01a50353
03-29-2005
Kristine Read, Complainant, v. Michael Chertoff, Secretary, Department of Homeland Security, Agency.
Kristine Read v. Department of Homeland Security
01A50353
March 29, 2005
.
Kristine Read,
Complainant,
v.
Michael Chertoff,
Secretary,
Department of Homeland Security,
Agency.
Appeal No. 01A50353
Agency Nos. HS-03-0241; I-00-W143
DECISION
Complainant appeals to the Commission from the agency's September 15, 2004
decision with regard to the appropriate amount of compensatory damages and
attorney's fees she should be awarded upon a finding of discrimination.
Complainant alleged discrimination on the bases of race (Caucasian)
and sex (female) when her supervisor made racist comments to her and
sexually harassed her when: (1) in April of 1999, complainant engaged in
a non-consensual<1> sexual relationship with her supervisor; (2) since
March of 1999, complainant's supervisor has initiated sexually suggestive
or otherwise inappropriate conversations with her; and (3) on May 12,
2000, complainant's supervisor spoke to her and two female coworkers
in a demeaning or otherwise inappropriate manner. By decision dated
December 24, 2003, the agency issued a decision finding discrimination
on the basis of sex when complainant was sexually harassed in all three
incidents. However, the agency found that complainant was not subjected
to discrimination on the basis of race.
The agency, in its December 24, 2003 decision, awarded the following:
The record shows that [Mr. X] was transferred from Complainant's workplace
after Complainant filed her complaint, and it is clear that the harassing
conditions no longer exist. [Mr. X] was removed from a supervisory
position, but it is unclear whether the removal was temporary pending
a decision in this case. Based on the finding of sexual harassment in
this case and the severe nature of the harassment, [the agency] should
refrain from placing [Mr. X] in a supervisory position for the remainder
of his employment with the agency.
[The agency] is hereby ordered to conduct training for supervisors and
managers at the Bakersfield/Investigations sub-office on sexual harassment
and management's responsibilities when informed of alleged harassment.
As stated above, Complainant is entitled to compensatory damages.
Therefore, Complainant should submit, within sixty days of receipt of
this decision, a claim for such damages, if any, to [Ms. Y], Chief, EEO
Complainants Management Office � Twin Cities, Bureau of Citizenship and
Immigration Services, Federal Building, Room G-56C, 1 Federal Drive,
Fort Snelling, MN 55111. In order to recover compensatory damages,
Complainant's claim must be well-supported, and should include a verified
statement detailing her injuries and linking those injuries with the
harassment experienced in this case. Complainant should also include any
other relevant documentation or supporting evidence, such as documentation
of lose wages and medical bills. Complainant may want to include
statements from medical personnel, as well as statements from those who
know her well and can corroborate her claim. The [agency's] Office for
Civil Rights and Civil Liberties will then evaluate Complainant's claim
for compensatory damages and determine an appropriate award.
As a prevailing party in this case, Complainant is also entitled to an
award of reasonable attorney's fees, if any, pursuant to 29 C.F.R. �
1614.501(e). Complainant's attorney must submit, within thirty days of
receipt of the decision, a verified statement of costs and fees with
an affidavit itemizing the charges for work on those aspects of the
case upon which Complainant prevailed. 29 C.F.R. � 1614.501(e)(2)(i).
Other supporting documentation should also be submitted at this time.
This documentation should be submitted to [Ms. Y], Chief, EEO Complaints
Management Office � Twin Cities, Bureau of Citizenship and Immigration
Services, Federal Building, Room G-56C, 1 Federal Drive, Fort Snelling,
MN 55111. The [agency's] Office for Civil Rights and Civil Liberties
will then evaluate the claim for attorney's fees and costs and determine
and appropriate award. See 29 C.F.R. � 1614.501(e)(2)(i),(ii)(A).
Complainant may be entitled to restoration of sick leave used while
[Mr. X] was her supervisor, as well as sick leave used after [Mr. X]
was removed as Complainant's supervisor, if she can demonstrate that the
sick leave she used was a direct result of being subjected to harassment.
Complainant should submit, within sixty days, a claim for such restoration
of sick leave, if any, to [Ms. Y], Chief, EEO Complaints Management
Office � Twin Cities, Bureau of Citizenship and Immigration Services,
Federal Building, Room G-56C, 1 Federal Drive, Fort Snelling, MN 55111.
In order to receive restoration of her sick leave, the link between
the sick leave used by Complainant and the harassment must be well
supported. [The agency] should then evaluate Complainant's claim for
restoration of sick leave, determine an appropriate amount, and restore
Complainant's sick leave.
[The agency] shall post a notice consistent with Appendix A of 29
C.F.R. Part 1613, 29 C.F.R. Part 1614.501(a)(1) . . .
[The agency] is directed to report the status of the relief ordered to
this office within ninety days of this decision.
The agency, in response to complainant's submissions, issued a decision
dated September 15, 2004, with regard to damages. The September 15,
2004 decision awarded the following:
Pay Complainant $14,822.66 in pecuniary compensatory damages and
$130,000.00 in non-pecuniary compensatory damages; and
Restore to Complainant 45 days (360 hours) of sick leave.
Complainant appeals the September 15, 2004 decision. Neither party
challenges the findings with regard to discrimination. Thus, we find
no reason to disturb the finding of discrimination or the finding of
no discrimination.
As way of background, the agency found, in its December 24, 2003 decision
that complainant had been subjected to sexual harassment beginning in
March 1999. Complainant was subjected to escalating unwelcome sexual
comments by her supervisor, Mr. X. These unwelcome sexual comments lead
to coerced sexual contact in the office on two occasions. Complainant
discovered, on May 5, 1999, that she was pregnant. Complainant's husband
went to the doctor to determine whether his vasectomy from the year before
somehow failed. He learned that he was indeed sterile. Complainant told
her husband that she got pregnant from her supervisor after coerced
sexual encounters. Complainant's supervisor urged complainant to have
an abortion. Complainant and her husband made the decision to abort
the pregnancy. After the abortion, complainant continued to receive
unwelcome sexual comments from her supervisor despite her explicit desire
that he stop. The sexual harassment continued until May 2000, when she
initiated EEO Counselor contact. However, complainant was still made to
work in the same office with the supervisor until she accepted a transfer.
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, in addition to equitable remedies, compensatory damages for
past and future pecuniary losses and non-pecuniary losses. 42 U.S.C. �
1981a(b)(3). For an employer with more than 500 employees, such as this
agency, the limit of liability for future pecuniary and non-pecuniary
damages is $300,000.00. Id. In West v. Gibson, 527 U.S. 212 (1999),
the Supreme Court held that the Commission has the authority to award
compensatory damages in the federal sector EEO process.
The agency awarded $14,822.66 in pecuniary damages for medical expenses.
The medical expenses were awarded to reimburse complainant for bills
from Blue Cross, Dr. Z, Family Care Providers Medical Group, Truxtum
Psychiatric Medical Group, Hina's Southwest Pharmacy, and Rite Aid.
Complainant requested $30,000 for the monetary loss of having to sell
her home due to financial hardship. The agency denied complainant's
request after finding that complainant did not show a sufficient nexus
between the financial loss and the discrimination. Complainant also
requested $15,164.11 for 1,111 hours of sick and annual leave used
from 1998 through 2003. The agency found that complainant's request
was not accompanied by documentation that the leave was taken in
response to the sexual harassment, with the exception of the doctor's
recommendation that complainant take 360 hours of sick leave due to
emotional distress. Thus, the agency awarded complainant 360 hours of
sick leave. Complainant requested $25,000 for future medical expenses.
The agency denied complainant's request after finding that the request
was speculative and that she did not show with certainty her needs for
future medical attention.
The agency awarded complainant $130,000 in non-pecuniary compensatory
damages for emotional distress. With regard to non-pecuniary compensatory
damages, the agency found that complainant suffered significant physical
and mental problems. Complainant suffered from hives, severe stomach
problems, heartburn, burning in her stomach and rectal bleeding.
She suffered from acid reflux disease, sleep disturbance, weight gain,
fatigue, vertigo and feelings of guilt over the abortion. She did not
want her husband to touch her and lost desire for intimacy. She also
was evaluated as �suicidal with a concrete plan.�
After a review of the record we find no basis not disturb that agency
award of $14,822.66 in pecuniary damages for medical expenses or 360
hours of restored sick leave. Further, we agree wit the agency that
complainant is not entitled to future medical bills or loss of money from
selling her home because complainant failed to present a nexus between
the harassment and those requests. Moreover, we find no basis to change
the amount of non-pecuniary compensatory damages awarded to complainant.
In determining compensatory damages, the Commission strives to make damage
awards for emotional harm consistent with awards in similar cases. Insofar
as complainant has submitted evidence of emotional distress, we note
that the Commission has awarded compensatory damages in cases somewhat
similar to complainant's in terms of harm sustained. See e.g. Hughes
v. Department of Veterans Affairs, EEOC Appeal No. 07A10095(August 30,
2002)(awarding $125,000 in non-pecuniary compensatory damages after
complainant suffered from post traumatic stress disorder, sexual
dysfunction, failure of his marriage and lingering social phobias
after being sexually harassed), request for reconsideration denied,
EEOC Request No. 05A30060 (March 18, 2003).
After considering the nature of the agency's discriminatory action,
we find the award of $130,000 in non-pecuniary damages appropriate.
Finally, we note that this award is not �monstrously excessive� and
consistent with the amounts awarded in similar cases.
Attorney's fees
Title VII authorizes the award of reasonable attorney's fees, including
for an attorney's processing of a compensatory damages claim. 29 C.F.R. �
1614.501(e). To establish entitlement to attorney's fees, complainant
must first show that he or she is a prevailing party. Buckhannon Bd. and
Care Home Inc. v. West Virginia Dept. of Health and Human Resources,
532 U.S. 598 (2001). A prevailing party for this purpose is one who
succeeds on any significant issue, and achieves some of the benefit
sought in bringing the action. Davis v. Department of Transportation,
EEOC Request No. 05970101 (February 4, 1999) (citing Hensley v. Eckerhart,
461 U.S. 427, 433 (1983)).
Complainant requested $17,220.00 in attorney's fees. The agency found
that complainant's representative was not an attorney. Thus, the agency
concluded that complainant was not entitled to attorney's fees. We agree
with the agency that complainant's representative is not an attorney and
is not entitled to attorney's fees. See 29 C.F.R. � 1614.501(e)(1)(iii).
The agency's decision is AFFIRMED and we shall order the agency to provide
the remedies set forth in the Order herein if it has not already provided
such remedies.
ORDER
The agency shall take the following actions within 30 days of the date
this decision becomes final:
The agency should strongly consider not allowing Mr. X to serve in a
supervisory position for the remainder of his employment with the agency.
Conduct training for supervisors and managers at the
Bakersfield/Investigations sub-office on sexual harassment and
management's responsibilities when informed of alleged harassment.
Pay Complainant $14,822.66 in pecuniary compensatory damages and
$130,000.00 in non-pecuniary compensatory damages.
Restore to Complainant 45 days (360 hours) of sick leave.
The agency shall post a copy of the attached NOTICE TO EMPLOYEES POSTED
BY ORDER OF THE EQUAL EMPLOYMENT OPPORTUNITY COMMISSION in accordance
with the provision herein entitled POSTING ORDER.
The agency shall strongly consider disciplining all responsible agency
officials including Mr. X if it has not already done so.
Documentation of compliance with provisions 1 - 6 of this Order must be
sent to the Compliance Officer as referenced below.
POSTING ORDER (G0900)
The agency is ordered to post at its Immigration and Naturalization
Service facility in Bakersfield, California, 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
March 29, 2005
__________________
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 Immigration and
Naturalization Service facility in Bakersfield, California.
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 discriminated against the complainant
on the basis of sex. The facility was ordered to provide the complainant
with compensatory damages and restoration of sick leave. This facility
will 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.
Name and Title
Date Posted: _____________________
Posting Expires: _________________
29 C.F.R. Part 16141There is no claim or finding that complainant was
raped. The claim and finding are that complainant's supervisor used
his position to convince complainant to have sex with him.