0120082790
09-29-2008
Kenneth Holmes, Complainant, v. Dr. James B. Peake, Secretary, Department of Veterans Affairs, Agency.
Kenneth Holmes,
Complainant,
v.
Dr. James B. Peake,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 0120082790
Agency No. 200J05532004103600
DECISION
On June 3, 2008, complainant filed an appeal from the agency's May 6,
2008 final decision concerning his compensatory damages award regarding
an equal employment opportunity (EEO) complaint alleging employment
discrimination in violation of Title VII of the Civil Rights Act of 1964
(Title VII), as amended, 42 U.S.C. � 2000e et seq. The appeal is deemed
timely and is accepted pursuant to 29 C.F.R. � 1614.405(a). For the
following reasons, the Commission modifies the agency's final decision.
BACKGROUND
At the time of events giving rise to this complaint, complainant worked
as a part-time Housekeeping Aide at the agency's Medical Center facility
in Detroit, Michigan. On August 23, 2004, complainant filed an EEO
complaint alleging that he was subjected to sexual harassment by his
first level supervisor (S1). On June 21, 2005, the agency issued a
final decision finding no discrimination. In its decision, the agency
acknowledged that the sexual harassment occurred, but concluded that
no liability could be imposed because agency management took prompt
remedial action when complainant reported the harassment. Complainant
timely appealed the agency's final decision, and in our decision in
Holmes v. Department of Veterans Affairs, EEOC Appeal No. 0120055036
(November 9, 2007), the Commission reversed the agency's final decision.
We found that complainant was subjected to unlawful harassment in that
the actions alleged were sufficiently severe to create an intimidating,
hostile, and offensive work environment. We further found that the
agency was liable for the harassment. Specifically, we found that when
complainant reported the harassment to agency management, he was subjected
to an involuntary schedule change which further adversely affected his
employment. Our decision ordered the agency to take various remedial
actions, including the calculation of compensatory damages.
On May 6, 2008, the agency issued a final decision on complainant's
claim for compensatory damages. The agency found that, based on
the documentation submitted by complainant in support of his claim,
complainant was entitled to non-pecuniary damages in the amount of
$18,500.00. It is from this decision that complainant brings the
instant appeal. On appeal, complainant contends that the agency's
award is insufficient, and requests compensatory damages in the amount
of $300,000.00.
ANALYSIS AND FINDINGS
Pursuant to section 102(a) of the Civil Rights Act of 1991, a
complainant who establishes his or her claim of unlawful discrimination
may receive, in addition to equitable remedies, compensatory damages
for past and future pecuniary losses ( i.e., out of pocket expenses)
and non-pecuniary losses (e.g., pain and suffering, mental anguish). 42
U.S. C. � 1981a(b)(3). For an employer with more than 500 employees,
such as the agency, the limit of liability for future pecuniary and
non-pecuniary damages is $300,000.00. Id.
The particulars of what relief may be awarded, and what proof is necessary
to obtain that relief, are set forth in detail in EEOC Notice No. 915.002,
Compensatory and Punitive Damages Available Under Section 102 of the Civil
Rights Act of 1991 (July 14, 1992). Briefly stated, the complainant must
submit evidence to show that the agency's discriminatory conduct directly
or proximately caused the losses for which damages are sought. Id. at
11-12, 14; Rivera v. Department of the Navy, EEOC Appeal No. 01934157
(July 22, 1994). The amount awarded should reflect the extent to which
the agency's discriminatory action directly or proximately caused harm
to the complainant and the extent to which other factors may have played
a part. EEOC Notice No. N 915.002 at 11-12. The amount of non-pecuniary
damages should also reflect the nature and severity of the harm to the
complainant, and the duration or expected duration of the harm. Id. at
14.
In Carle v. Department of the Navy, the Commission explained that
"objective evidence" of non-pecuniary damages could include a
statement by the complainant explaining how he or she was affected
by the discrimination. EEOC Appeal No. 01922369 (January 5, 1993).
Statements from others, including family members, friends, and health
care providers could address the outward manifestations of the impact
of the discrimination on the complainant. Id. The complainant could
also submit documentation of medical or psychiatric treatment related
to the effects of the discrimination. Id. Non-pecuniary damages must
be limited to the sums necessary to compensate the injured party for the
actual harm and should take into account the severity of the harm and the
length of the time the injured party has suffered from the harm. Carpenter
v. Department of Agriculture, EEOC Appeal No. 01945652 (July 17, 1995).
Here, we find that the record clearly shows that complainant suffered
severe emotional distress as a result of the harassment, for a period
beginning in 2004, and continuing to the present. In support of his
claim for compensatory damages, complainant presented evidence that he
suffered depression, sleeplessness, anxiety, irritability, problems with
concentration, loss of self-esteem, and humiliation. Complainant states
that as a result of the harassment he began smoking a pack of cigarettes
per day and his alcohol consumption increased significantly. He states
that every night he "would come home and sit in the house and close
the blinds and drink." Complainant states that his relationships with
co-workers deteriorated, and that "every day [he goes] to work...people
look at [him] and basically harass [him], taunt [him], question [his]
sexuality and [his] sexual preference." Complainant also states that
his long-term relationship with his girlfriend ended as a result of the
harassment, and that many of his friends told him that he "should have
slept with" S1 and that he probably could have "gotten a full-time job
out of the thing." Complainant states that this has caused him to become
"a loner" because he no longer trusts anyone. (Report of Investigation,
Exhibit 4).
The record also contains affidavit testimony from one of complainant's
co-workers (CW), and the individual from whom he sought counseling and
guidance (SW), which corroborate many of complainant's contentions.
In his affidavit, CW stated that over a period of 3-4 years, as a result
of the harassment, complainant went from "kind-hearted" and "benevolent"
to "hostile" and "untrusting." CW also stated that complainant withdrew
from social interaction and "began to act as a hermit." (R.O.I.,
Exhibit 7). SW, who holds a Bachelor of Science degree in Behavioral and
Social Sciences, stated that complainant "began to alienate himself" and
sought "refuge in excessive drinking and smoking, therefore altering his
general physical appearance with a weight increase of 30 lbs." (R.O.I.,
Exhibit 6). We note, however, that the record shows that during the
period at issue, complainant was suffering financial difficulties as a
result of having been laid off from his full-time job due to a facility
closure, and that this was a contributing factor in the emotional harm
to complainant. (R.O.I, Exhibit 4).
Here, taking into account the evidence of non-pecuniary damages
submitted by complainant, the Commission finds that he is entitled
to non-pecuniary damages in the amount of $65,000.00. See Hibbert
v. Department of Justice, EEOC Appeal No. 0720070036 (October 25, 2007)
($60,000.00 award for non-pecuniary damages where the agency subjected
complainant to racial harassment that resulted in stress, frustration,
humiliation, and loss of self esteem); Viers v. U.S. Postal Service,
EEOC Appeal No. 01A14246 (June 20, 2002) ($65,000.00 in non-pecuniary
damages where the complainant stated that she suffered fatigue,
insomnia, marital strain, anxiety, loss of self esteem, depression, and
withdrawal due to harassment); Brown v. Department of Justice, EEOC Appeal
No. 01983712 (June 22, 2000) ($75,000.00 in non-pecuniary damages where
discrimination caused sleeplessness, insomnia, argumentative behavior,
depression, anxiety, low self-esteem, and increased irritability). Our
determination considers the emotional and physical symptoms described by
complainant, the corroborating testimony from CW and SW, the duration of
the harm, as well as the contributing factor of complainant's financial
difficulties. We further find that this award is not motivated by
passion or prejudice, is not monstrously excessive, and is consistent
with Commission precedent. 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).
CONCLUSION
Accordingly, the agency's decision is modified and remanded for further
processing in accordance with this decision and the Order below.
ORDER
The agency is ordered to take the following remedial action:
Within sixty (60) days of the date this decision becomes final, the agency
shall pay complainant $65,000.00 in non-pecuniary compensatory damages.
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.
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 (K0408)
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 (M0408)
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 (S0408)
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 (Z0408)
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
September 29, 2008
__________________
Date
2
0120082790
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
6
0120082790