Kimberly A. Cain, Complainant,v.Carlos. M. Gutierrez, Secretary, Department of Commerce, Agency.

Equal Employment Opportunity CommissionMar 18, 2005
07a40022 (E.E.O.C. Mar. 18, 2005)

07a40022

03-18-2005

Kimberly A. Cain, Complainant, v. Carlos. M. Gutierrez, Secretary, Department of Commerce, Agency.


Kimberly A. Cain v. Department of Commerce

07A40022

March 18, 2005

.

Kimberly A. Cain,

Complainant,

v.

Carlos. M. Gutierrez,

Secretary,

Department of Commerce,

Agency.

Appeal No. 07A40022

Agency No. 00-63-03337

Hearing No. 240-2001-05106X

DECISION

Following its October 31, 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 requests that the Commission affirm its rejection of

an EEOC Administrative Judge's (AJ) finding that the agency discriminated

against complainant on the bases of her sex and in reprisal for prior

EEO activity. The agency also requests that the Commission affirm its

rejection of the AJ's order awarding complainant compensatory damages.

For the following reasons, the Commission REVERSES the agency's final

order and AFFIRMS the AJ's finding of discrimination..

Complainant, a GS-0303-04, Geography Clerk employed at the agency's

Jeffersonville Processing Center facility, filed a formal EEO

complaint with the agency on November 20, 2000, alleging that the agency

discriminated against her on the bases of sex (female) and reprisal for

prior EEO activity when the agency allegedly subjected her to a hostile

work environment, including but not limited to, incidents in which she

was followed to the restroom, inappropriate comments were made to her,

she was followed to her vehicle after work, she was issued a Record of

Infraction on September 13, 2000, she was counseled for reporting to work

fifteen minutes late on August 25, 2000, and she received notification

on September 1, 2000, that she was being placed on leave restriction.

At the conclusion of the investigation, complainant was provided a

copy of the investigative report and requested a hearing before an AJ.

In a decision dated September 24, 2003, the AJ found that complainant

established that she was subjected to a hostile work environment based

on her sex and in reprisal for prior EEO activity. The AJ found that

the continued following of complainant by management and the issuance

of the Record of Infraction are related to complainant's sex and her

opposition to practices made unlawful under Title VII. As a result of

finding that complainant had suffered a tangible employment action with

regard to her sex and reprisal claims, the AJ concluded that the agency

could not avail itself of the affirmative defense. The AJ further found,

that even assuming there was no tangible employment action and the agency

could avail itself of the affirmative defense, it failed to prove the

defense by the preponderant evidence.

The agency's final order rejected the AJ's decision. On appeal, the

agency argues, among other things, that the AJ's finding of retaliation

discrimination is wholly unsupported by the record. The agency also

argues that the compensatory damages award is grossly excessive.

Pursuant to 29 C.F.R. � 1614.405(a), all post-hearing factual findings by

an AJ 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). An AJ's conclusions of law are subject to a

de novo standard of review, whether or not a hearing was held.

Thus, on appeal to this Commission, the burden is squarely on the party

challenging the AJ's decision to demonstrate that the AJ's decision is

erroneous. See EEO Management Directive-110, at 9-17 (Rev. 11/9/99).

In this case, this means that the agency has the burden of pointing out

to the Commission where and why the AJ's findings are erroneous as a

matter of law. Cf. id. (pointing out that �[t]he appeals statements of

the parties, both supporting and opposing the [AJ's] decision, are vital

in focusing the inquiry on appeal . . .�). In our view, the agency has

not done so.

Hostile Work Environment

Complainant may assert a Title VII cause of action if the discriminatory

conduct was so severe or pervasive that it created a hostile work

environment on the basis of race, color, religion, sex, national origin,

or reprisal. See Harris v. Forklift Systems, Inc., 510 U.S. 17 (1993).

In Trammel v. United States Postal Service, EEOC Appeal No. 01871154

(May 10, 1988), the Commission stated that to demonstrate a prima

facie case of a hostile working environment complainant must show: (1)

that she belongs to a protected group; (2) that she was subjected to

unwelcome harassment; (3) that the harassment complained of was based on

his protected status; (4) that the harassment affected a term, condition

or privilege of employment; and (5) that the agency knew or should have

known of the harassment.

Note that the first four elements of a prima facie case of a hostile

working environment relate to whether a hostile environment actually

existed. The fifth element, showing that the agency knew or should

have known of the harassment, addresses the issue of whether the agency

should be held liable for the existence of a hostile working environment.

An employer is subject to vicarious liability for sexual harassment when,

as here, it is �created by a supervisor with immediate (or successively

higher) authority over the employee.� See Burlington Industries,

Inc. v. Ellerth, 524 U.S. 742, 765 (1998); see also Enforcement Guidance:

Vicarious Liability for Unlawful Harassment by Supervisors, No. 915.002

(June 18, 1999) (�Vicarious Liability Guidance�). The agency can raise an

affirmative defense when complainant establishes a prima facie case, which

is subject to proof by a preponderance of the evidence, by demonstrating:

(a) that it exercised reasonable care to prevent and correct promptly

any harassing behavior; and, (b) the employee unreasonably failed to

take advantage of any preventive or corrective opportunities provided

by the employer or to avoid harm otherwise. Id., at Section V.

As a preliminary matter, the Commission notes that the agency does not

challenge the AJ's finding of sex discrimination with respect to actions

taken by two supervisors (S1: male, no known prior protected activity;

S2: male, no known prior protected activity). The agency does dispute

the AJ's finding that complainant's third-line supervisor (S3: male,

no known prior protected activity) subjected her to a hostile work

environment based on her sex and in reprisal for prior EEO activity.

In particular, the agency argues that the AJ's findings with respect to

S3 �are somewhat unclear, except for his finding that [S3] failed to take

prompt and effective correction action upon learning of the complaints.�

The Commission finds that the record is replete with evidence that S1

and S2 created a general work atmosphere that was hostile and severely

abusive to female employees. The record evidence also establishes that

at least fourteen female employees contacted the union and provided

statements regarding allegations similar to complainant's. The record

reflects that these statements were forwarded to S3. In fact, the union

met with S3 on several occasions with no action being taken. The record

evidence also establishes that S3 charged complainant absent without leave

(AWOL) and issued a Record of Infraction to complainant after she left

work following a confrontation with S2 about going to the bathroom.

Under these circumstances, the Commission agrees with the AJ's conclusion

that S3 harassed complainant based on her sex and in reprisal for prior

EEO activity. In reaching this conclusion, we note that S3 failed to

exercise reasonable care to prevent and correct promptly the harassing

behavior of S1 and S2. The Commission will now proceed to a discussion

of whether the amount of damages awarded by the AJ was excessive.

Compensatory Damages

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

compensatory damages for non-pecuniary losses (e.g., pain and suffering,

mental anguish). 42 U.S.C. � 1981 a(b)(3). In addressing the question of

compensatory damages, an AJ may conclude that a complainant is entitled

to an award of non-pecuniary damages to compensate him or her for the

intangible losses suffered as a result of the discriminatory conduct.

These can include, but are not limited to, emotional pain and suffering,

inconvenience, mental anguish, loss of enjoyment of life, injury to

character and reputation and loss of faith. The Supreme Court has held

that the Commission has the authority to award compensatory damages in

the federal sector EEO process. See West v. Gibson, 527 U.S. 212 (1999).

The particulars of what relief may be awarded, and what proof is

necessary to obtain non-pecuniary relief, are set forth in detail

in EEOC's Enforcement Guidance, Compensatory and Punitive Damages

Available Under Section 102 of the Civil Rights Act of 1991, Enforcement

Guidance, EEOC Notice No. 915.002 at pp. 12-13 (July 14, 1992) (Guidance).

Briefly stated, 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 trier of fact

should also take into account the severity of the harm and the length

of the time that the injured party has suffered the harm). The amount

awarded should reflect the extent to which the agency's discriminatory

action directly or proximately caused harm to complainant and the extent

to which other factors may have played a part. Guidance at 11-12.

Non-pecuniary damages are available to compensate an injured party for

actual harm, even where the harm is intangible. Carter v. Duncan-Higgins,

Ltd., 727 F.2d 1225 (D.C. Cir. 1984). Emotional harm will not be presumed

simply because complainant is a victim of discrimination. Guidance at 5.

The existence, nature, and severity of emotional harm must be proved. Id.

We note that for a proper award of non-pecuniary 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 Ward-Jenkins v. Department of

the Interior, EEOC Appeal No. 01961483 (March 4, 1999) (citing Cygnar

v. City of Chicago, 865 F.2d 848 (7th Cir. 1989)).

In Carle v. Department of the Navy, the Commission explained that

evidence of non-pecuniary damages could include a statement by

complainant explaining how she was affected by the discrimination.

EEOC Appeal No. 01922369 (January 5, 1993). Complainant could also

submit documentation of medical or psychiatric treatment related to the

effects of the discrimination. Id. However, evidence from a health care

provider is not a mandatory prerequisite to establishing entitlement to

non-pecuniary damages. Sinnott v. Department of Defense, EEOC Appeal

No. 01952872 (September 19, 1996).

The Commission finds that the AJ properly determined that complainant

established a nexus between the alleged harm and the discrimination.

Therefore, we will now review whether the AJ's award of $50,000.00

was appropriate.

The AJ arrived at $50,000.00 in non-pecuniary damages in the instant

case, based on complainant's own credible testimony regarding her

enormous stress and health issues during the subject period. The AJ

also relied on complainant's physician who credibly testified that

complainant was hospitalized for problems related, at least in part,

to the discriminatory conduct. The AJ further relied on the testimony

of complainant's mother<1>, who stated that her daughter experienced

difficulties with shingles during the period of times that she

was harassed. The AJ found that, as a result of the discrimination,

complainant felt as if she was in jail eight hours a day while at work,

she experienced changes in her personality, and she cried a lot.

Based on the foregoing, the Commission finds that complainant is entitled

to non-pecuniary damages in the amount of $50,000.00. We determine that

the AJ's award is consistent with the amounts awarded in similar cases.

See Viers v. United States Postal Service, EEOC Appeal No. 01A14246

(June 20, 2002) ($60,000.00 in non-pecuniary damages awarded based

on complainant's statements that she suffered fatigue, insomnia,

marital strain, anxiety, loss of self-esteem, depression, and

withdrawal due to harassment); Turner v. Department of the Interior,

EEOC Appeal No. 01956390 (April 27, 1998) ($40,000 in non-pecuniary

damages awarded based on reports from physicians linking complainant's

mental and physical problems to the agency's discrimination); Carpenter

v. Department of Agriculture, EEOC Appeal No. 01945652 (July 17, 1995)

($75,000 in non-pecuniary damages awarded based on statements from

complainant, his wife, and health care providers indicating that he

experienced, among other things, embarrassment, humiliation, mental

anguish, and loss of consortium). We note that this sum is meant to

compensate complainant for the emotional distress she suffered, which

was caused by the agency's discriminatory actions. Finally, this amount

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 v. City of Chicago,

865 F.2d 827, 848 (7th Cir. 1989).

Attorney's Fees

A finding of discrimination raises a presumption of an entitlement to

an award of attorney's fees. 29 C.F.R. � 1614.501(e). Attorney's fees

shall be paid for services performed by an attorney after the filing of

a written complaint. Id. An award of attorney's fees is determined

by calculating the lodestar, i.e., by multiplying a reasonable hourly

fee by a reasonable number of hours expended. Hensley v. Eckerhart,

461 U.S. 424 (1983); 29 C.F.R. � 1614.501(e)(2)(ii)(B). A reasonable

hourly rate is the prevailing market rate in the relevant community

for attorneys of similar experience in similar cases. Blum v. Stenson,

465 U.S. 886 (1984).

The record reflects that the AJ awarded complainant attorney's fees

in the amount of $30,337.50. The AJ concluded that an hourly rate of

$250.00 per hour for complainant's attorney and $100.00 per hour for

the paralegal were reasonable based on the highly complex nature of the

work involved in an employment discrimination case. The AJ also noted

that because the paralegal was a law school student, the hourly rate

was justified because of the enhanced set of skills. In response, the

agency argues that the attorney's request for fees and costs contains

multiple instances of inflated billing and vague and excessive charges.

The Commission finds that the amount of attorney's fees awarded by the

AJ is appropriate. In reaching this conclusion, the Commission notes

that complainant's attorney successfully represented her in the instant

sex discrimination and retaliation case. The Commission also notes that

complainant's representative submitted an invoice of his professional

services that was sufficiently detailed and did not indicate any duplicate

or vague billing entries. The Commission determines that there is not

sufficient evidence that would support a reduction of the attorney's

fees awarded by the AJ.

Based on the foregoing, we discern no basis to disturb the AJ's finding

of discrimination. The findings of fact are supported by substantial

evidence, and the AJ correctly applied the appropriate regulations,

policies, and laws. Therefore, after a careful review of the record,

including arguments and evidence not specifically discussed in this

decision, the Commission REVERSES 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 (D0403)

The agency is ordered to take the following remedial action:

The agency shall amend its personnel records to expunge any and all

references to the leave restrictions to which it subjected complainant.

Within thirty (30) calendar days of the date this decision becomes

final, the agency shall determine the appropriate amount of back pay

with interest and other benefits due complainant for the five hours

of loss wages as a result of having been charged AWOL on September 13,

2000, for an absence on September 7, 2000.

Within thirty (30) calendar days from the date this decision becomes

final, the agency shall provide complainant with a compensatory damages

award for non-pecuniary losses, to the extent that it has not already

done so, in the amount of $50,000.00 for the emotional distress suffered

by complainant that was proximately caused by the agency's unlawful

discrimination.

Within thirty (30) calendar days from the date this decision becomes

final, the agency shall provide complainant with attorney's fees, to

the extent that it has not already done so, in the amount of $30,337.50

which is based on an hourly rate of $250.00, for complainant's attorney,

and an hourly rate of $100.00 for the paralegal, plus any reasonable

attorney's fees and costs incurred in the processing of this appeal.

See EEOC Management Directive 110, November 1999, Chapter 11.

Within thirty (30) calendar days of the date this decision becomes final,

the agency shall provide complainant an award of costs, to the extent

that it has not already done so, in the amount of $318.57.

Within one hundred and twenty (120) calendar days of the date this

decision becomes final, the agency shall provide eight (8) hours of EEO

training for all responsible management officials to sensitize them to

the issue of discrimination in the workplace, and to inform them of their

responsibilities as federal management officials to adhere to EEO laws.

The agency shall consider taking appropriate disciplinary action

against the responsible management officials. The Commission does not

consider training to be disciplinary action. The agency shall report

its decision to the compliance officer. 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. If any of the responsible

management officials have left the agency's employ, the agency shall

furnish documentation of their departure date(s).

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 of the

agency's payment of any and all amounts due complainant, including

evidence that the corrective action has been implemented.

POSTING ORDER (G0900)

The agency is ordered to post at its Jeffersonville Processing Center

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

March 18, 2005

__________________

Date

1The record establishes that complainant's mother also worked at the

agency as an EEO Specialist.