07A20111
09-30-2003
Moise J. Walker, Complainant, v. Hansford T. Johnson, Acting Secretary, Department of the Navy, Agency.
Moise J. Walker v. Department of the Navy
07A20111
September 30, 2003
.
Moise J. Walker,
Complainant,
v.
Hansford T. Johnson,
Acting Secretary,
Department of the Navy,
Agency.
Appeal No. 07A20111
Agency No. 00-00205-003
Hearing No. 270-A1-9093X
DECISION
Following its August 5, 2002 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 basis of his sex. The agency also requests
that the Commission affirm its rejection of the AJ's order to provide
$23,341.00 in pecuniary compensatory damages, $7,500.00 in non-pecuniary
compensatory damages and $139,510.00 for front pay. For the following
reasons, the Commission reverses the agency's final order.
Complainant, a Police Dispatcher employed at the agency's Naval
Support Activity in New Orleans, Louisiana, filed a formal EEO
complaint with the agency on June 6, 2000, alleging that the agency
had discriminated against him on the basis of sex (male) when he was
harassed between October 1999 and April of 2000. At the conclusion of
the investigation, complainant was provided a copy of the investigative
report and requested a hearing before an AJ. Following a hearing, the
AJ found that complainant established a prima facie case of harassment.
The AJ found that complainant had approached the Director of Information
Technology (DIT) with photographs that had been placed in his workstation.
The complainant told the DIT that two coworkers, Petty Officers in the
Security Department, accessed the internet to view sexually explicit
materials in an open area. The DIT seized the computer used by the Petty
Officers and determined that there were images on the hard drive of a
sexually explicit nature. The record showed that the DIT then placed a
block on the computers in the Security Office to prevent further access.
The record reveals that the block was overridden and the Petty Officers
continued to access the sexually explicit web-sites.
The AJ noted that complainant's supervisor testified that he observed the
two Petty Officers viewing images of scantily clad women and told them
to desist. The AJ found complainant's testimony credible that the Petty
Officers viewed the sites within the presence of complainant on an almost
daily basis for months. The AJ found that there was sufficient evidence
in the record to establish that complainant continued to be exposed to
sexually explicit images after complaining about them. The AJ found
that the Petty Officers exposed a sexually explicit image of a woman
having intercourse with a horse to complainant and made sexual comments
to him regarding his wife in association with the horses he was raising.
The record reveals that the agency command eventually removed access
to the internet. The AJ found that the internet access was eventually
restored with safeguards that monitor the usage and effectively prevent
employees from accessing prohibited sites after complainant no longer
worked at the agency.
The AJ found that the use of the internet to view web-sites of an explicit
nature in the presence of complainant was both sufficiently severe and
pervasive to render the work environment hostile and that complainant was
made a target because of his sex. The AJ found that there was credible
testimony and documentary evidence to support a finding that the agency
acted with insufficient dispatch in putting a stop to a situation that
it should have known was inappropriate. The AJ entered judgment in
complainant's favor.
The AJ awarded complainant $23,341.00 in pecuniary damages for past and
future medical expenses. In that regard, the AJ noted that the nexus
between complainant's physician's services and his injuries warranted
compensation as well as his travel to and from the physician's office.
The AJ awarded complainant $7,500.00 in non-pecuniary compensatory
damages finding that exposure to bestial images, in combination with
disturbing comments made against his wife, caused him significant mental
anguish and led to a deterioration of his marriage. The AJ found that
he was so disturbed that he became unable to work and left the agency
on disability retirement.
The AJ found that because complainant was unable to return to the
hostile work environment, he was entitled to the amount of pay he
would have received had he not been injured by the agency's actions.
Woodhouse v. Magnolia Hosp., 92 F.3d 248, 257-58 (5th Cir. 1996).
The AJ awarded him $139,510.00 in front pay, offset by the amount he
would receive for disability retirement.
The agency's final order rejected the AJ's decision. On appeal, the
agency contends that the conduct complained of by complainant did not
clear the high threshold of actionable harm needed to show that the
workplace was permeated with discriminatory intimidation, ridicule
and insult. Specifically, the agency contends that complainant did
not establish that the alleged harassment was based on his sex or that
it was sufficiently abusive to affect a term, condition or privilege
of employment. Further, the agency contends that complainant did
not establish, as a matter of law or substantial evidence, a case of
same-sex harassment because he did not show: that the harassers made
a credible homosexual solicitation; that the harassers displayed a
general hostility toward members of the same gender in the workplace;
that the harassers' conduct was motivated by a belief that the victim
did not conform to the stereotypes of his or her gender; or direct
comparative evidence about the harassers' treatment of men and women.
The agency contends that complainant's testimony does not support the
front pay award. The agency argues that front pay is not appropriate
where the complainant's inability to work is the result of illness or
impairment unrelated to the discriminatory conduct. Complainant makes
no new contentions on appeal.
ANALYSIS AND FINDINGS
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] factual
determinations are not supported by substantial evidence." EEO MD-110,
at 9-17. In this case, this means that agency has the burden of pointing
out to us where and why the AJ's findings are not supported by substantial
evidence. 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 so that it can be determined whether the
[AJ's] factual determinations are supported by substantial evidence").
In our view, the agency has not done so.
Complainant is raising claims of sex-based harassment. Title VII
provides that "it shall be an unlawful employment practice for an
employer ... to discriminate against an individual with respect to his
compensation, terms, conditions, or privileges of employment, because
of such individual's ... sex ..." 42 U.S.C. 2000e-2(a)(1). If a male
employee is subjected to unwelcome sexual conduct or comments by another
male employee, such "same sex" conduct or comments can, in certain
circumstances, become harassment "because of sex" and hence violate
Title VII. See, e.g., Karlovich v. Department of Transportation, EEOC
Appeal No. 01974930 (Nov. 1, 1999) (citing Oncale v. Sundowner Offshore
Services, Inc., 523 U.S. 75 (1998)). However, in this "same sex" context
(as well as in "opposite sex" situations):
the anti-discrimination statutes are not a "general civility code." Thus,
federal law does not prohibit simple teasing, offhand comments,
or isolated incidents that are not "extremely serious." Rather, the
conduct must be "so objectively offensive as to alter the 'conditions'
of the victim's employment." The conditions of employment are altered
only if the harassment culminated in a tangible employment action or
was sufficiently severe or pervasive to create a hostile work environment.
EEOC Notice No. 915.002, Enforcement Guidance: Vicarious Employer
Liability for Unlawful Harassment by Supervisors (June 18, 1999) (web
version) ("Vicarious Liability Enforcement Guidance"), at 4 [internal
notes and citations omitted].
Complainant has asserted that agency employees created a "hostile
work environment." Here, complainant recounts events one way, and his
purported harassers recount them a distinctly different way. Complainant
claims the Petty Officers subjected him to inappropriate sexual images
and photographs. The Petty Officers denied that any sexual images or
photographs were displayed or shown to the complainant. In cases such as
these, where the credibility of the relative parties is critical, we must
rely heavily upon the factual findings of the AJ. See EEO MD-110, at 9-16
(explaining that any "credibility determination of an [a]dministrative
[j]udge based on the demeanor or tone of voice of a witness will be
accepted unless documents or other objective evidence so contradicts the
testimony of the witness or the testimony of the witness otherwise so
lacks in credibility that a reasonable fact finder would not credit it").
Here, the AJ made the factual determination that the complainant's
version of events was credible. Further, the DIT and complainant's direct
supervisor acknowledged that the two Petty Officers had accessed sexually
explicit sites in view of those in the Security Office. After our own
independent review of the record, we can conclude that a reasonable fact
finder would have reached the same conclusion. Therefore, we are bound
to uphold the AJ's factual findings as to what really transpired in this
case (i.e., that the Petty Officers did behave towards complainant the
way complainant claims they did). Consequently, and after considering
the law governing this case, we are also bound to uphold the AJ's legal
determination that illegal sex-based harassment, in the form of a hostile
work environment, was committed here.
RELIEF
Pecuniary Damages
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. 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).
Past pecuniary losses are losses incurred prior to the resolution
of a complaint through a finding of discrimination, the issuance of
a full-relief offer, or a voluntary settlement. Id. at 8-9. Future
pecuniary losses are losses that are likely to occur after resolution
of a complaint. Id. at 9. For claims seeking pecuniary damages, such
objective evidence should include documentation of out-of-pocket expenses
for all actual costs and an explanation of the expense, e.g., medical and
psychological billings, other costs associated with the injury caused by
the agency's actions, and an explanation for the expenditure. Id. at 9.
The agency did not contest the AJ's award of pecuniary damages on appeal.
After a careful review of the record, we find that the AJ's award of
complainant's past and future medical expenses was proper. Accordingly,
we award complainant $23,341.00 for past and future medical expenses.
Non-Pecuniary Damages
Complainant must present objective evidence that the agency's
discriminatory actions caused him to suffer the harm of which he
complained. See Smith v. Department of Defense, EEOC Appeal No. 01943844
(May 8, 1996). In Carle v. Dept. of the Navy, EEOC Appeal No. 01922369
(January 5, 1993), the Commission explained, that "objective evidence" of
any pecuniary and 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. The complainant could
also submit documentation of medical or psychiatric treatment related
to the effects of the discrimination. Id.
Complainant testified at the hearing that as a result of the harassment,
he suffered humiliation, marital tension and became unable to work.
The record reveals the AJ found complainant's testimony regarding his
emotional distress to be credible. The agency did not contest the AJ's
award of non-pecuniary damages on appeal. After a careful review of
the record, as well as damage awards reached in comparable cases, the
Commission finds that the AJ properly determined that the complainant is
entitled to an award of non-pecuniary damages in the amount of $7,500.00
See, e.g., Jones v. Department of Defense, EEOC Appeal No. 01973551 (April
14, 2000) ($9,000.00 in non-pecuniary damages based on complainant's
statements of the interference with family and marital relations,
digestive problems, headaches, anxiety, sleeplessness, and exhaustion
resulting from the agency's discrimination); Butler v. Department of
Agriculture, EEOC Appeal No. 01971729 (April 15, 1999) ($7,500.00 in
non-pecuniary damages based on complainant's testimony regarding his
emotional distress); and Benson v. Department of Agriculture, EEOC
Appeal No. 01952854 (June 27, 1996) ($5,000.00 in non-pecuniary damages
where complainant was denied promotional opportunities and consequently
experienced stress, skin rashes, withdrawal, and isolation).
Front Pay
Front pay is a form of equitable relief that compensates an individual
when reinstatement is not possible in certain limited circumstances.
In general, reinstatement is preferred to an award of front pay.
Romeo v. Dept. of the Air Force, EEOC Appeal No. 01921636 (July 13,
1992). Awards of front pay imply that the complainant is able to work
but cannot do so because of circumstances external to the complainant.
Goetze v. Department of the Navy, EEOC Appeal No. 01991530 (August 22,
2001); Brinkley v. United States Postal Service, EEOC Request No. 05980429
(August 12, 1999). The Commission has identified three circumstances
where front pay may be awarded in lieu of reinstatement, i.e., (1) where
no position is available; (2) where a subsequent working relationship
between the parties would be antagonistic; or (3) where the employer
has a record of long-term resistance to anti-discrimination efforts.
York v. Department of the Navy, EEOC Appeal No. 01930435 (February 25,
1994); see, also, Cook v. USPS, EEOC Appeal No. 01950027 (July 17, 1998);
Tyler v. USPS, EEOC Request No. 05870340 (February 1, 1998).
There has been no showing that any of these conditions pertain to
complainant's situation. Here, the AJ erred in citing a hostile
environment as the reason complainant did not return to work. In this
case, not only does the medical evidence indicate that complaint cannot
return to his position at the Naval Support Activity, but it indicates
that he cannot work at any facility. We note that we have previously
determined that, in order for an individual to be eligible for an award
of front pay, they must be available to work. See Finlay v. U.S. Postal
Service, EEOC Appeal No. 01942985 (April 30, 1997); York v. Department
of the Navy, EEOC Appeal No. 01930435 (February 25, 1994). Accordingly,
because complainant is not available to return to work for the agency,
we find that he is not entitled to an award of front pay.
CONCLUSION
Therefore, after a careful review of the record, including arguments and
evidence not specifically discussed in this decision, the Commission and
REVERSES the agency's final order finding no discrimination and directs
the agency to take corrective action in accordance with this decision
and the ORDER below.
ORDER
1. The agency shall provide a minimum of 8 hours of training to all
relevant management officials at the Naval Support Activity, New Orleans,
Louisiana on their responsibilities under the laws enforced by this
Commission, with special emphasis on Title VII.
2. 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).
3. Within sixty (60) days of this decision becoming final, the agency
shall pay complainant $23,341.00 in pecuniary damages to compensate
complainant for past and future medical expenses he incurred or will
incur as a result of the agency's violation of Title VII.
4. Within sixty (60) days of this decision becoming final, the agency
shall pay complainant $7500.00 in non-pecuniary damages to compensate
complainant for the pain and suffering he experienced as a result of
the agency's violation of Title VII.
POSTING ORDER (G0900)
The agency is ordered to post at its Naval Support Activity, New Orleans,
Louisiana, 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
September 30, 2003
__________________
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 (Title VII),
as amended, 42 U.S.C. � 2000e et seq has occurred at the agency's Naval
Support Activity, New Orleans, Louisiana, facility (hereinafter this
facility).
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 liable for sex based harassment. The facility was
ordered to award the victim of this harassment with proven compensatory
damages, attorney fees and costs. 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.
Date Posted: _____________________
Posting Expires: _________________
29 C.F.R. Part 1614