0720060012
03-10-2008
Marty Hern, Complainant, v. Ed Schafer, Secretary, Department of Agriculture, Agency.
Marty Hern,
Complainant,
v.
Ed Schafer,
Secretary,
Department of Agriculture,
Agency.
Appeal No. 07200600121
Hearing No. 310-2005-00018X
Agency No. NRCS-2003-00106
DECISION
The agency filed an appeal to the Commission pursuant to 29 C.F.R. �
1614.110(a), after an EEOC Administrative Judge (AJ) issued an Order,
dated September 19, 2005. Complainant alleged that he was subjected to
harassment (nonsexual) on the bases of race (Native American), national
origin (Cherokee Nation), and reprisal for prior EEO activity when:
1. On May 19, 2003, complainant's life was threatened by a client.
2. Since November 21, 1996, and continuing, the agency allegedly failed
to take the necessary actions to stop the harassment.
After an investigation, complainant requested a hearing before an AJ.
The AJ, after a hearing, issued a decision on September 19, 2005.
The AJ found that complainant was discriminated on the bases of race and
national origin when his life was threatened by a client on May 19, 2003.
The AJ also found that the agency discriminated against complainant
on the bases of race and national origin when it had actual knowledge
of the harassment and failed to take prompt and corrective action to
remedy and prevent the hostile work environment. Specifically, the
AJ found that complainant was subjected to harassment when complainant
and all the witnesses acknowledged that a customer of the agency (Mr. X)
referred to complainant as a "worthless Indian, dumb Indian, and stupid."
Complainant provided detailed allegations against Mr. X. Complainant said
that Mr. X's conduct was unbearable and that he did not believe that he
should have to move from his job because of Mr. X's behavior.
Complainant testified that on November 21, 1996, Mr. X came into his
office and threatened complainant with a lawsuit, threatened him with
removal from his position, and said that he was going to sue him.
Complainant also testified that he and Mr. X scheduled an appointment
on November 27, 1996, but Mr. X did not show up for that appointment.
Complainant further testified that on April 16, 1998, his office was
undergoing a civil rights investigation caused by Mr. X. Complainant said
that the investigation was being held at the Tahlequah Field Office and
that individuals started coming in wanting to know where they were having
job interviews. Complainant said that he knew nothing about this, but
Mr. X was telling people out at Cherokee Nation that the agency was having
job interviews and that if people just went there that they could probably
get a job interview and a job at the agency. Complainant said that this
information was documented by one of the investigators at the agency.
Complainant testified that on April 23, 1998, one of Mr. X's clients
threatened complainant with removal. Complainant testified that on
May 8, 1998, Mr. X told a farm loan manager at the Farm Service Agency
(FSA) that complainant was a "worthless Indian" and that he was not
doing his job. Moreover, complainant testified that on November 25,
1998, Mr. X told regional office officials that complainant was not
doing his job. Complainant testified that on September 14, 1999,
he provided information to the state conservationist about Mr. X's
harassment, threats, and racially disparaging remarks and actions against
him. Complainant testified that on December 13, 1999, Mr. X did not keep
his appointment. Complainant testified that on April 11, 2000, he sent a
facsimile to management about Mr. X's harassing and threatening behavior.
Complainant said that he was on leave on May 19, 2003, and went to a local
Wal-Mart with his young son. Complainant said that he saw a customer
of the agency (Mr. X) and the two began talking about agency matters.
Complainant stated that Mr. X allegedly said that he had murdered a man
before, his lawyer had gotten him off, he could do it again, and then
laughed in an evil manner. Complainant indicated that he reported this
incident to his supervisor two days later. Complainant acknowledged
that he did not convey the threat very well so complainant's supervisor
did not understand that it was indeed a threat.
Complainant testified that Mr. X made a racially derogatory remark when
he called him a "worthless Indian," on another occasion. Complainant
conceded that he believed that his managers and supervisors had done
all they could to alleviate the situation, but it was above them in
headquarters. Complainant basically said that he received harassment
from Mr. X anytime Mr. X was told no. Complainant said that Mr. X would
then throw a fit and call him all kinds of names.
Complainant stated that, in May 2005, Mr. X said that complainant was
stupid to have taken the Cherokee County District Conservationist job.
Complainant asserted that this was in a public forum with other persons
present. On May 4, 2005, complainant said that Mr. X called him a
"damned Indian."
A State Conservationist in Oklahoma testified that Mr. X conducted his
business in a harassing and threatening manner. The State Conservationist
testified that based on the information provided from complainant,
complainant's supervisor and the incidents that he has witnessed,
complainant has been subjected to a hostile work environment.
An Assistant State Conservationist for Outreach and Civil Rights testified
that Mr. X harassed and threatened complainant in the course of his duties
as a District Conservationist in Cherokee County. As complainant's
supervisor, the Assistant State Conservationist for Outreach and Civil
Rights said that on the one occasion that complainant reported that Mr. X
was harassing complainant, he asked complainant to put the incident in
writing and give it to him. The Assistant State Conservationist for
Outreach and Civil Rights reported that after he received the information
in writing, he had a meeting with Mr. X and provided a written response
to Mr. X about conduct in their office that was unprofessional and that
would not be tolerated.
An Assistant State Conservationist for Field Operations testified
that Mr. X conducts his business in a harassing and threatening manner.
The Assistant State Conservationist for Field Operations testified that on
February 6, 2003, he had a conversation with Mr. X. The Assistant State
Conservationist for Field Operations testified that Mr. X threatened that
he could get complainant fired similar to the way he had removed other
employees. The Assistant State Conservationist for Field Operations
testified that, according to his personal experience, complainant has
been subjected to harassment, threats and intimidation by Mr. X since
February 6, 2003.
The AJ found that the three management witnesses who testified at the
hearing conceded that the incidents did occur and in fact testified
that complainant was subjected to a hostile work environment. The AJ
determined that the agency has not established that the conduct was not
unwelcome, since complainant complained to all of his supervisors about
the actions. Finally, the AJ found that while the agency attempted on
one occasion to address complainant's concerns, those actions were not
appropriate to the situation and did not rectify the situation.
The AJ found that complainant was not discriminated on the basis of
reprisal when his life was threatened by a client on May 19, 2003.
Moreover, the AJ found that complainant was not discriminated on the
basis of reprisal when, since November 21, 1996, and continuing, the
agency failed to take the necessary actions to stop the harassment.
The AJ ordered the following remedies:
1. The agency shall restore complainant 46.5 hours of leave, including
27 hours of sick leave, 14 hours of credit leave and 5.5 hours of annual
leave.
2. The agency shall pay complainant $6,903.87 for pecuniary, compensatory
damages.
3. The agency shall pay complainant $216.00 as reimbursement for mileage.
4. The agency shall pay complainant $50.97 as reimbursement for costs
of mail fees.
5. The agency shall pay complainant $50,000 for non-pecuniary,
compensatory damages.
6. The agency shall take all necessary steps to ensure that the harassment
which occurred in this case is not repeated.
The AJ noted that complainant was not represented by an attorney, so
there was no award of attorney's fees.2 The AJ also ordered the agency
to post a notice at the agency explaining that discrimination had been
found at the agency.
The agency, on November 3, 2005, issued a decision not to implement the
AJ's decision and filed the instant appeal.3
On appeal, the agency requested that the Commission reject the AJ's
finding of discrimination. The agency determined that complainant
did not establish a prima facie case of harassment discrimination.
The agency argued that it took adequate remedial measures in order to
avoid liability. The agency also challenged the AJ's award of pecuniary,
compensatory damages and non-pecuniary, compensatory damages. Complainant
also submitted an appeal which challenged the AJ's award of compensatory
damages. Complainant is not challenging the finding of no reprisal,
so we will not address that issue further in the decision herein.
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.
After a careful review, we find that substantial evidence in the record
supports the AJ's finding of discrimination. Accordingly, we discern
no basis to disturb the AJ's finding of discrimination. See Gibson
v. United States Postal Service, EEOC Appeal No. 01985002 (August 7,
2001). There is substantial evidence to support the AJ's finding that
incidents alleged by complainant to be "harassing" and to have created
a hostile work environment were sufficiently severe or pervasive so as
to have unreasonably interfered with complainant's ability to perform
his job.
The agency did not challenge the award of leave, mileage, or mail
fees, and the Commission finds no basis to disturb the AJ's pecuniary
compensatory awards regarding restoration of leave, reimbursement of
mileage, and reimbursement of mail fees to complainant.
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 (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. Id.
The particulars of what relief may be awarded, and what proof is necessary
to obtain that relief, are set forth in detail in the Commission's
Enforcement Guidance: Compensatory and Punitive Damages Available Under
Section 102 of the Civil Rights Act of 1991, EEOC Notice No. 915.002
(July 14, 1992) (Enforcement 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.
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.
A. Pecuniary, Compensatory Damages
Complainant may be awarded damages for pecuniary losses which are directly
or proximately caused by the agency's discriminatory conduct. EEOC
Guidance: Compensatory and Punitive Damages Available Under Section 102
of the Civil Rights Act of 1991, EEOC Notice N-915.002 (July 14, 1992),
at 8. Pecuniary losses are out of pocket expenses that are incurred as a
result of the employer's unlawful action, including job-hunting expenses,
moving expenses, medical expenses, psychiatric expenses, physical therapy
expenses and other quantifiable out of pocket expenses. Id. Past pecuniary
losses are the losses that are incurred prior to the resolution of a
complaint via a finding of discrimination, an offer of full relief, or
a voluntary settlement, while future pecuniary losses are those likely
to occur after the resolution of the complaint. Id. at 8-9. Benefits
received by a complainant from a source collateral to the agency may not
be used to reduce the agency's liability for damages. See Finlay v. United
States Postal Service, EEOC Appeal No. 01942985 (April. 29, 1997).
The amount to be awarded for pecuniary losses can be determined
by receipts, records, bills, canceled checks, confirmation by
other individuals, or other proof of actual losses and expenses. To
recover damages, the complaining party must prove that the employer's
discriminatory act or conduct was the cause of his loss. EEOC Guidance:
Compensatory and Punitive Damages Available Under Section 102 of the
Civil Rights Act of 1991, EEOC Notice No. N 915.002 (July 14, 1992). The
critical question is whether the complaining party incurred the pecuniary
losses as a result of the employer's discriminatory action or conduct.
Id.
Complainant contends that as a result of the discrimination, he has
incurred out-of-pocket medical expenses for medical treatment. Complainant
presented medical and prescription bills for both his Graves Disease and
depression and anxiety. The evidence is not clear that complainant's
Graves Disease was caused and/or exacerbated by the agency's actions in
this case. The records showed, for example, that complainant suffered
from hyperthyroidism and was a heavy smoker prior to the alleged
harassment in this case. There is no evidence in the record that
establishes that complainant incurred out-of-pocket medical expenses
above and beyond what he was already incurring because of his preexisting
Graves Disease. Therefore, complainant is not entitled to payment for
his medical expenses.
Complainant also claims that he is entitled to closing costs and
mileage due to a move. Complainant states that he sold his home in
Tallequah, Oklahoma and bought a new home for total closing costs of
$6,903.87 due to the hostile work environment. The Commission finds
that the AJ's pecuniary, compensatory award of $6,903.87 for closing
costs was inappropriate. The Commission finds that such an award is
too speculative. Complainant has not persuasively shown how the move
was caused by the harassment.
B. Non-Pecuniary, Compensatory Damages
There is no precise formula for determining the amount of damages
for nonpecuniary losses, except that the award should reflect
the nature and severity of the harm and the duration or expected
duration of the harm. Loving v. Department of the Treasury, EEOC Appeal
No. 01955789 (August 29, 1997); Rountree v. Department of Agriculture,
EEOC Appeal No. 01941906 (July 7, 1995). We note that for a proper
award of nonpecuniary 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).
The record reveals that complainant suffered emotional distress,
depression, and anxiety as a result of the agency's discriminatory
conduct. The record also shows that complainant presented evidence
of emotional harm during the hearing and in response to the Order on
Damages. Complainant testified that he sought medical attention for these
conditions and submitted medical evidence in support of his argument that
he suffered emotional harm. The testimony of complainant's coworkers as
well as his wife and mother confirm his emotional condition as a result of
the hostile work environment. The Commission finds that the AJ's award
of $50,000.00 in non-pecuniary, compensatory damages was appropriate. We
note that 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. The Commission finds
that the weight of our prior decisions supports an award of $50,000.00
in the instant case. See Holliday v. Department of Agriculture,
EEOC Appeal No. 01A03047 (June 12, 2002) (Commission awarded $50,000
in non-pecuniary, compensatory damages where due to a retaliatory work
environment complainant suffered emotional distress daily for at least
14 months, experiencing loss of enjoyment of life, loss of professional
standing and forced early retirement); Bowden v. Department of Veterans
Affairs, EEOC Appeal No. 01A00360 (June 22, 2000) (Commission awarded
$45,000.00 in non-pecuniary, compensatory damages where the agency
subjected complainant to harassment which resulted in exacerbation of
depression, injury to professional standing, character, reputation, and
credit rating, humiliation, physical manifestations, loss of self-esteem,
and marital and family problems).
The agency's decision finding no discrimination is REVERSED and we REMAND
the matter to the agency to comply with the Order issued by the AJ as
modified herein.
ORDER
The agency is ordered to take the following remedial actions:
1. Within 30 days of the date this decision becomes final, the
agency shall restore complainant 46.5 hours of leave, including 27 hours
of sick leave, 14 hours of credit leave and 5.5 hours of annual leave.
2. Within 30 days of the date this decision becomes final, the
agency shall pay complainant $216.00 as reimbursement for mileage.
3. Within 30 days of the date this decision becomes final, the agency
shall pay complainant $50.97 as reimbursement for costs of mail fees.
4. Within 30 days of the date this decision becomes final, the agency
shall pay complainant $50,000 for non-pecuniary, compensatory damages.
5. The agency shall take all necessary steps to ensure that the
harassment which occurred in this case is not repeated.
6. Within 180 days of the date this decision becomes final, the agency
shall conduct EEO and harassment training for its managers and supervisors
at the Natural Resources Conservation Services, Tahlequah Field Office,
in Tahlequah, Oklahoma, to ensure that they become aware and continue
to be aware of their obligations, responsibilities and rights under
current federal EEO laws, including the right to work in an environment
free from unlawful discrimination and the agency's responsibility to
ensure actions are taken to remedy and prevent any harassment and its
continuation in the workplace.
7. Within 90 days of the date this decision becomes final, the
agency shall consider taking appropriate disciplinary action against the
responsible management officials. The agency shall report its decision
on discipline to the Compliance Officer referenced herein. 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.
A report showing compliance with this Order shall be sent to the
Compliance Officer referenced herein.
POSTING ORDER (G0900)
The agency is ordered to post at the Natural Resources Conservation
Services, Tahlequah Field Office, in Tahlequah, Oklahoma 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 30 calendar days of the date this decision becomes final, and
shall remain posted for 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 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 (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
March 10, 2008
__________________
Date
1 Due to a new data system, this case has been redesignated with the
above-referenced appeal number.
2 There is no indication that complainant was represented by an attorney
in the instant appeal.
3 Complainant's complaint also included four additional incidents of
harassment on January 18, 2002, June 1, 2002, June 25, 2002, and July
12, 2002. However, these incidents were dismissed by an AJ on March 31,
2005, for untimely EEO Counselor contact. Complainant has not filed
an appeal with regard to the four additional incidents. As such, those
four additional incidents will not be addressed in this decision.
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0720060012
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
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0720060012