0120120012
07-15-2015
Complainant, v. Loretta E. Lynch, Attorney General, Department of Justice (Federal Bureau of Prisons), Agency.
Complainant,
v.
Loretta E. Lynch,
Attorney General,
Department of Justice
(Federal Bureau of Prisons),
Agency.
Appeal No. 0120120012
Hearing No. 551-2010-0068X
Agency No. P-2005-0274
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts Complainant's appeal from the Agency's August 26, 2011, 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. For the following reasons, we AFFIRM the Agency's final order which fully implemented the Equal Employment Opportunity Commission Administrative Judge's (AJ) award of compensatory damages and the finding that Complainant was not subjected to reprisal.
ISSUES PRESENTED
Whether the AJ correctly determined the amount of compensatory damages and whether the AJ correctly found that Complainant was not subjected to reprisal?
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Materials Handler Supervisor at the Agency's Materials Handler Food Service Unit in Seattle, Washington. On July 15, 2005, Complainant filed a formal complaint alleging that the Agency subjected her to a hostile work environment and discriminated against her on the bases of sex (female) and reprisal for prior protected EEO activity when: she was subjected to sexual harassment; and when she was given a lowered performance appraisal. Following an investigation by the Agency, Complainant requested a hearing before an AJ. A hearing was held on March 1 - 4, 2011. The AJ found that Complainant demonstrated that she was subjected to sexual harassment by her supervisor from December 2004 to May 2005. The evidence showed that: Complainant's supervisor moved Complainant's office without her permission to a different floor so that she would be next door to him; he requested that a window be placed between their offices so that he could constantly supervise her; he routinely had her stand or sit on the floor and at times on top of a garbage can in his office for several hours; he called her constantly and followed her throughout the Agency; he asked her where they were going at night; and he called her his at work wife. The AJ found that based on these factors Complainant proved her case of sexual harassment.
With respect to Complainant's assertion that she was subjected to reprisal when she received a lowered performance appraisal, the AJ found that she did not demonstrate that she was subjected to discrimination based on her prior EEO activity. The AJ determined that the Agency articulated legitimate, nondiscriminatory reasons for why Complainant's performance appraisal was lowered, namely, Complainant failed to complete an inventory after a computer program had been installed. Initially, Complainant was told by her supervisor to not worry about the inventory because a computer system was being installed and after its installation a complete inventory would need to be completed. Once the system was installed however, Complainant failed to complete the inventory in a timely manner and her performance appraisal was lowered. The AJ found that Complainant failed to show that the Agency's articulated nondiscriminatory reasons were pretext for discrimination.
During the liability phase, the AJ noted that Complainant presented evidence that she had panic attacks, was "in tears," and sought help at the Bureau's medical unit immediately after events with her supervisor in 2005. Complainant also sought medical help from her personal doctor on August 25, 2005, after complaining of constant crying, anxiety, and lack of concentration. She continued to receive treatment and medication on a regular basis. Complainant began seeing another doctor (D2) for treatment in 2007. Complainant was hospitalized for depression in 2008. D2 referred Complainant to a psychiatrist (D3) for further treatment in 2009.
D3 testified that he began treating Complainant in February 2009 for anxiety, depression, and periods of disassociation. D3 said Complainant experienced anxiety about leaving home, similar to agoraphobia, and she was always late. She had a decreased sense of self worth and was alienated from her husband, children, and friends. She had low energy and difficulty sleeping at night because she obsessed over the paperwork involved in her case. She had physical pain similar to fibromyalgia, which might have been psychosomatic. Her symptoms were similar to post-traumatic-stress-syndrome; however, D3 noted that there was no "near death" experience typically found in PTSD cases. D3 also noted that Complainant might have bipolar disorder and may have ADHD.
D3 further testified that the sexual harassment experienced at work was the primary cause of Complainant's condition. He indicated that he was treating Complainant with psychotherapy and had prescribed her medication which included Soboxian, Lithium, and other anti-depressants. D3 indicated that Complainant had not responded well. D3 acknowledged that Complainant had been physically assaulted and threatened by an inmate in 2001, and she feared getting a new inmate work crew. After she was told that she was getting another crew she did not returned to work. Other factors in Complainant's life had an affect on her mental health including the fact that her nephew committed suicide, two friends committed suicide, a family member was dying of cancer, and her brother was incarcerated within the federal prison system and was temporarily held at Complainant's worksite while she was there. Furthermore, Complainant's husband lost his job and she was in fear of losing her home.
D3 downplayed the effects of these other factors and stressed that Complainant's job at the Agency meant everything to her. She received her self-esteem from her job and it was important to her economically and emotionally. D3 concluded that the sexual harassment was the primary cause of Complainant's present condition. He listed her prognosis as guarded.
Complainant also had friends testify on her behalf. One friend indicated that Complainant told her that she felt uncomfortable sexually around her boss. Complainant started calling in sick to work, she slept on the couch in her work uniform. She started to sleep all of the time and became erratic, scattered, and manic. Complainant would start to make dinner for her family, but would crawl under the covers and not finish. She stopped bathing. She was afraid to walk out to her mailbox. She did nothing for the 2004 Christmas holiday.
The Agency's physician testified that based on his review of the record, the evidence did not support D3's assessment that the sexual harassment was the primary cause of Complainant's medical condition as there were too many life factors that Complainant was experiencing.
Based on the evidence, the AJ awarded, among other things, the following remedies after finding Complainant was subjected to discrimination: attorney's fees and the promise of no retaliation against Complainant or her witnesses, compensatory damages, as follows: (a) current pecuniary damages - $1,427.70 less any amount previously paid by workers compensation; (b) future pecuniary damages of $1000.00 for future co-pays and parking costs for medical treatment for the next two years;1 and (c) non-pecuniary damages in the amount of $75,000.00. The AJ found that multiple causes contributed to Complainant's medical condition, i.e., the prison assault, three suicides of a close relative and friends, and a change of work crew were incidents that were not linked to the finding of harassment.
The Agency issue a final order accepting the AJ's decision on liability and the remedy.
CONTENTIONS ON APPEAL
On appeal, Complainant contends among other things that the AJ erred in finding that her damages were the result of the totality of her life circumstances, rather than solely due to the sexual harassment she experienced. She asserts that the sexual harassment was the primary factor causing her medical conditions and as such the AJ erred in awarding her only $75,000.00. Complainant sought at least $175,000.00. Complainant explains that the suicide of her nephew did not cause her PTSD or agoraphobia. She attributed it to the sexual harassment and discrimination she was subjected to by her supervisor. She maintains the AJ also erred when he factored in the death of her two colleagues. She explains that she was not close to them and their situations were only used to point out the stress associated with her job. Complainant maintains that her coworkers' deaths were not related to her dramatic and sudden decline of her health. Additionally, she maintains that the transfer of her brother to her worksite did not contribute to her medical condition as it was nice being able to see him. Complainant maintains that the AJ erred in not relying on her physician's report which indicated that the treatment of her supervisor was the primary cause of her medical condition.
Complainant also asserts that the AJ erred in not making a finding of retaliation discrimination when she received a lowered performance evaluation. She contends that the supervisor told her not to focus on the inventory but then later she was rated lower because the inventory had not been done.
In response, the Agency maintains among other things that the AJ correctly calculated the non-pecuniary amount at $75,000.00, as Complainant had many life circumstances that the Agency's physician found must have contributed to her medical conditions. The Agency also asserted that the AJ correctly found that Complainant had not shown that she was subjected to reprisal as the Agency articulated legitimate, nondiscriminatory reasons for its actions and Complainant failed to show that the reasons were pretext for discrimination.
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.
In the instant case, neither the Agency nor Complainant is challenging the finding of discrimination regarding Complainant's sexual harassment claim; consequently, this issue will not be discussed.
With respect to Complainant's contention that the AJ erred in not finding discrimination on the basis of reprisal with respect to her performance appraisal, we agree with the AJ that the Agency articulated legitimate, nondiscriminatory reasons for its actions, namely that Complainant failed to complete the inventory after the computer system was up and running. We agree that Complainant failed to demonstrate that the Agency's reasons were pretext for discrimination. There is no dispute that Complainant was told to wait until the system was in place. The issue is, however, that once the system was installed Complainant failed to complete the inventory in a timely manner and her performance appraisal was lowered. There is no persuasive evidence that her previous EEO activity play a role in this matter. On appeal, regarding this matter Complainant reiterates arguments previously made and provides only conclusory statements regarding how she was "set-up" by management to fail. We find that there is substantial evidence to support the AJ's determination that Complainant did not establish discrimination with regard to this issue.
The next issue before us is whether the AJ properly awarded Complainant $75,000.00 in nonpecuniary damages. Based on the evidence, we agree with the AJ that the amount awarded to Complainant was warranted. While Complainant's treating physician indicated that he believed that the Agency's sexual harassment was the primary factor for Complainant's medical condition, the Agency's physician disagreed noting a long list of life experiences that he believed contributed to Complainant's medical condition. The life events included a nephew committing suicide, two coworkers who committed suicide, her brother being transferred to her work location as an inmate, an inmate assault, an altercation with another female employee, her husband losing his job, and the family home going up for sale to avoid the possibility of foreclosure. Based on this evidence, the AJ found that the discrimination Complainant was subjected to was one of several factors that caused the harm she experienced.
The Commission has long held that an Agency is liable only for those damages directly or proximately caused by discriminatory "conduct occurring" during the period in which discrimination is found. Wallis v. USPS EEOC Appeal No 01950510 (November 13. 1995). "Nonpecuniary damages must be limited to the sums necessary to compensate the injured party for actual harm ... taking into account the severity of the harm and the length of time that the injured party has suffered from the harm." Wallis. "The amount of the award should not be 'monstrously excessive'.... should not be the product of passion or prejudice, and should be consistent with the amount awarded in similar cases." Wallis. Damages from "other factors" are not compensable. Wallis. Where the Appellant has pre-existing conditions, the Agency is only liable for additional harm caused by the discrimination. Grimes v. Navy EEOC Appeal No OlAl0328 (August 27, 2002). The Administrative Judge's damages findings are entitled to deference. Perry v. Homeland Security EEOC Appeal No 0120071310 (January 3, 2008): Dickerson v. USPS, EEOC Appeal No 0720060043 (April 20, 2007); Brinkley v USPS EEOC Appeal No 07A40110 (April 28, 2005).
With respect to the amount awarded in this case, we find that the AJ properly addressed the above factors and found that the totality of the circumstances warranted an award of $75,000.00 which was consistent with previously awarded amounts.
After a review of the record in its entirety, including consideration of all statements submitted on appeal, it is the decision of the Equal Employment Opportunity Commission to AFFIRM the final Agency order because the AJ's findings are supported by the record.
ORDER
The Agency is ordered to take the following remedial actions within one hundred and twenty (120) calendar days of the date this decision becomes final, unless otherwise stated:
1. Payment of Complainant's reasonable attorney's fees.
2. No retaliation against Complainant or any witness in the case for having participated in the investigation and resolution of the case at issue.
3. Payment of compensatory damages to Complainant, as follows:
A. Current Pecuniary Damages: $1,427.70 less any amount previously paid by workers compensation.
B. Future Pecuniary Damages: $1,000.00.
C. Non-pecuniary Damages: $75,000.00.
4. Conduct necessary EEO training for all managers, supervisors, and employees at FDC Sea-Tac and its subordinate facilities with a special emphasis on management responsibilities with regard to claims of discriminatory harassment/hostile work environment.
5. The Agency shall consider taking appropriate disciplinary action against Complainant's supervisor who subjected her to discrimination. The Commission does not consider training to be disciplinary action. The Agency shall report its decision to the EEOC's compliance officer. If the Agency decides to take disciplinary action, it shall identify the action taken. If the Agency decides not to take disciplinary action, it shall set forth the reason(s) for its decision not to impose discipline. If the supervisor has left the Agency's employ, the Agency shall furnish documentation of his departure date(s).
POSTING ORDER (G0914)
The Agency is ordered to post at its Materials Handler Food Service Unit in Seattle, Washington copies of the attached notice. Copies of the notice, after being signed by the Agency's duly authorized representative, shall be posted both in hard copy and electronic format by the Agency within 30 calendar days of the date this decision becomes final, and shall remain posted for 60 consecutive days, in conspicuous places, including all places where notices to employees are customarily posted. The Agency shall take reasonable steps to ensure that said notices are not altered, defaced, or covered by any other material. The original signed notice is to be submitted to the Compliance Officer at the address cited in the paragraph entitled "Implementation of the Commission's Decision," within 10 calendar days of the expiration of the posting period.
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 (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
___7/15/15_______________
Date
1 Complainant's request for damages for her husband's job loss and the costs for preparing their house for sale to avoid possible foreclosure was denied as being too speculative and not a direct consequence of the sexual harassment by the Agency.
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0120120012
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120120012