Janella Burgess, Complainant,v.Anthony J. Principi, Secretary, Department of Veterans Affairs, Agency.

Equal Employment Opportunity CommissionOct 30, 2003
07A30068 (E.E.O.C. Oct. 30, 2003)

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.