07A30068
10-30-2003
Janella Burgess, Complainant, v. Anthony J. Principi, Secretary, Department of Veterans Affairs, Agency.
Janella Burgess v. Department of Veterans Affairs
07A30068
October 30, 2003
.
Janella Burgess,
Complainant,
v.
Anthony J. Principi,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 07A30068
Agency No. 20012332
Hearing No. 140-A1-8136X
DECISION
Following its January 8, 2003 final order, the agency filed a timely
appeal which the Commission accepts pursuant to 29 C.F.R. � 1614.405.
On appeal, the agency does not dispute the findings of an EEOC
Administrative Judge (AJ) that the agency discriminated against
complainant on the bases of sex (female) and retaliation for prior EEO
activity when she was harassed by her supervisor. However, the agency
requests that the Commission affirm its rejection of the AJ's order to
pay complainant the amount of $20,000.00 in compensatory damages. For the
following reasons, the Commission MODIFIES the agency's final order.
BACKGROUND
Complainant, a WG-3566-2 Housekeeping Aide employed at the agency's
Dorn VA Medical Center, Columbia, South Carolina (�facility�), filed
a formal EEO complaint with the agency on May 22, 2000, alleging that
the agency had discriminated against her on the bases of sex (female)
and reprisal for prior EEO activity when: (1) on March 8, 2000, her
supervisor (S1) made negative comments to her co-workers about her; and
(2) she was stalked on a continuous basis since March 8, 2000. At the
conclusion of the investigation, complainant was provided a copy of the
investigative report and requested a hearing before an AJ.
Following a hearing, the AJ found that complainant established a prima
facie case of hostile work environment sexual harassment discrimination.
The AJ found that the agency failed to establish an affirmative defense
to complainant's allegations of sexual harassment, and was therefore
liable for the sexual harassment to which complainant was subjected
by S1. The AJ then found that although complainant alleged non-sexual
harassment in her complaint, the harassment to which she was subjected
was sexual in nature. The AJ also found that there was no evidence that
complainant was subjected to reprisal. Turning to the subject of damages,
the AJ found that complainant was entitled to non-pecuniary damages in
the amount of $20,000.00. The AJ stated that in reaching this amount,
she considered a number of factors, including the nature and severity
of complainant's emotional duress and related symptoms, including
depression, sleeplessness and headaches. In addition, the AJ noted
that she considered that the harassment lasted more than six months and
included S1 spreading rumors about complainant throughout the facility.
In addition, the AJ ordered the agency to give EEO training regarding
sexual harassment to S1 and to consider disciplinary action against S1
for engaging in sexual harassment.
The agency's final order rejected the AJ's decision in part. The agency
accepted the AJ's decision regarding her findings that complainant was
the victim of sexual harassment. The final order also agreed with the
AJ's finding that complainant failed to establish that she was the victim
of reprisal or non-sexual harassment due a hostile work environment.
However, the final order disagreed with the AJ's finding that complainant
was entitled to non-pecuniary damages in the amount of $20,000.00.
As such, the final order declined to fully implement the AJ's decision,
and appealed the award of compensatory damages to the Commission.
In its brief on appeal, the agency alleges that the evidence presented
by complainant was insufficient to justify a compensatory damages award
of $20,000.00. The agency alleges that the statements of complainant
supporting her claim for non-pecuniary damages are vague and non-specific.
Further, the agency contends that complainant's assertions are not
corroborated by the evidence of record, and that the AJ impermissibly
considered the length and duration of the harassment in determining the
amount of the award.<1>
ANALYSIS AND FINDINGS
We note that the Civil Rights Act of 1991 (CRA) authorizes awards
of compensatory damages as relief for intentional discrimination in
violation of the Rehabilitation Act. 42 U.S.C. � 1981a. Compensatory
damages are recoverable in the administrative process. West v. Gibson,
119 S.Ct. 1996 (1999); see Jackson v. United States Postal Service,
EEOC Appeal No. 01923399 (November 12, 1992), req. to recon. den.,
EEOC Request No. 05930306 (February 1, 1993). Compensatory damages may
be awarded for losses and suffering due to the discriminatory acts or
conduct of the agency and include past pecuniary losses, future pecuniary
losses, and non-pecuniary losses that are directly or proximately caused
by the agency's discriminatory conduct. See Compensatory and Punitive
Damages Available Under Section 102 of the Civil Rights Act of 1991,
EEOC Notice No. N 915.002 (July 14, 1992) (Notice) at p. 8.
Generally, a compensatory damages award should fully compensate a
complainant for the harm
caused by the agency's discriminatory action even if the harm is
intangible. Id. at 13. Regarding
non-pecuniary damages, we note that such damages are designed to remedy
a harm and not to punish the agency for its discriminatory actions.
See Memphis Community School Dist. v. Stachura, 477 U.S. 299, 311-12
(1986)(stating that compensatory damages determination must be based on
the actual harm sustained and not the facts of the underlying case).
A proper award of non-pecuniary damages should not be "monstrously
excessive" standing alone, should not be the product of passion
or prejudice, and should be consistent with the amount awarded in
similar cases. See Ward-Jenkins v. Department of the Interior, EEOC
Appeal No. 01961483 (March 4, 1999) (citing Cygnar v. City of Chicago,
865 F. 2d 827, 848 (7th Cir. 1989)).
Section 1981a(b)(2) of the CRA 1991 indicates that compensatory
damages do not include back pay, interest on back pay, or any other
type of equitable relief authorized by Title VII. Section 1981a(b)(3)
limits the total amount of compensatory damages that may be awarded to
each complaining party for future pecuniary losses, emotional pain,
suffering, inconvenience, mental anguish, loss of enjoyment of life,
and other non-pecuniary losses, according to the number of persons
employed by the respondent employer. The limit for an employer with
more than 500 employees, such as the agency herein, is $300,000.00. 42
U.S.C. � 1981a(b)(3)(D).
To receive an award of compensatory damages, a complainant must
demonstrate the following:
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 recons. den. 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 (July 14, 1992),
at 11-12, 14.
Initially, the Commission notes that the agency incorrectly contended
on appeal that the AJ erred in considering the duration of the acts of
discrimination in determining the award of non-pecuniary compensatory
damages. As previously stated, it is appropriate to consider the
duration of the harm in determining an award of compensatory damages.
Rivera, supra. We further note that the AJ's award is consistent with
the amounts awarded in similar cases, given the level of harm experienced
by complainant. See Hutton v. United States Postal Service, EEOC Appeal
No. 01985377 (June 6, 2000) ($25,000.00 awarded for prolonged feelings
of frustration, anger, loss of self esteem, and a sense of betrayal);
Flythe v. Department of the Army, EEOC Appeal No. 01972258 (November 4,
2000) ($30.000.00 awarded for anger, pain, anxiety, depression, insomnia,
irritability, crying, some weight gain, and exacerbation of pre-existing
speech impediment); Knight v. United States Postal Service, EEOC Appeal
No. 01976645 (October 25, 2000) ($36,850.00 awarded for depression,
shortness of temper, frequent uncontrollable crying, insomnia, nightmares,
and strained relationships with others). The Commission further notes
that the amount awarded by the AJ 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. See
Cygnar, 865 F.2d at 848; EEOC v. AIC Security Investigations, Ltd.,
823 F.Supp. 573, 574 (N.D. Ill 1993). We therefore discern no basis to
disturb the AJ's decision.
Therefore, after a careful review of the record, including arguments
and evidence not specifically
discussed in this decision, the Commission modifies the agency's final
order. The agency is directed to take remedial action in accordance with
this decision and the Order below.
ORDER
The agency is ordered to take the following remedial action:
1. Within sixty (60) days of the date on which this decision becomes
final, the agency, if it has not
already done so, shall tender to complainant non-pecuniary compensatory
damages in the amount of $20,000.00.
2. Within sixty (60) days of the date this decision becomes final,
the agency, if it has not already done so, shall provide sufficient
training to the agency official identified as being responsible for the
sexual harassment against complainant, so that such official become
fully cognizant of the obligations and duties imposed by Title VII,
with an emphasis on sexual harassment.
3. The agency shall also consider taking appropriate disciplinary
action against the agency official who was found to have sexually
harassed complainant.
4. The agency shall comply with the 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 supporting documentation verifying
that the corrective action has been implemented.
POSTING ORDER (G0900)
The agency, if it has not already done so, is ordered to post at its
Dorn VA Medical Center, Columbia, South Carolina 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 (K0501)
Compliance with the Commission's corrective action is mandatory. The
agency shall submit its
compliance report within thirty (30) calendar days of the completion
of all ordered corrective action. The report shall be submitted to the
Compliance Officer, Office of Federal Operations, Equal Employment
Opportunity Commission, P.O. Box 19848, Washington, D.C. 20036. The
agency's report must contain supporting documentation, and the agency
must send a copy of all submissions to the complainant. If the agency
does not comply with the Commission's order, the complainant may petition
the Commission for enforcement of the order. 29 C.F.R. 1614.503(a). The
complainant also has the right to file a civil action to enforce
compliance with the Commission's order prior to or following an
administrative petition for enforcement. See 29 C.F.R. 1614.407, 1614.408,
and 29 C.F.R. 1614.503(g). Alternatively, the complainant has the
right to file a civil action on the underlying complaint in accordance
with the paragraph below entitled "Right to File A Civil Action." 29
C.F.R. 1614.407 and 1614.408. A civil action for enforcement or a civil
action on the underlying complaint is subject to the deadline stated in 42
U.S.C. � 2000e-16(c) (1994 & Supp. IV 1999). If the complainant files a
civil action, the administrative processing of the complaint, including
any petition for enforcement, will be terminated. See 29 C.F.R. �
1614.409.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
The Commission may, in its discretion, reconsider the decision in this
case if the complainant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. The appellate decision involved a clearly erroneous interpretation
of material fact or law; or
2. The appellate decision will have a substantial impact on the policies,
practices, or operations of the agency.
Requests to reconsider, with supporting statement or brief, must be filed
with the Office of Federal Operations (OFO) within thirty (30) calendar
days of receipt of this decision or within twenty (20) calendar days of
receipt of another party's timely request for reconsideration. See 29
C.F.R. � 1614.405; Equal Employment Opportunity Management Directive for
29 C.F.R. Part 1614 (EEO MD-110), 9-18 (November 9, 1999). All requests
and arguments must be submitted to the Director, Office of Federal
Operations, Equal Employment Opportunity Commission, P.O. Box 19848,
Washington, D.C. 20036. In the absence of a legible postmark, the
request to reconsider shall be deemed timely filed if it is received by
mail within five days of the expiration of the applicable filing period.
See 29 C.F.R. � 1614.604. The request or opposition must also include
proof of service on the other party.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely, unless extenuating circumstances
prevented the timely filing of the request. Any supporting documentation
must be submitted with your request for reconsideration. The Commission
will consider requests for reconsideration filed after the deadline only
in very limited circumstances. See 29 C.F.R. � 1614.604(c).
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (S0900)
You have the right to file a civil action in an appropriate United States
District Court within ninety (90) calendar days from the date that you
receive this decision. If you file a civil action, you must name as
the defendant in the complaint the person who is the official agency head
or department head, identifying that person by his or her full name and
official title. Failure to do so may result in the dismissal of your
case in court. "Agency" or "department" means the national organization,
and not the local office, facility or department in which you work. If you
file a request to reconsider and also file a civil action, filing a civil
action will terminate the administrative processing of your complaint.
RIGHT TO REQUEST COUNSEL (Z1199)
If you decide to file a civil action, and if you do not have or cannot
afford the services of an attorney, you may request that the Court appoint
an attorney to represent you and that the Court permit you to file the
action without payment of fees, costs, or other security. See Title VII
of the Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e et seq.;
the Rehabilitation Act of 1973, as amended, 29 U.S.C. �� 791, 794(c).
The grant or denial of the request is within the sole discretion of
the Court. Filing a request for an attorney does not extend your time
in which to file a civil action. Both the request and the civil action
must be filed within the time limits as stated in the paragraph above
("Right to File A Civil Action").
FOR THE COMMISSION:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
October 30, 2003
__________________
Date
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 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. (Title VII) has occurred at the agency's Dorn
V.A. Medical Center in Columbia, South Carolina (hereinafter �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 DISABILITY with respect
to hiring, firing, promotion, compensation, or other terms, conditions
or privileges of employment.
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 was found to have discriminated against an employee on the
basis of sex when the employee was sexually harassed by her supervisor.
The agency was therefore ordered to: (1) pay the employee non-pecuniary
compensatory damages in the amount of $20,000.00; (2) provide training
on Title VII and sexual harassment to the employee's supervisor; (3)
consider taking appropriate disciplinary action against the supervisor;
and (4) post this notice.
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. Part 16141 As the agency has not challenged the AJ's finding
that complainant was sexually harassed by S1, the Commission's decision
will be limited to the issue of compensatory damages.