Gaynell A., Complainant,v.Ray Mabus, Secretary, Department of the Navy, Agency.

Equal Employment Opportunity CommissionApr 4, 2014
0720100043 (E.E.O.C. Apr. 4, 2014)

0720100043

04-04-2014

Gaynell A., Complainant, v. Ray Mabus, Secretary, Department of the Navy, Agency.


Gaynell A.,

Complainant,

v.

Ray Mabus,

Secretary,

Department of the Navy,

Agency.

Appeal No. 0720100043

Hearing No. 430-2008-00185X

Agency No. DON-07-40085-00406R

DECISION

Following its August 9, 2010, final order, the Agency filed a timely appeal which the Commission accepts pursuant to 29 C.F.R. � 1614.405(a). On appeal, the Agency does not dispute the EEOC Administrative Judge's (AJ) 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. It does, however, request that the Commission affirm its rejection of certain relief ordered by the AJ. Specifically, the Agency disputes the AJ's award of front pay. In addition to responding to the Agency's appeal, Complainant has filed a cross-appeal, challenging the AJ's award of non-pecuniary compensatory damages.

ISSUE PRESENTED

The issue presented is whether the AJ's awards of front pay and $55,000 in non-pecuniary damages were appropriate.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as an Electrician with the Agency's Naval Facilities Engineering Command on the Norfolk, Virginia Naval Base (NAVFAC MIDLANT). Complainant was an employee of FSS Alutiiq Joint Venture (Alutiiq), which was contracted with the Agency to provide Electricians and other workers. On January 22, 2007, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the bases of sex (female) and reprisal for prior protected EEO activity under Title VII of the Civil Rights Act of 1964 when:

1. she was disparately treated and harassed regarding work assignments and work procedures, was ostracized, subjected to nasty remarks, monitored, and sabotaged; and

2. she was terminated on January 18, 2007. 1

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). Complainant timely requested a hearing. The AJ held a hearing on October 6 and 7, 2009, and issued a decision on November 18, 2009. The AJ's decision found that the Agency removed Complainant from employment in reprisal for participating in protected EEO activity. Thereafter, the AJ held a hearing on April 23, 2010, regarding remedies. The AJ issued a decision on July 29, 2010, awarding Complainant, among other things, non-pecuniary compensatory damages and front pay.

In particular, the AJ awarded Complainant $55,000 in non-pecuniary compensatory damages. In awarding that amount, the AJ noted that, although Complainant provided corroborative evidence from family, she did not providence medical evidence to support her claim for compensatory damages. The AJ also ordered the Agency to request that Alutiiq make Complainant an unconditional job offer for the Electrician position she had held on January 17, 2007. The AJ further ordered that if Alutiiq refused the Agency's request to rehire Complainant, then the Agency would be liable for front pay. The AJ ordered that the Agency's obligation for front pay would continue for five years, or until such time that Alutiiq no longer had a contract with the Agency to provide Electricians, whichever occurred first.

On August 27, 2010, the Agency issued a final order implementing the AJ's finding of discrimination and the awards of back pay, compensatory damages, attorney's fees, and costs. The final order also implemented the AJ's order that the Agency request that Alutiiq make Complainant an unconditional job offer for the Electrician position she previously held. However, the final order rejected the AJ's front pay award.2

CONTENTIONS ON APPEAL

Agency's Statement on Appeal

On appeal, the Agency does not contest the finding of discrimination, nor does it appeal the following relief ordered by the AJ: compensatory damages, back pay, costs, and attorney's fees. However, the Agency contests the AJ's order that if Alutiiq refused to make Complainant an unconditional job offer, it would be liable for front pay. The Agency contends that neither reinstatement nor front pay is an appropriate remedy in this case. In particular, the Agency contends that Complainant's expiring contract made her unavailable for reinstatement and front pay. The Agency contends that, as an employee of Alutiiq, Complainant was assigned to fulfill the company's duties under its contract, Task Order 0227. The Agency contends that the period of performance of this contract was from October 1, 2006, through September 30, 2007. The Agency contends that its joint employment relationship with Alutiiq ended on September 30, 2007, the date the task order expired. The Agency further contends that, although the Agency exercised options on Alutiiq's contract until 2010, there was no guarantee that Complainant's services would have been desired beyond September 30, 2007. The Agency further contends that an award of front pay for five years would over-compensate Complainant and be too speculative, given Complainant's employment status and disciplinary history with Alutiiq.

Complainant's Response to Appeal

In response, Complainant contends that an award of front pay is not unduly speculative. Complainant contends that she was considered an excellent Electrician and had no disciplinary record in her employment for Alutiiq. Complainant contends that Alutiiq has held a contract with the Agency for several years, which was scheduled to continue. Complainant contends that an award of front pay would not over-compensate her. Complainant further contends that the Agency cannot reference a single Electrician who was let go due to an expiring contract and who did not work past September 2007. Complainant contends that she is available for reinstatement because the Agency's contract with Alutiiq has continued.

Complainant's Cross-Appeal

On cross-appeal, Complainant contends that the AJ erred in not awarding her greater non-pecuniary compensatory damages. Complainant contends that she suffered emotional distress, and damage to her career and reputation. Complainant contends that her termination affected her ability to be hired as a civil service Electrician. Complainant contends that she became withdrawn, had crying spells, and lost interest in her family. Complainant contends that she ceased to be familiar with her neighbors, and instead spent most of her time in her room away from other people. Complainant contends that she lost interest in cooking, making clothing, and taking her family out. Complainant contends that she went without health insurance and had to discontinue her treatment and medication for anxiety. Complainant contends that she was forced into serious financial hardship, unable to pay for her son's education loans. Complainant also contends that she was unable to send money to her financially troubled brother who eventually lost his home. As a result, Complainant requests at least $250,000 in non-pecuniary compensatory damages.

ANALYSIS AND FINDINGS

Standard of Review

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. An AJ's credibility determination based on the demeanor of a witness or on the tone of voice of a witness will be accepted unless documents or other objective evidence so contradicts the testimony or the testimony so lacks in credibility that a reasonable fact finder would not credit it. See EEOC Management Directive for 29 CFR Part 1614 (MD-110), Chap. 9, at � VI.B. (Nov. 9, 1999).

Front Pay

Front pay is an equitable remedy that compensates an individual when reinstatement is not possible in certain limited circumstances. The Commission has identified three circumstances where front pay may be awarded in lieu of reinstatement: (1) where no position is available; (2) where a subsequent working relationship between the parties would be antagonistic; or (3) where the employer has a record of long-term resistance to anti-discrimination efforts. Tyler v. U.S. Postal Serv., EEOC Request No. 05870340 (Feb. 1, 1988). In order for an individual to be eligible for an award of front pay, the individual must be available to work. See Finlay v. U.S. Postal Service, EEOC Appeal No. 01942985 (Apr. 30, 1997); York v. Dep't of the Navy, EEOC Appeal No. 01930435 (Feb. 25, 1994).

In the instant case, the Agency contends that Complainant's expiring contract made her unavailable for work. Specifically, the Agency points to Task Order 0227, contending that its joint employment relationship with Alutiiq ended on September 30, 2007, the date the contract expired. The Agency contends that, although the Agency exercised options on Alutiiq's contract until 2010, there was no guarantee that the Complainant's services would have been desired beyond September 30, 2007. As such, the Agency contends that Complainant was unavailable for work and is not entitled to front pay. Contrary to the Agency's contentions, however, we find that Complainant was available for work, and therefore is entitled to an award of front pay.

We note that the Agency cites Brinkley v. U.S. Postal Serv., EEOC Appeal No. 07A40110 (Apr. 28, 2005), in support of its contention that Complainant is unavailable for work, and thus is not entitled to front pay. In Brinkley, we found that a complainant, jointly employed by an agency and contractor, was not entitled to front pay because the contractor's contract expired with the agency at the end of the fiscal year. We noted that the complainant was unavailable to work as a joint employee once the contract expired. In contrast, in the instant case, there is no dispute that, although the Agency's contract was set to expire at the end of the fiscal year, the Agency extended the contract with Alutiiq for its Electricians through 2010. Therefore, the joint employment relationship between the Agency and Alutiiq continued well beyond September 30, 2007.

The Agency also cites to Christmon v. Dep't of Veterans Affairs, EEOC No. 07A50006 (Mar. 18, 2005), in support of its contentions. In Christmon, we found that a complainant, also jointly employed, still would not have been employed by the Agency due to an expiring contract. We noted that it was too speculative to find that the complainant would have been hired by the new company taking over the contract. In this case, however, the Agency's contract continued with the same contractor employing the same Electricians. The record does not reflect that other jointly employed Electricians did not work beyond the end of the fiscal year due to expiration of the task order. It is clear that if Complainant had not been terminated, her employment would have continued beyond September 30, 2007. As such, we find that Complainant was available for work, and therefore is entitled to an award of front pay.

Next, we must determine the duration of the front pay award to which she is entitled. Courts have stated that "[f]ront pay has been defined as an affirmative order designed to compensate the plaintiff for economic losses that have not occurred as of the date of the court decree, but that may occur as the plaintiff works toward his or her rightful place." Shore v. Fed. Exp. Corp., 777 F.2d 1155, 1158 (6th Cir. 1985). The courts have been given discretion in selecting a cut-off date for an equitable front pay remedy subject to the limitation that front pay only be awarded "for a reasonable future period required for the victim to reestablish her rightful place in the job market." Goss v. Exxon Office System Co., 747 F.2d 885, 890 (3d Cir. 1984).

Here, we find that the AJ's award of front pay for five years is not appropriate. There is no dispute that the Agency's contract with Alutiiq continued for another three years. Therefore, it is reasonable to expect that, absent retaliation, Complainant would have been jointly employed until September 2010. We note that an employer must "place the employee in the same position he or she would have occupied absent discrimination." Price Waterhouse v. Hopkins, 490 U.S. 228, 276 (1989). Given that Complainant would have been jointly employed through September 2010, we find an award of three years' front pay to be appropriate. Given that Alutiiq did not refuse to rehire Complainant until September 3, 2010, the bulk of pay to be tendered to Complainant will, of necessity, take the form of back pay rather than front pay.

Non-Pecuniary Compensatory Damages

On cross-appeal Complainant contends that an award of at least $250,000 in non-pecuniary compensatory damages is appropriate. We note that Complainant contends that she was unable to pay for her son's education loans and support her financially troubled brother. However, the Commission cannot compensate Complainant for her son's and brother's harm allegedly caused by the Agency's actions against Complainant. See Mallon v. Dep't of Justice, EEOC Appeal No. 01996723 (Mar. 13, 2003) (finding the Commission could not compensate complainant for his wife's and son's harm). Further, Complainant contends that she had to discontinue her treatment and medication for anxiety, but provided no medical documentation in support of her contention. We have found that the absence of supporting evidence may affect the amount of damages deemed appropriate in specific cases. See Durr v. Dep't of the Treasury, EEOC Appeal No. 0120103491 (Feb. 3, 2011) (citing Lawrence v. U.S. Postal Serv., EEOC Appeal No. 01952288 (Apr. 18, 1996)).

Based on the testimony of Complainant and her family members, the Commission determines that the AJ's award of $55,000 is supported by substantial evidence of record and is consistent with the amounts awarded in similar cases. See, e.g., Omni v. Dep't of the Treasury, EEOC Appeal No. 0720100015 (Oct. 11, 2011) ($50,000 in non-pecuniary damages where complainant experienced crying and feeling upset, problems sleeping, feelings of depression, and headaches that caused her to seek medical attention); Scott v. Dep't of Energy, EEOC Appeal No. 0720070018 (Apr. 24, 2007) ($40,000 in non-pecuniary damages where complainant was subjected to sexual harassment and terminated); Wiggins v. Dep't of the Air Force, EEOC Appeal No. 07A10072 (July 23, 2002) ($40,000 in non-pecuniary damages where complainant was diagnosed with stress-related hair loss, and experienced depression, an upset stomach, and impaired relationship with her spouse for a period of 2 years); Garrett v. U.S. Postal Serv., EEOC Appeal No. 07A30024 (Feb. 25, 2004) ($35,000 in non-pecuniary damages where complainant experienced emotional distress, depression, anger, embarrassment, and humiliation, as well as headaches, and sleep difficulties, which were corroborated by a friend); Turner v. Dep't of Interior, EEOC Appeal No. 01956390 (Apr. 27, 1998) ($40,000 in non-pecuniary damages awarded where the agency subjected complainant to sexual harassment and retaliation, which resulted in depression, anger, anxiety, frustration, sleeplessness, crying spells, loss of self-esteem and strained relationships). Finally, we determine that this amount meets the goals of not being motivated by passion or prejudice, not being "monstrously excessive" standing alone, and being consistent with the amounts awarded in similar cases.

CONCLUSION

Based on a thorough review of the record and the contentions on appeal, we MODIFY the Agency's final order, and MODIFY, in part, the AJ's order of relief. This matter is REMANDED to the Agency for further processing in accordance with the ORDER below.

ORDER

Within ninety (90) calendar days of this decision becoming final, and to the extent it has not already done so, the Agency shall:

1. Calculate the amount of front pay due to Complainant, and pay that amount to Complainant. Additionally, the Agency shall provide to the Commission evidence that Complainant was issued payment of the calculated front pay. The period of front pay shall run from September 3, 2010, through the 2010 expiration of the Alutiiq contract extension under which Complainant otherwise would have been re-employed;

2. Determine the appropriate amount of back pay, with interest, and other benefits due Complainant, pursuant to 29 C.F.R. � 1614.501. If there is a dispute regarding the exact amount of back pay and/or benefits, the Agency shall issue a check to Complainant for the undisputed amount within sixty (60) calendar days of the date the Agency determines the amount it believes to be due. Complainant may petition for enforcement or clarification of the amount in dispute with the Commission's Compliance Officer;

3. Pay Complainant's attorney $28,980 in attorney's fees and costs, as ordered by the Administrative Judge;

4. Pay Complainant $55,000 in non-pecuniary compensatory damages;

5. Provide a minimum of eight (8) hours of EEO training regarding Title VII, to the responsible management official(s) management, to ensure that similar violations do not recur;

6. Consider taking disciplinary action against the management officials responsible for the discrimination against Complainant. The Commission does not consider training to constitute disciplinary action. The Agency shall report its decision to the 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 responsible management official(s) have left the Agency's employ, the Agency shall furnish documentation of their departure date(s).

7. Post a notice as set forth in the paragraph entitled "Posting Order" below.

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 evidence that the remedial action listed in this Order has been implemented.

POSTING ORDER (G0610)

The Agency is ordered to post at its NAVFAC MIDLANT Norfolk, Virginia, facility copies of the attached notice. Copies of the notice, after being signed by the Agency's duly authorized representative, shall be posted by the Agency within thirty (30) calendar days of the date this decision becomes final, and shall remain posted for sixty (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 ten (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)), 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 (Nov. 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 (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

April 4, 2014

Date

1 In EEOC Appeal No. 0120071769 (July 23, 2007), we reversed the Agency's dismissal of Complainant's complaint, finding that the Agency jointly employed Complainant with Alutiiq.

2 In compliance with the AJ's order the Agency requested that Alutiiq make Complainant an unconditional job offer for the Electrician position she previously held. However, on September 3, 2010, Alutiiq responded, stating that they could not rehire Complainant.

---------------

------------------------------------------------------------

---------------

------------------------------------------------------------

2

0720100043

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Office of Federal Operations

P.O. Box 77960

Washington, DC 20013

2

0720100043