Kristine Read, Complainant,v.Michael Chertoff, Secretary, Department of Homeland Security, Agency.

Equal Employment Opportunity CommissionMar 29, 2005
01a50353 (E.E.O.C. Mar. 29, 2005)

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.