0720060032
11-23-2007
Marcie Tyner, Complainant, v. R. James Nicholson, Secretary, Department of Veterans Affairs, Agency.
Marcie Tyner,
Complainant,
v.
R. James Nicholson,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 07200600321
Hearing No. 140A50041x
Agency No. 200103192004101
DECISION
JURISDICTION
Following its November 17, 2005 final order, the agency filed a timely
appeal which the Commission accepts pursuant to 29 C.F.R. � 1614.405(a).
On appeal, the agency requests that the Commission affirm its rejection,
in part, of the relief ordered by an EEOC Administrative Judge (AJ)
following her finding of 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, the agency challenges the AJ's award of
nonpecuniary compensatory damages in the amount of $150,000.00 and future
pecuniary damages in the amount of $780.00. For the following reasons,
the Commission REVERSES the agency's final order.
BACKGROUND
At the time of events giving rise to this complaint, complainant worked as
a Rating Specialist, GS-12 at the agency's Regional Office in Columbia,
South Carolina. Beginning in July 2003,a series of incidents occurred
in complainant's workplace that she regarded socially or sexually
inappropriate. These incidents continued into 2004 and on January 12,
2004, complainant contacted an EEO counselor. The incidents continued
and on February 23, 2004, complainant filed a formal EEO complaint
alleging that she was discriminated against on the basis of sex (female)
when she was subjected to harassment by a co-worker and a supervisor.
At the conclusion of the investigation, complainant was provided with a
copy of the report of investigation and notice of her right to request
a hearing before an EEOC Administrative Judge (AJ). Complainant timely
requested a hearing and the AJ held a three-day hearing beginning on
May 18, 2005. The AJ issued a decision on September 30, 2005, finding
that complainant had been subjected to sexual harassment and awarding
damages and other relief.
FINAL AGENCY ACTION
On November 17, 2005, the agency issued a final order accepting the
AJ's finding of discrimination but rejecting as excessive the AJ's
nonpecuniary compensatory damages in the amount of $150,000.00 and
future pecuniary damages in the amount of $780.00.2 Simultaneously,
the agency filed an appeal to the Commission.
STANDARD OF REVIEW
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.
An AJ's credibility determination based on the demeanor of a witness or
on the tone of voice of a witness will be accepted unless documents or
other objective evidence so contradicts the testimony or the testimony so
lacks in credibility that a reasonable fact finder would not credit it.
See EEOC Management Directive 110, Chapter 9, � VI.B. (November 9, 1999).
ANALYSIS AND FINDINGS
Sexual Harassment
The agency does not challenge the AJ's finding that the agency
discriminated against complainant by subjecting her to sexual harassment.
We will briefly summarize the evidence supporting that finding to place
the AJ's damage award in context.
Complainant testified that a co-worker (CW1) repeatedly subjected her to
unwanted romantic advances in the form of unsolicited gifts and comments
that suggested to others that there existed a romantic relationship
between complainant and CW1. According to complainant, she repeatedly
informed CW1 that his advances were unwanted and chastised him for giving
their co-workers a false impression of their relationship. Complainant
also reported CW1's objectionable activities to their mutual supervisor
(S1) to no avail. According to complainant, S1 not only took no effective
action to curtail CW1's behavior but himself engaged in objectionable
activity which contributed to the sexually harassing atmosphere.
His behavior took the form of crude sexual language. The supervisor,
S1, frequently used offensive terms to refer to intimate body parts,
including female breasts and male genitalia, in discussions unrelated
to any legitimate agency function.
Complainant's testimony was corroborated by several co-workers. The AJ
found the evidence sufficient to support complainant's claim of sexual
harassment.
Legal Standards for an Award of 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 (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 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 particulars of what relief may be awarded, and what proof is necessary
to obtain that 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 (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 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. The amount of non-pecuniary damages
should also reflect the nature and severity of the harm to complainant,
and the duration or expected duration of the harm. Id. at 14.
In Carle v. Department of the Navy, EEOC Appeal No. 01922369 (January 5,
1993) 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. 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. 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
prerequisite to establishing entitlement to non-pecuniary damages. Sinnott
v. Department of Defense, EEOC Appeal No. 01952872 (September 19, 1996).
The Commission applies the principle that 'a tortfeasor takes its victims
as it finds them.' Wallis v. United States Postal Service, EEOC Appeal
No. 01950510 (November 13, 1995) (quoting Williamson v. Handy Button
Machine Co., 817 F.2d 1290, 1295 (7th Cir. 1987)).
Nonpecuniary Compensatory Damages
The AJ based her award of $150,000.00 in nonpecuniary compensatory
damages on the testimony of complainant, a psychologist (P1) who
treated complainant, and complainant's father. Complainant testified to
symptoms including difficulty sleeping, nightmares and panic attacks. P1
testified that, as a young person, complainant had been a witness to
(and possibly a victim of) sexual abuse of her sister by her grandfather.
This experience made her especially sensitive to inappropriate sexual
behavior. P1 diagnosed complainant as having major depressive disorder,
post-traumatic stress disorder and agoraphobia (fear of leaving home)
with panic attacks as a result of her experiences at work. According
to P1's testimony, as summarized by the AJ, complainant "experienced
problems sleeping, problems with her appetite, feeling sad and tearful,
problems with memory comprehension and thinking clearly, and problems
with self-esteem and self-confidence."
Complainant's father testified that during the time when complainant
was experiencing difficulties at work, she became more depressed and
withdrawn, spending most of the day in bed during her visits to her
parent's home.
The agency argues that the testimony of complainant and P1 are
inconsistent and that complainant has failed to carry her burden of
proof with respect to the extent of the damages due her. It is not
our function in an appeal from an AJ's decision following a hearing to
weigh the evidence and determine whether a preponderance of evidence
favors complainant. Rather we must decide whether there is substantial
evidence to support the AJ's findings. Because there is no precise
formula by which to calculate nonpecuniary damages, AJ's are necessarily
afforded broad discretion in determining such damage awards. To be
sustained on appeal an award of non-pecuniary damages 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)).
We conclude that the AJ's award of $150,000.00 in nonpecuniary
compensatory damages was not excessive. There is no basis for finding
that the amount is "monstrous" or the result of passion or prejudice.
In addition, the Commission has awarded comparable amounts in other
cases where the agency's discriminatory conduct has caused serious
depression and other adverse psychological and physical conditions.
See e.g. Furch v. Department of Agriculture, EEOC Appeal No. 07A40094
(August 5, 2005) ($150,000.00 in non-pecuniary damages where complainant
suffered from depression, loss of enjoyment of life, interference with
family relationships, permanent diminishment in quality of her life,
and physical symptoms.); Booker v. Department of Defense, EEOC Appeal
No. 07A00023 (August 10, 2000) ($150,000.00 in nonpecuniary compensatory
damages where complainant suffered depression, which resulted in three
attempts at suicide and his voluntary hospitalization for observation);
Santiago v. Department of the Army, EEOC Appeal No. 01955684 (October 14,
1998) ($125,000.00 in non-pecuniary damages where complainant suffered
depression and other emotional and mental disorders, and severe chest and
stomach pains, digestive problems, and incidents of shortness of breath
due to three years of verbal abuse and sex and age-based discrimination
by her supervisor).
Future Pecuniary Compensatory Damages
The agency also challenges the AJ's award of $780.00 in future pecuniary
compensatory damages to compensate complainant for one additional year
of treatment by a psychologist. The agency contends that the award is
speculative and not based on record evidence. Complainant's treating
psychologist, P1, when asked at the hearing how long complainant will
require continuing psychological treatment, testified as follows: "I
don't know. I suppose it depends partly on what happens with her job
situation. I would say probably she will need pretty intensive therapy
for another year, but it is hard to know." The agency argues that this
testimony is too "uncertain and speculative" to "establish a finite
period for future treatment." We disagree.
The AJ apparently took P1's testimony to mean that P1 could not predict
how long complainant would require continuing treatment but could state
definitively that at least one additional year of treatment would be
required. This is a reasonable interpretation of P1's testimony and is
consist with P1's earlier testimony about the severity of complainant's
psychological condition. The Commission has permitted awards of future
pecuniary damages on the strength of similar evidence in other cases.
See e.g. Otero v. Department of the Army, EEOC Appeal No. 01A44064
(October 28, 2005).
CONCLUSION
For the foregoing reasons, the agency's final order is REVERSED and
this matter is REMANDED for the agency to provide the relief set forth
in the Order below.
ORDER (C0900)
The agency is ordered to take the following remedial action:
I. provide EEO training regarding sexual harassment to the employees whose
conduct formed the basis for the finding of discrimination in this case;
2. post a notice as set forth in the paragraph entitled "Posting
Order" below.
3. pay to complainant $150,000.00 in nonpecuniary compensatory
damages.
4. pay to complainant $7108.18 in pecuniary compensatory damages
5. pay to complainant $7387.50 in attorney's fees and costs.
6. restore to complainant 273 hours of sick leave,
including 264 hours of advanced sick leave, 31.75
hours of annual leave, and three hours of compensatory time.
In addition, the agency shall pay complainant for the 172 hours
of leave without pay that she took as a
result of the discrimination.
7 consider taking disciplinary action against the
responsible management officials for
discriminating 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. 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 verifying
that the corrective action has been implemented.
POSTING ORDER (G0900)
The agency is ordered to post at its Regional Office in Columbia,
South Carolina 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 tends 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 (R0900)
This is a decision requiring the agency to continue its administrative
processing of your complaint. However, if you wish to file a civil
action, you have the right to file such action in an appropriate United
States District Court within ninety (90) calendar days from the date
that you receive this decision. In the alternative, you may file a
civil action after one hundred and eighty (180) calendar days of the date
you filed your complaint with the agency, or filed your appeal with the
Commission. 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. 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
November 23, 2007
__________________
Date
1 Due to a new data system, this case has been redesignated with the
above referenced appeal number.
2 The other relief ordered by the AJ to which the agency did not object
included an award of $6,328.18 in past pecuniary compensatory damages
and an award of $7387.50 in attorney's fees and costs.
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0720060032
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
9
0720060032