01971417
06-30-2000
Helena A. Wolfe, Complainant, v. Louis Caldera, Secretary, Department of the Army, Agency.
Helena A. Wolfe v. Department of the Army
01971417
June 30, 2000
Helena A. Wolfe, )
Complainant, )
) Appeal No. 01971417
v. ) Agency No. DA-92-09-0054
) Hearing Nos. 170-95-8393X
Louis Caldera, ) 170-95-8394X
Secretary, )
Department of the Army, )
Agency. )
)
DECISION
Complainant timely initiated an appeal from the agency's final decision
concerning her equal employment opportunity (EEO) complaint of unlawful
employment discrimination on the bases of sex (female) and reprisal
(prior EEO activity), in violation of Title VII of the Civil Rights Act of
1964, as amended, 42 U.S.C. � 2000e et seq.<1> The appeal is accepted
pursuant to 64 Fed. Reg. 37,644, 37,659 (1999)(to be codified at 29
C.F.R. � 1614.405). For the following reasons, the Commission AFFIRMS
in part, and REVERSES and REMANDS in part, the agency's final decision.
Complainant alleges she was discriminated against when:
(1) her work was not evaluated by her supervisor (Supervisor A), in the
same manner as her male counterparts;
(2) Supervisor A refused to allow her to fly with him when he checked
her aircraft, taking a male mechanic from another aircraft instead;
(3) she was subjected to gender-based harassment or reprisal for her prior
EEO activity based on continual disparate treatment through excessive
counseling and reprimands by Supervisor A; and
(4) she was subjected to sexual harassment creating a hostile work
environment.
The record reveals that complainant, a WG-10, Aircraft Mechanic at
the agency's Willow Grove, Pennsylvania facility, filed a formal EEO
complaint with the agency on July 23, 1992, alleging that the agency
had discriminated against her as referenced above. At the conclusion of
the investigation, complainant was provided a copy of the investigative
report and requested a hearing before an EEOC Administrative Judge (AJ).
Following a 4-day hearing, the AJ issued a 45-page decision finding that
complainant was discriminated against due to a hostile working environment
(allegation (4)). The AJ found no discrimination with regard to the
remaining allegations (1), (2), and (3).
The AJ concluded that complainant proved a case of sexual harassment
based on a hostile working environment. The AJ found that complainant
was subjected to unwelcome verbal conduct of a sexual nature when she
found her helicopter panel drawn with a silhouette of a woman with a
male genital by her mouth with the words "[Complainant's] Best Friend."
The AJ further found that the harassment complained of was based on sex.
But for complainant's being a female, she would not have been exposed
to this indecent act, and clearly the drawing was of a sexual nature.
The AJ found that this harassment had the effect of creating a hostile
environment. Furthermore, the AJ also found that although such offensive
conduct did not occur frequently at the agency, this particular act rose
to the level of sexual harassment given the severity of the message.
The AJ also noted the fact that although the agency held a meeting to
advise employees that such conduct was unacceptable, the AJ found the
meeting insufficient to meet the requirement that corrective action
be taken. Record testimony that there was joking and laughter at this
alleged remedial meeting supported the inference that the agency's pro
forma meeting did not have the effect of sending a strong message to
the employees. The AJ also noted that the agency failed to properly
investigate the incident in order to discipline the perpetrator.
The AJ also found the agency's efforts at remedying the situation were
ineffective, given the later discovery of additional offensive language
of a sexual nature directed at complainant written on a china cap.<2>
Although the AJ found the agency liable for the sexual harassment
that occurred, the AJ also found that complainant failed to establish
that she was entitled to compensatory damages. In a brief footnote,
the AJ explained that while she was persuaded by the complainant's own
testimony about her pain and suffering, complainant failed to specifically
address the panel incident as the basis for such. In other words, that
complainant failed to establish the required nexus between the sexual
harassment and her physical and emotional condition. The AJ further
noted that the mental health provider reports from two psychologists
failed to reveal a direct correlation between the specific panel
incident and complainant's physical and emotional condition. Finally,
the AJ found that because the complainant's sick leave records revealed
excessive absences both before and after the panel incident of 1992,
she could not establish a clear nexus between the sexual harassment and
her physical and emotional condition.
The agency's final decision affirmed the AJ's finding of no discrimination
with regard to allegations (1), (2), and, (3), as well as affirmed
the AJ's finding of no entitlement to compensatory damages. However,
the agency rejected the AJ's finding of discrimination with regard to
allegation (4) and as such, rejected the AJ's finding that complainant
was entitled to attorney's fees and costs.
On appeal, complainant contends that the AJ's decision correctly
summarized the facts and reached the appropriate conclusions of law
save the AJ's finding that compensatory damages are not appropriate in
this case. Complainant asserts that there can be no serious question
as to whether complainant has suffered emotional trauma in this case.
The record establishes that complainant suffered from daily bouts of
crying, anger, resentment, incidents if physical illness and a loss
of consortium. The only issue concerning pain and suffering as it
relates to this case, is whether the agency's discrimination caused the
existence of, or the elevation of complainant's psychological trauma.
Complainant further notes that while it is clear that her suffering
was caused, in part, by her perceptions of disparate treatment from her
supervisor, it is equally true that her emotional trauma resulted from the
entire sexually pervasive work environment, which included photographs,
as well as the helicopter panel incident. Complainant also appeals the
agency's denial of attorney's fees and costs.
Pursuant to 64 Fed. Reg 37,644, 37,659 (1999) (to be codified at
29 C.F.R. � 1614.405(a)), all post-hearing factual findings by an
Administrative Judge 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).
After a careful review of the record, the Commission finds that the AJ's
decision summarized the relevant facts and referenced the appropriate
regulations, policies, and laws. We discern no basis to disturb the
AJ's decision with regard to the merits of allegations (1), (2), (3), and
(4). We also agree with the AJ's assessment with regard to complainant's
use of sick leave. The record establishes that complainant suffered an
off-the-job injury in April of 1991 and a car accident in 1993 (which
placed her on light-duty for some time thereafter) which required her to
utilize much of her leave before and after the adverse actions presented
in this case occurred; thereby, making it impossible to establish what
leave was directly attributable to the agency's discriminatory actions.
In light of this fact, we find that complainant is not entitled to any
reimbursement of leave in relation to the finding of discrimination
in this case. However, after a careful review of the record, we find
that AJ erred when she found that complainant had not established an
entitlement to compensatory damages.
Section 102(a) of the 1991 Civil Rights Act authorizes an award of
compensatory damages for post-Act pecuniary losses and nonpecuniary
losses, such as, but not limited to, emotional pain, suffering,
inconvenience, mental anguish, loss of enjoyment of life, injury to
character and reputation, and loss of health. The Commission has the
authority to award such damages in the administrative process. West
v. Gibson, 119 S.Ct. 1906 (1999). Compensatory damages do not include
back pay, interest on back pay, or any other type of equitable relief
authorized by Title VII. To receive an award of compensatory damages,
a complainant must demonstrate that she has been harmed as a result of
the agency's discriminatory action; the extent, nature and severity of
the harm; and the duration or expected duration of the harm. Rivera
v. Department of the Navy, EEOC Appeal No. 01934157 (July 22, 1994),
req. for reconsid. denied, EEOC Request No. 05940927 (December 11,
1995); Compensatory and Punitive Damages Available Under Section 102
of the Civil Rights Act of 1991, EEOC Notice No. 915.002 at 11-12, 14
(July 14, 1992). A complainant is required to provide objective evidence
that will allow an agency to assess the merits of a complainant's request
for emotional distress damages. See Carle v. Department of the Navy,
EEOC Appeal No. 01922369 (January 5, 1993).
We disagree with the AJ's finding that merely because the complainant's
evidence did not directly attribute all of her pain and suffering to
the one-time panel incident that complainant is not entitled damages
in this case. The AJ's finding of discrimination encompassed the
creation of a hostile environment and noted that the complainant was
embarrassed by the meeting that followed the panel incident where the
panel was passed around, that the matter was not taken seriously by
the employees who laughed and joked about the panel at the meeting, and
that the agency's actions were ineffective given that china cap incident
which followed. Complainant submitted sufficient evidence to establish
that she suffered emotional harm as the result of the sexual harassment
that created the hostile work environment. As noted in the record,
complainant's own contemporaneous diary entries, letters to management,
buttressed by her hearing testimony clearly established the effect the
hostile environment had on her mental and emotional health. We note that a
complainant's own testimony, along with the circumstances of a particular
case, can establish mental or emotional harm. See Sinott v. Department of
Defense, EEOC Appeal No. 01952872 (September 19, 1996). In addition, one
of the complainant's treating psychologist's made mention to this effect
in her notes. One affidavit of a male co-worker, who no longer works
for the agency, stated that complainant was subjected to gender-based
comments and jokes concerning her personal life and work on daily basis
and that he observed complainant crying on numerous occasions due to the
treatment she received by supervisors and her co-workers. Unlike the AJ,
we find this evidence sufficient to establish complainant's entitlement
to compensatory damages.
There are no definitive rules governing the amount of nonpecuniary damages
to be awarded. However, nonpecuniary damages must be limited to the sums
necessary to compensate the injured party for actual harm, even where the
harm is intangible, see Carter v. Duncan - Higgins, Ltd., 727 F.2d 1225
(D.C. Cir. 1984), and should take into account the severity of the harm and
the length of time that the injured party has suffered the harm. Carpenter
v. Department of Agriculture, EEOC Appeal No. 01945652 (July 17, 1995).
Nonpecuniary and future pecuniary damages are limited to an amount of
$300,000.00. The Commission notes 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 Cygnar v. City
of Chicago, 865 F.2d 827, 848 (7th Cir. 1989); EEOC v. AIC Security
Investigations, Ltd., 823 F. Supp. 571, 574 (N.D. Ill. 1993).
In determining the amount of the award, we note that several Commission
decisions have awarded compensatory damages in cases where the complainant
presented less evidence than did complainant here. See Yates v. United
States Postal Service, EEOC Appeal No. 01973250 (March 11, 1999)($1,500
in nonpecuniary damages where the complainant provided only sparse
statements during the hearing regarding his emotional distress);
Pailin v. Department of Defense, EEOC Appeal No. 019514350 (January
26, 1998)($2,500 in nonpecuniary damages where the complainant was
denied training on the basis of race and testified that she experienced
tension, depression, and withdrawal from coworkers); DeMeuse v. United
States Postal Service, EEOC Appeal No. 01950324 (May 22, 1997)($1,500 in
nonpecuniary damages where the complainant was frisked by a supervisor,
and testified as to exacerbation of post-traumatic stress disorder);
Lawrence v. United States Postal Service, EEOC Appeal No. 01952288
(April 18, 1996)($3,000 in nonpecuniary damages for sexual harassment
where the complainant presented primarily non-medical evidence that
she was irritable, experienced anxiety attacks, and was shunned by her
co-workers); Benson v. Department of Agriculture, EEOC Appeal No. 01952854
(June 27, 1996)($5,000 in nonpecuniary damages where the complainant,
his relatives, and his colleagues offered testimony regarding the
embarrassment and humiliation suffered as a result of discrimination).
After careful consideration of all the evidence of record, as well
as arguments of the complainant on appeal, it is the decision of
the Commission that an award of $5,000 in non-pecuniary damages be
awarded to compensate complainant for severe emotional distress as a
result of the hostile environment created by the agency. In addition,
the record contains one document showing complainant incurred $130 in
out-of-pocket co-payments (after her health insurance paid) related to
her metal health care. Based on this evidence, we find that complainant
is entitled to be reimbursed for this past pecuniary loss.
Therefore, after a careful review of the record, including complainant's
arguments on appeal, and arguments and evidence not specifically
discussed in this decision, the Commission AFFIRMS the agency's final
decision with regard to allegations (1), (2), and (3), and REVERSES
allegation (4) and REMANDS the matter to the agency to take remedial
actions in accordance with this decision and the ORDER below.
ORDER (C1199)
The agency is ORDERED to take the following remedial action:
Within thirty (30) days of the date on which this decision becomes
final, the agency shall issue to complainant a check in the amount of
$5,130. representing the past pecuniary and non-pecuniary compensatory
damages owed complainant.
2. The agency shall take whatever actions it deems necessary, if it has
not already done so, including but not limited to the actions set forth
below, e.g., immediate removal of posters at the work place depicting
nude or semi-nude individuals, to ensure that other employees are not
subjected to sexual harassment in the future;
The agency shall take appropriate preventative steps to ensure that no
employee is subjected to sexual harassment and to ensure that appropriate
steps are taken immediately after management is notified of any such
harassment.
The agency shall provide to the supervisors involved herein a minimum of
eight (8) hours of as to their responsibilities under equal employment
law.
The agency shall take effective action to ensure that acts of sexual
harassment do not recur at the Willow Grove, Pennsylvania facility and
that no retaliatory actions are taken against an employee who opposes
unlawful discrimination, including sexual harassment.
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.
POSTING ORDER (G1092)
The agency is ORDERED to post at its Willow Grove, Pennsylvania 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.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K1199)
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 64
Fed. Reg. 37,644, 37,659-60 (1999) (to be codified and hereinafter
referred to as 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)(Supp. V 1993). If the complainant files a civil action,
the administrative processing of the complaint, including any petition for
enforcement, will be terminated. See 64 Fed. Reg. 37,644, 37,659 (1999)
(to be codified and hereinafter referred to as 29 C.F.R. � 1614.409).
ATTORNEY'S FEES (H1199)
If complainant has been represented by an attorney (as defined by 64
Fed. Reg. 37,644, 37,659-60 (1999) (to be codified and hereinafter
referred to as 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.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0300)
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 64
Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter referred
to as 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 64 Fed. Reg. 37,644, 37,661 (1999) (to be codified and hereinafter
referred to as 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).
COMPLAINANTS' RIGHT TO FILE A CIVIL ACTION (S0400)
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:
June 30, 2000
Date Carlton M. Hadden, Acting Director
Office of Federal Operations
NOTICE TO EMPLOYEES POSTED BY ORDER OF THE
EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
An Agency of the United States Government
This Notice is posted pursuant to an Order by the United States Equal
Employment Opportunity Commission ("EEOC") dated ____________ which
found that a violation of Title VII of the Civil Rights Act of 1964,
as amended, 42 U.S.C. � 2000e et seq., has occurred at this facility.
Federal law requires that there be no discrimination against any
employee or applicant for employment because of the person's RACE,
COLOR, RELIGION, SEX, NATIONAL ORIGIN, AGE, or PHYSICAL or MENTAL
DISABILITY with respect to hiring, firing, promotion, compensation,
or other terms, conditions or privileges of employment.
The U.S. Department of the Army, Willow Grove, Pennsylvania (hereinafter,
the facility), supports and will comply with such Federal law and will
not take action against individuals because they have exercised their
rights under law.
The facility has been found to have violated Title VII when it sexually
harassed a female employee by creating a hostile work environment. The
facility was ordered to immediately remove posters at the work place
depicting nude or semi-nude individuals; to take appropriate preventative
steps to ensure that no employee is subjected to sexual harassment and
to ensure that appropriate steps are taken immediately after management
is notified of any such harassment; to provide a minimum of eight (8)
hours of remedial training for all managers and supervisors located at
the Willow Grove, Pennsylvania facility, to ensure that acts of sexual
harassment do not recur, that no retaliatory acts are taken against any
employee who opposes unlawful discrimination, including sexual harassment
and that persons reporting instances of alleged sexual harassment are
treated in an appropriate manner; and to pay attorney's fees.
The facility, will not in any manner restrain, interfere, coerce,
or retaliate against any individual who exercises his or her right to
oppose practices made unlawful by, or who participates in proceedings
pursuant to, Federal Equal Employment Opportunity law.
_______________________________
Date Posted: __________________
Posting Expires: _______________
29 C.F.R. � 1614
1 On November 9, 1999, revised regulations governing the EEOC's federal
sector complaint process went into effect. These regulations apply to all
federal sector EEO complaints pending at any stage in the administrative
process. Consequently, the Commission will apply the revised regulations
found at 64 Fed. Reg. 37,644 (1999), where applicable, in deciding the
present appeal. The regulations, as amended, may also be found at the
Commission's website at www.eeoc.gov.
2 A china cap is a control button that screws into a post on a cyclical
stick for a search light.