0120131110
09-18-2015
Complainant, v. Sally Jewell, Secretary, Department of the Interior (National Park Service), Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Complainant,
v.
Sally Jewell,
Secretary,
Department of the Interior
(National Park Service),
Agency.
Appeal No. 0120131110
Agency No. NPS-2007-0216
DECISION
On January 30, 2013, Complainant filed an appeal from the Agency's January 14, 2013, final decision concerning the award of compensatory damages following a finding of 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 worked as a Supervisory Park Ranger at the Independence National Historical Park in Philadelphia, Pennsylvania. In this position, Complainant served as District Ranger in the Protection Division and was responsible for the management, administration, and supervision of visitor protection and law enforcement personnel. Complainant supervised six to eight employees.
On February 23, 2007, Complainant filed an EEO complaint alleging:
1. From September 2006 and continuing, Complainant was subjected to discriminatory harassment on the bases of race (African-American), sex (female), and in reprisal for prior EEO activity when someone posted derogatory written material about her in the men's locker room; co-workers and subordinates entered her office without speaking to her; and she was subjected to inappropriate comments from subordinate employees.
2. In February 2007, she was subjected to reprisal when the Agency assigned her to work the third floor, which contained the men's locker room.
3. On April 30, 2007, the Agency subjected her to discrimination on the bases of sex and race when she had to share her office with other employees.
4. In July 2007, the Agency revoked her law enforcement commission in reprisal for her EEO activity.
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 Equal Employment Opportunity Commission 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 concluded that Complainant failed to prove that the Agency subjected her to discrimination as alleged.
Complainant appealed the decision to the Commission. In EEOC Appeal No. 0120091468 (August 31, 2010), the Commission concluded that Complainant had established that she was subjected to discriminatory harassment. The decision indicated that, in June 2006, Complainant was temporarily promoted to the position of Operations Chief. In August 2006, she learned that the notice of her promotion had been posted in the men's locker room with the words -- "WORST DECISION EVER!!!"-- hand-written on top. Also posted was a newspaper article about bad bosses that also included a number of hand-written statements about Complainant, including that she:
* takes anti-depressants that don't work
* cannot qualify with any of her firearms
* lies
* speaks a strong form of Ebonics where everyone's first name gets an "s" added
* smells like rotten Right Guard
* broke her fingernail and took a week off sick
* shot a hole through the ceiling of an indoor firing range, thereby forever denying
access to that range for her entire agency
* accused a man with a Black wife of being prejudiced against Black women
* had employees sign blank reviews, then copies were given back with her comments written after the fact
* gave performance reviews of two employees while they sat together
* a LE [law enforcement] supervisor, living in Philly for over 13 years while
refusing to give up Arkansas license plates
* criticizes subordinates over the radio, even when she doesn't know circumstances
because she rarely leaves her office
* criticizes subordinates for improper uniform standards, while she herself is in
violation
* lives in low-cost government housing for the purpose of being an "on call
supervisor" and recently a car crashed through an iron gate surrounding her house, she didn't respond to the incident, claiming she was sleeping
* requested an officer to respond to her residence to investigate a suspicious condition while she was home.
In addition, the decision found that the evidence established that other personal attacks against Complainant continued, including employees acting in a hostile manner towards her, an "Ethnic Expression" catalogue left underneath Complainant's office door; a warning notice placed in Complainant's office mailbox; and a notice about the Agency's policy on hair color was left in Complainant's mailbox. The decision determined that the incidents occurred because of Complainant's race, although did not find a sufficient connection to Complainant's sex and/or prior EEO activity.
The Commission also held that the Agency was liable for the harassment Complainant experienced because management failed to take prompt and effective corrective action once it learned of the harassment. Moreover, management suspended Complainant's law enforcement commission in July 2007 due to her emotional response to the harassment. The decision found that the racial harassment was inextricably linked as the direct cause of the Agency's subsequent decision to revoke Complainant's law enforcement, and so the revocation should also be remedied. The decision ordered the Agency to take corrective action including: investigate and determine Complainant's entitlement to compensatory damages; expunge Complainant's records regarding the examination and the revocation of her law enforcement commission; provide training to all management and non-management officials; and consider disciplinary action to be taken against those who have subjected Complainant to harassment.
In October 2012, the Agency conducted an investigation into Complainant's entitlement to compensatory damages. Complainant sought $300,000 in non-pecuniary damages. Complainant provided an affidavit stating that she had never had prior mental health issues until she was subjected to the racial harassment at the Agency. As a result of the harassment, she stated she developed significant depression, anxiety and sleeping issues, as well as physical pain in her neck, shoulders, back, and headaches. Complainant was seen by several medical health providers in an attempt to address the mental and physical conditions which were a result of the Agency's actions. From December 2006 to January 2007, Complainant saw an Employee Assistance Program (EAP) counselor, who recommended that she consult with a psychologist and a psychiatrist. Complainant saw a Psychologist weekly from January 18 to April 6, 2007. The Psychologist diagnosed Complainant with high levels of anxiety and depression due to the workplace harassment. Complainant also saw the Psychiatrist starting in February 2007 up to the time of her affidavit in 2012. The Psychiatrist prescribed medications for Complainant, including Ambien, Ativan, Prozac, Welbutrin, and Lorazepam. Complainant supported her claim for compensatory damages with the records from the Psychologist, Psychiatrist and her couple's counselor (Counselor). Complainant also sought reimbursement for her co-payments for medical treatment and prescriptions.
Complainant also indicated that she was supposed to get married, but her fianc� did not understand her work issues, depression and anxiety. Complainant asserted that she tried to alleviate the symptoms through other means such as a health club membership and a trip to a resort in Arizona. Complainant also indicated that she gained weight and experienced a decrease in her sex drive. Complainant asked that the Agency compensate her for the wedding expense she incurred because the marriage never occurred. She also asked for reimbursement for the spa trip and personal trainer.
Complainant also noted that she had to take leave due to her medical issues following the harassment. She asserted that she used 625 hours of annual and sick leave. She also claimed that she had to borrow money from her Thrift Savings Plan (TSP) to cover her loss of pay due to Leave without Pay (LWOP). Complainant requested front pay for four years.
In addition to Complainant, her sister (Sister), her long-time friend (Friend) and her deacon (Deacon) provided statements to the Agency to support Complainant's claim for compensatory damages. Sister averred that, following the harassment, Complainant changed from her bubbling personality to one who was snappy, defensive and often crying. She also noted that Complainant and her fianc� had problems when the problems at work began. The Deacon stated that Complainant confided in him about the workplace harassment and that she had to seek professional counseling to deal with the workplace discrimination. He witnessed her break down in tears, lose her appetite, and experience rapid weight loss. He noted that Complainant still suffered with depression up to 2012 due to the discrimination. The Friend noted that Complainant had been vibrant. However, after the harassment began, she noted that Complainant lacked energy and her emotional state had been "crippled."
By memorandum dated December 17, 2012, the Agency responded to the Investigation of Complainant's claim for compensatory damages. The Agency challenged Complainant's assertion that the discrimination ruined her relationship with her fianc�. The Agency pointed to documents by the Psychiatrist which noted that Complainant's relationship issues with her fianc� was not solely caused by the workplace harassment. As for the trip to the spa and the health club membership, the Agency asserted that Complainant's health care professionals did not prescribe either of them. The Agency challenged Complainant's claim for restoration of leave, paying of the loans from her TSP, back pay, and front pay.
The Agency issued its final decision on January 14, 2013. The Agency determined that Complainant failed to establish a nexus between the cancelled wedding expenses and the discriminatory conduct. The Agency indicated that there was evidence that factors outside of the workplace harassment contributed to the failed relationship. As such, the Agency did not award Complainant for any losses related to the wedding. The Agency similarly denied Complainant's claim for $4,089.19 for treatment at a resort and $440.33 for a personal trainer. The Agency determined that Complainant did not establish the nexus between these expenses and the harassment. The Agency similarly denied Complainant's claim for repayment of her TSP loan noting that Complainant had not shown that the interest and penalties incurred due to the withdrawal of her TSP was a result of the discriminatory actions. The Agency approved Complainant's claim for copayments for therapy sessions in the amount of $1,469.00, and copayment for medications in the amount of $375.68. The Agency also provided Complainant $88.71 in costs related to her EEO complaint and $8,491.67 in fees for her attorney.
Complainant also requested future pecuniary damages which the Agency denied. The Agency did not find support for her assertion that she would continue to have episodes for the next five years. The Agency relied upon an evaluation conducted by an OWCP psychiatrist who found that she was in remission as of January 2008.
The Agency denied Complainant's request for back pay and front pay noting that those are equitable relief, not compensatory damages.
The Agency then turned to Complainant's claim for non-pecuniary damages. Considering the evidence provided by Complainant, the Agency found that part of Complainant's emotional distress could be attributed to factors other than the discrimination. The Agency found that Complainant experienced 15 months of symptoms as related to the harassment. Therefore, the Agency limited her claim of compensatory damages to $25,000.
This appeal followed without specific comment or argument. The Agency responded to the appeal by requesting that the Commission affirm its decision.
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. (Aug. 5, 2015) (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").
We note that Complainant sought front pay, back pay and leave restoration as part of her claim for compensatory damages. We will not address Complainant's requests since those remedies are not compensatory damages and are beyond the scope of order for relief in Appeal No. 0120091468. See Carter v. Dep't. of Veterans Affairs, EEOC Appeal No. 0120122266 (Oct. 18, 2012), see also Complainant v. U.S. Postal Serv., EEOC Appeal No. 0120141973 (Nov. 14, 2014).
Pursuant to section 102(a) of the Civil Rights Act of 1991, Complainant who establishes 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.
Pecuniary Damages
Objective evidence in support of a claim for pecuniary damages includes documentation showing actual out-of-pocket expenses with an explanation of the expenditure and, for non-pecuniary claims, statements from Complainant and others, including family members, co-workers, and medical professionals. See Notice; Carle v. Dep't of the Navy, EEOC Appeal No. 01922369 (Jan. 5, 1993). Awards are limited to compensation for the actual harm suffered as a result of the agency's discriminatory actions. See Carter v. Duncan-Higgans, Ltd., 727 F.2d 1225 (D.C. Cir. 1994); Notice at 13. The Agency is only responsible for those damages that are clearly shown to be caused by the Agency's discriminatory conduct. Carle, supra. To recover damages, Complainant must prove that the employer's discriminatory actions were the cause of the pecuniary or non-pecuniary loss. Notice at 8. An award of compensatory damages for non-pecuniary losses, including emotional harm, should reflect the extent to which the Agency's discriminatory action directly or proximately caused the harm and the extent to which other factors also caused the harm. Notice at 11-12.
The Agency found that Complainant establish a nexus between her medical treatment and the harassment. The Agency reimbursed Complainant for the receipts she provided in support of her claim of pecuniary damages, including those for the Psychiatrist, Psychologist, the Counselor, a chiropractor, and medication. Complainant has not specifically challenged the Agency's award nor has Complainant provided any additional receipts. Complainant provided her receipt for legal fees which the Agency agreed to pay. As such, we find no reason to modify the Agency's determination regarding Complainant's medical costs (copayments of $1,469 for therapy and $375.68 in prescriptions) and legal fees and costs ($8,491.67 in attorney's fees and $88.71 in costs).
The Agency denied Complainant's claim for pecuniary losses related to the cancellation of her marriage, her trip to a spa in Arizona, and her physical trainer. As for Complainant's losses related to the wedding, we note that the record is devoid of documentary evidence in support of pecuniary damages related to Complainant's out-of-pocket wedding expenses. Accordingly, we agree with the Agency and find that Complainant is not entitled to reimbursement of this expense. As for the spa trip and the physical trainer, Complainant has not provided evidence to show a nexus between the harassment and these expenses. As such, we agree with the Agency's decision to deny Complainant's request for reimbursement for these expenses.
Non-Pecuniary Damages
Next we turn to Complainant's claim for non-pecuniary damages. 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 health care providers could address the outward manifestations of the impact of the discrimination on the complainant. Id. 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).
As noted above, Complainant provided evidence that she was injured by the Agency's discriminatory action. She provided statements from individuals who knew her before and after she experienced harassment by the Agency. They supported her assertions that she went from a "bubbly" person to one who became depressed. As a result of the discrimination, she had to seek assistance from the Psychologist, Psychiatrist and counselors. Complainant also provided medical documentation from these individuals that show that she has been treated for depression, anxiety, and insomnia related to the harassment she experienced. The documentation also shows that she has been seeing the specialists starting in February 2007 and has continued to seek help for over the next five years.
The Agency used an evaluation that was conducted of Complainant by OWCP on January 11, 2008. The evaluation was conducted by a psychiatrist and the Agency relied on his finding that Complainant was in remission. We find that the medical reports by the Psychiatrist and the Psychologist, who have been treating Complainant over time, hold more weight than the OWCP evaluation done at the request of the insurance company and not for treatment purposes. Furthermore, even the OWCP report stated that Complainant "should remain in treatment with her psychiatrist and physiologist, in order to have the necessary support as she returns to the challenging job environment." Therefore, we find that the Agency's reliance on this evaluation solely for purposes of determining Complainant's harm was not appropriate.
After careful consideration of the evidence of record, we find an award of $75,000 for non-pecuniary compensatory damages is appropriate even if the emotional harm to Complainant only lasted the 16-17 months claimed by the Agency. This amount takes into consideration the nature of the discriminatory acts, the severity of the physical and emotional harm suffered, the length of time Complainant suffered the harm, other contributing factors, and is consistent with prior Commission precedent. See Crear v. Department of Veterans Affairs, EEOC Appeal No. 07A50079 (January 26, 2006) ($70,000 awarded in sex-based harassment case where complainant experienced anger, worry, embarrassment, feelings of disrespect and degradation, sleep problems, hair loss, and problems with her husband and children); McTier v. Department of the Navy, EEOC Appeal No. 07A30016 (March 2, 2004) ($85,000 awarded where complainant experienced constant sadness, depression, anxiety, distrust of her supervisors, irritability, guilt, frequent crying, feelings of betrayal, and a lack of energy); Miles v. U.S. Postal Service, EEOC Appeal No. 07A30019 (February 27, 2004) ($75,000 awarded in sexual harassment case where complainant worked in constant fear for more than three months and became angry, depressed, and distant from her husband); Wiggins v. Social Security Administration, EEOC Appeal No. 07A30048 (January 22, 2004) ($70,000 awarded where complainant cried frequently for three months and experienced stress, depression, insomnia, headaches, embarrassment, loss of self-esteem, increased back pain, and loss of enjoyment of life).
Accordingly, we conclude that an award of $ 75,000 will adequately compensate Complainant for the physical and emotional harm she suffered as a result of the discrimination established in this case.
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 award of compensatory damages and REMAND the matter for further processing in accordance with the ORDER below.
ORDER (C0610)
The Agency is ordered to take the following remedial action, to the extent it has not already done so, within forty-five (45) days of the date this decision becomes final:
1. The Agency shall pay Complainant $ 75,000.00 in non-pecuniary damages.
2. The Agency shall pay Complainant $ 10,425.06 in pecuniary damages and attorney's 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)), 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 (M0815)
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 Chap. 9 � VII.B (Aug. 5, 2015). 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 (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 (Z0815)
If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may request permission from the court to proceed with the civil action without paying these fees or costs. Similarly, if you cannot afford an attorney to represent you in the civil action, you may request the court to appoint an attorney for you. You must submit the requests for waiver of court costs or appointment of an attorney directly to the court, not the Commission. The court has the sole discretion to grant or deny these types of requests. Such requests do not alter the time limits for filing a civil action (please read the paragraph titled Complainants Right to File a Civil Action for the specific time limits).
FOR THE COMMISSION:
______________________________ Carlton M. Hadden's signature
Carlton M. Hadden, Director
Office of Federal Operations
September 18, 2015
__________________
Date
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