the amount up to $15,000.00. Based on the fact that the Agency, in essence, paid more to the Attorney than was actually requested, the Commission finds no reason to alter the Agency's award of fees and costs.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we MODIFY the Agency's final decision regarding the remedies to which Complainant is entitled. Therefore, the matter is REMANDED in accordance with the ORDER below.
ORDER (C0610)
Within sixty (60) calendar days of the date this decision becomes final, the Agency is ordered to take the following actions to the extent it has not done so already:
(1) Provide Complainant $5,837.29 in future pecuniary damages, and $2,506.97 in past pecuniary damages.
(2) Provide Complainant $50,000.00 in non-pecuniary damages.
(3) Provide the Attorney $15,000.00 for 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 corrective action has been implemented.
ATTORNEY'S FEES (H0610)
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.
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
February 1, 2013
__________________
Date
2
0120123231
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120123231