07A10010_01A10533
03-14-2002
Judith A. McKoy, Complainant, v. Norman Y. Mineta, Secretary, Department of Transportation, Agency.
Judith A. McKoy v. Department of Transportation
07A10010 & 01A10533
03-14-02
.
Judith A. McKoy,
Complainant,
v.
Norman Y. Mineta,
Secretary,
Department of Transportation,
Agency.
Appeal Nos. 07A10010 & 01A10533
Agency Nos. 3983003, 3983061, 3983100
Hearing Nos. 110-98-8393X, 110-98-8278X, 110-98-8298X
DECISION
Concurrent with the issuance of its September 22, 2000 final order,
the agency filed a timely appeal which the Commission accepts pursuant
to 29 C.F.R. � 1614.405.<1>
Complainant, an Operations Manager, FG-301-14 employed at the agency's
Federal Aviation Administration (FAA), Southern Region Headquarters,
College Park, Georgia location, filed formal EEO complaints with the
agency on October 20, 1997, April 10, 1998, and September 10, 1998,
respectively, alleging that she was subjected to unlawful discrimination
in violation of Title VII of the Civil Rights Act of 1964 (Title VII), as
amended, 42 U.S.C. � 2000e et seq. Specifically, complainant alleged that
she was discriminated against on the bases of race (White), sex (female)
and reprisal for prior EEO complaint activity under Title VII when:
she was subjected to a hostile work environment when, among other things,
her authority was undermined, and she was disrespected by communications
and excluded from decision-making processes;
she was subjected to retaliation and a hostile environment when, among
other things, her duties and responsibilities were systematically taken
away; and
she was non-selected for the FG-301-15 position in 1998.
At the conclusion of the investigation, complainant was provided a copy of
the investigative report and requested a hearing before an Administrative
Judge (AJ). The AJ consolidated the three cases.
Following a hearing, the AJ found no discrimination in the first and third
cases, but found that complainant had proved reprisal in the second case.
The AJ ordered a hearing for compensatory damages.
The AJ held a two day hearing on damages. Thereafter, by decision
dated August 11, 2000, the AJ awarded complainant expenses related to
medical treatment, including $13,599.59 for medical charges, physical
therapy, medical tests and exams, and medicine, $235.50 for parking, and
$1,694.22 for mileage, for a total of $15,529.31 in pecuniary damages.
The AJ also awarded complainant $4,000.00 for future medical expenses
and $50,000.00 in non-pecuniary damages.
The AJ also awarded equitable relief. Specifically, this included
restoration of the complainant's duties assigned to her when she filed
her first EEO complaint, all due respect due her position, including
being invited to all agency meetings to which her position normally
would attend; removal of negative comments in her performance appraisals
since filing her first EEO complaint; assurance of no further reprisals,
and reimbursement of the leave complainant took in 1999, totaling 1,184
hours of sick leave and 322 hours of annual leave. Further, the AJ
awarded the complainant $16,886.75 in attorneys fees and $103 in costs.
The AJ also ordered the posting of a nondiscrimination notice.
On September 22, 2000, the agency issued a Final Agency Order modifying
only that part of the AJ's decision related to the non-pecuniary
damages award of $50,000.00. On appeal, the agency argues that the
non-compensatory damages award should be reduced from $50,000.00 to
$15,000.00, as is supported by the facts, circumstances in this matter
and precedent.
After a careful review of the record, we discern no basis to disturb
the AJ's award of non-pecuniary compensatory damages. 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), request for reconsideration 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. N 915.002 at 11-12, 14 (July 14, 1992). An award of
compensatory damages for non-pecuniary losses, including emotional harm,
should reflect the extent to which the respondent directly or proximately
caused the harm, and the extent to which other factors also caused the
harm. The Commission has held that evidence from a health care provider
is not a mandatory prerequisite for recovery of compensatory damages.
Carpenter v. Department of Agriculture, EEOC Appeal No. 01945652 (July
17, 1995). Courts have also held that �expert testimony ordinarily is
not required to ground money damages for mental anguish or emotional
distress.� Sanchez v. Puerto Rico Oil Co., 37 F.3d 712, 724 (1st
Cir. 1994), citing Wulf v. City of Wichita, 883 F.2d 842, 875 (10th
Cir. 1989); Busche v. Burkee, 649 F.2d 509, 512n. 12 (7th Cir.), cert
denied, 454 U.S. 897 (1981). A complainant's own testimony, along with
the circumstances of a particular case, can suffice to sustain his/her
burden in this regard.
The Commission notes that damage awards for emotional harm are difficult
to determine and that there are no definitive rules governing the amount
to be awarded in given cases. A proper award should be consistent with
awards made in similar cases. The Commission awards compensatory damages
based on the extent of the damages proved. See Ward-Jenkins v. Department
of the Interior, EEOC Appeal No. 01961483 (March 4, 1999) ($50,000,00
award for pain and suffering after being detailed and reassigned,
suffered a diagnosed acute distress disorder, and aggravation of her
depressive condition which was expected to last five years. During the
first two years, the employee lost energy, enjoyment in activities,
ceased recreating and socializing, became unkempt in appearance, was
anxious, had difficulty concentrating, had insomnia and nightmares,
and gained 100 pounds).
Based on the foregoing, we find that the AJ correctly determined that
complainant is entitled to an award of non-pecuniary damages in the amount
of $50,000.00 for pain and suffering experienced in connection with the
underlying harassment. In so finding, the Commission notes that the
record demonstrates that complainant suffered, and continues to suffer
emotional harm consisting of major depression, loss of respect at work,
increased frequency of headaches, stress, anxiety and fear of losing
her job, among other things. Complainant's husband and her physicians
indicated that as a result of work-related stress, complainant began
seeing a chiropractor for almost continuous severe headaches for which
she was taking up to ten or twelve or more Advil a day. She experienced
chest pains and severe muscle spasms which were also attributed to
work-related stress. Complainant was referred to a psychologist,
and physical therapy was ordered, as well as antidepressants.
Complainant's physician noted that although the medication prescribed
to her helped somewhat, complainant continued to have problems sleeping
too much and/or waking up during the night. In 1999, complainant began
seeing a psychiatrist and continues to see her. We also note that as
a result of work related stress in March 1999, complainant was ordered
off of the job by her physician and did not return until January 2000.
Further, the testimony is unrebutted that prior to her transfer to the
office in question, complainant saw a physician only once a year for her
annual physical. Given the facts in this case, we find, as did the AJ,
that complainant is entitled to an award of $50,000.00 in non-pecuniary
compensatory damages for pain and suffering resulting from reprisal.
The complainant is a prevailing party. If she wishes to apply for
additional attorney fees and costs incurred after the AJ's award of
fees and costs, she may do so in accordance with the instructions in
the paragraph below entitled �Attorney's Fees.�
As such, the Commission MODIFIES the agency's final order and REMANDS
the matter to the agency to take corrective action in accordance with
this decision and the Order below.
ORDER
To the extent that it has not already done so, the agency is ORDERED to
take the following remedial action:
The agency shall pay the complainant non-pecuniary compensatory damages
in the amount of $50,000.00, within sixty (60) calendar days of the date
this decision becomes final.
Reinstatement of 322 hours of annual leave.
Reinstatement of 1,184 hours of sick leave.
Pay for future medical expenses in the amount of $4,000.
Payment of attorney fees in the amount of $16,886.75, and $103.00
for costs.
Return of all duties and responsibilities held prior to filing of first
complaint.
Inclusion in all agency meetings to which complainant's position normally
would be invited.
Take steps to assure that no further retaliation is taken against
complainant.
Removal of all negative comments in her performance appraisals since
the filing of her first EEO complaint through August 11, 2000.
The agency shall take corrective, curative and preventative action to
ensure that reprisal discrimination does not recur. This shall include,
but is not limited to, providing training on employment discrimination
laws for the agency officials involved in claim 2 of complainant's
complaint, including her manager and supervisor during the relevant time
period. Within thirty (30) calendar days of the date the training is
completed, the agency shall submit to the compliance officer appropriate
documentation evidencing completion of such training. Further, the
agency shall consider taking disciplinary action against the manager and
supervisor identified as being responsible for the discriminatory reprisal
perpetrated against complainant. The agency shall report its decision.
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.
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. The agency shall send
a copy of this report, with a copy of all supporting documentation,
to complainant.
POSTING ORDER (G0900)<2>
The agency is ordered to post at its Atlanta, Georgia 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 (H0900)
If complainant has been represented by an attorney (as defined by
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.
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
____03-14-02______________
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., has occurred at the agency's facility in
Atlanta, Georgia (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.
This facility was found to have retaliated against an employee.
Accordingly, this facility was ordered to proffer this employee "make
whole" relief and award the employee with compensatory damages and
attorney fees incurred in the processing of the complaint. This facility
was ordered to ensure that officials responsible for personnel decisions
and terms and conditions of employment will abide by the requirements
of all federal equal employment opportunity laws and will not retaliate
against employees who file EEO complaints.
This facility will comply with federal law and 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 1614
1 On October 21, 2000, complainant also filed an appeal (01A10533)
regarding this case. Complainant maintains that the agency has failed
to fully implement the EEOC decision. In deciding this case, we are
consolidating complainant's appeal with the agency's appeal (07A10010).
2To the extent that it has not already done so, the agency is Ordered
to post the attached Notice.