Brenda D. Steed, Complainant,v.R.L. Brownlee, Acting Secretary, Department of the Army, Agency.

Equal Employment Opportunity CommissionDec 8, 2003
01A23845 (E.E.O.C. Dec. 8, 2003)

01A23845

12-08-2003

Brenda D. Steed, Complainant, v. R.L. Brownlee, Acting Secretary, Department of the Army, Agency.


Brenda D. Steed v. Department of the Army

01A23845

December 8, 2003

.

Brenda D. Steed,

Complainant,

v.

R.L. Brownlee,

Acting Secretary,

Department of the Army,

Agency.

Appeal No. 01A23845

Agency No. 09710H0710

DECISION

Complainant timely initiated an appeal from a final agency decision (FAD)

concerning the amount of compensatory damages to which complainant was

entitled as a result of a finding of sexual harassment. The appeal is

accepted pursuant to 29 C.F.R. � 1614.405. For the following reasons,

the Commission affirms the agency's final order.

ISSUE

The issue on appeal is whether the agency properly determined that

complainant was entitled to payment of $11,968.72 in compensatory damages.

BACKGROUND

Complainant filed a formal complaint on November 20, 1997, alleging that

she was subjected to harassment by her supervisor, the Acting Branch

Chief (Chief), on the bases of race (White) and/or sex (female). At the

conclusion of the investigation, complainant was informed of her right to

request a hearing before an EEOC Administrative Judge or alternatively,

to receive a final decision by the agency. Complainant requested that

the agency issue a final decision.

In its FAD, the agency concluded that complainant failed to establish

her claim of harassment based on sex and/or race. In particular,

the agency found that complaint had not met her prima facie case of

race discrimination in that she failed to demonstrate that the alleged

harassment occurred because of her race. As to her claim of sexual

harassment, the agency found that complainant was not subjected to

unwelcome sexual conduct.

Complainant filed an appeal with the Commission, challenging the

agency's finding of no discrimination. In EEOC Appeal No. 01993047

(November 2, 2001), the Commission found that the agency was liable for

sexual harassment. The Commission further ordered the agency to conduct

a supplemental investigation into the question of whether complainant

should be awarded compensatory damages.

During the supplemental investigation, complainant asserted that she

was entitled to $26,380.29 in pecuniary damages: $2,470.50 for past

medical expenses, $1,800.00 for anticipated future medical expenses,

$193.00 in miscellaneous expenses, $22,109.71 for moving expenses; and

non-pecuniary damages of $390,000.00 plus $100.000.00 in punitive damages.

Complainant provided several sworn notarized statements from her sister,

friends and herself, which describe how the sexual harassment allegedly

ruined her life. Complainant alleged that she had to seek psychological

help, that she was unemployed for two years and she had to leave her

house and friends in Hawaii and move to a strange place.

The agency issued a second FAD on June 6, 2002, finding that complainant

was entitled to $11,968.72 in compensatory damages. Specifically,

the agency concluded that complainant was entitled to $1,968.72 in

past pecuniary damages from complainant's psychiatric treatment and

miscellaneous expenses; and $10,000.00 in non-pecuniary damages.

Complainant's claims for dermatology treatment, $153.00 worth of

miscellaneous expenses, and moving expenses were denied by the agency.

The agency concluded that complainant failed to established a nexus

between the agency's actions and her skin condition, and/or her moving

expenses. The agency further found that no evidence was provided showing

that the discriminatory actions prevented complainant from obtaining

subsequent employment, and that complainant's allegations of �loss of

wages and benefits� and �loss of credit/bad credit� are unsubstantiated.

On appeal, complainant contends, among other things, that she moved

from Hawaii not because of �lack of employment� but rather her �lack

of ability� to find work. Complainant contends that because of her

lack of self-esteem, lack of self-confidence, and a feeling of deep

depression directly caused by her being sexually harassed, she was

not able to perform well in interviews. Finally, complainant contends

that she should recover punitive damages, in the amount of $100,000.00,

because the agency acted with �malice and disregard, gross negligence,

and reckless indifference� after she complained about the harassment.

Complainant abandons her claims for $390,000.00 in non-pecuniary damages.

The agency stands on the record and requests that we affirm its final

decision.

ANALYSIS AND FINDINGS

Pecuniary Compensatory Damages

Complainant may be awarded damages for pecuniary losses which are directly

or proximately caused by the agency's discriminatory conduct. EEOC

Guidance: Compensatory and Punitive Damages Available Under Section 102

of the Civil Rights Act of 1991, EEOC Notice N-915.002 (July 14, 1992),

at 8. Pecuniary losses are out of pocket expenses that are incurred as a

result of the employer's unlawful action, including job-hunting expenses,

moving expenses, medical expenses, psychiatric expenses, physical

therapy expenses and other quantifiable out of pocket expenses. Id.

Past pecuniary losses are the losses that are incurred prior to the

resolution of a complaint via a finding of discrimination, an offer of

full relief, or a voluntary settlement, while future pecuniary losses are

those likely to occur after the resolution of the complaint. Id. at 8-9.

Benefits received by a complainant from a source collateral to the agency

may not be used to reduce the agency's liability for damages. See Finlay

v. United States Postal Service, EEOC Appeal No. 01942985 (Apr. 29, 1997).

The amount to be awarded for pecuniary losses can be determined

by receipts, records, bills, canceled checks, confirmation by

other individuals, or other proof of actual losses and expenses. To

recover damages, the complaining party must prove that the employer's

discriminatory act or conduct was the cause of his loss. EEOC Guidance:

Compensatory and Punitive Damages Available Under Section 102 of the

Civil Rights Act of 1991, EEOC Notice No. N 915.002 (July 14, 1992).

The critical question is whether the complaining party incurred the

pecuniary losses as a result of the employer's discriminatory action or

conduct. Id. We conclude that complainant failed to establish a nexus

between the harassment incident and her decision to move. We also find

that complainant failed to establish any nexus between her lack of ability

to find work and the harassment. The record reveals that complainant did

not lose her job as a result of the harassment, nor did the harassment

result in any tangible employment action. Complainant's medical evidence

did not support that complainant's mental condition precluded her from

finding a new job. Therefore, we find that complainant is not entitled

to moving expenses, nor front and back pay.

The record reveals that complainant claims past medical expenses, and that

the agency awarded $1,928.72. The record also reveals that on appeal,

complainant accepted that amount. Therefore, we will not address the

issue of past medical expenses.

Complainant also claims that she is entitled to future pecuniary

damages. In particular, complainant requested $1,800.00 for future

psychotherapy expenses. The record reveals that complainant's doctor

terminated complainant's treatment when complainant relocated to

California. The record contains no evidence that complainant needed

future treatment. It appears from the record that complainant never

resumed therapy during the past four years. Accordingly, we agree with

the agency that complainant is not entitled to any future pecuniary

damages.

Complainant further claims miscellaneous expenses for the amount

of $193.00. The record contain a $40.00 receipt for notarial

services; however, it did not contain evidence of the other amounts.

Complainant failed to proffer any evidence to support the amount

of $153.00. Therefore, we affirm the agency's decision to reimburse

complainant for the amount of $40.00 in miscellaneous expenses.

Punitive Damages

We note that complainant requested punitive damage; however, punitive

damages are not available to federal employees. See Jones v. Department

of Health and Human Services, EEO Request No. 05940377 (January 23, 1995),

citing Graham v. United States Postal Service, EEOC Request No. 05940132

(May 19, 1994); EEOC Guidance: Compensatory and Punitive Damages Available

Under Section 102 of the Civil Rights Act of 1991, EEOC Notice N-915.002

(July 14, 1992).

Non-Pecuniary Compensatory Damages

There is no precise formula for determining the amount of damages for

nonpecuniary losses, except that the award should reflect the nature and

severity of the harm and the duration or expected duration of the harm.

Loving v. Department of the Treasury, EEOC Appeal No. 01955789 (August 29,

1997); Rountree v. Department of Agriculture, EEOC Appeal No. 01941906

(July 7, 1995). We note that for a proper award of nonpecuniary damages,

the amount of the award should not be "monstrously" excessive standing

alone, should not be the product of passion or prejudice, and should be

consistent with the amount awarded in similar cases. See Ward-Jenkins

v. Department of the Interior, EEOC Appeal No. 01961483 (March 4, 1999).

The record reveals that the discrimination occurred between July 23,

1997, and August 27, 1997, and entailed inappropriate comments and

gestures of a sexual nature. After complainant reported the matter on

September 2, 1997, she was not subjected to any other sexual harassment.

Complainant provided medical documentation showing that she experienced

depression, anxiety, anger, and low self-esteem. Complainant alleged

that the sexual harassment took a physical and emotional toll on her,

causing her to be exhausted by the end of the workday. The Commission

finds that the agency's award of $10,000.00 in non-pecuniary damages

was appropriate. This amount takes into account the severity of the harm

suffered, and is consistent with prior Commission precedent. See Mullins

v. United States Postal Service, EEOC Appeal No. 01954362 (May 22, 1997)

($10,0000.00 award where complainant's depression and other emotional and

mental disorders were direct result of sexual harassment and reprisal);

Jones v. Department of Defense, EEOC Appeal No. 01973551 (April 14, 2000)

($9,000.00 award based on complainant's statements of the interference

with family and marital relations, anxiety, sleeplessness and exhaustion

resulting from the agency's discrimination); Guerra v. United States

Postal Service, EEOC Appeal No. 01982149 (July 19, 2000) ($10,000.00

award for physical and emotional harm in the form of exacerbation of

physical impairments, and stress caused by a supervisor's inappropriate

sexual behavior, solicitation and continued harassment).

Therefore, after careful review of the record, including arguments and

evidence not specifically discussed in this decision, the Commission

AFFIRMS the agency's final order and directs the agency to take the

corrective action in accordance with this decision and the Order below.

ORDER

The agency is ordered to take the following remedial action:

Within 60 days of the date this decision becomes final and only to the

extent it has not already done so, the agency shall pay to complainant

$11,968.72 in compensatory damages.

IMPLEMENTATION OF THE COMMISSION'S DECISION (K0501)

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 19848,

Washington, D.C. 20036. 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 (M0701)

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), 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 19848,

Washington, D.C. 20036. 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 (S0900)

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 (Z1199)

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 that the Court appoint

an attorney to represent you and that the Court 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 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

December 8, 2003

___________________________

Date