01a22077
02-09-2003
Valerie D. Green, Complainant, v. Jo Anne B. Barnhart, Commissioner, Social Security Administration, Agency.
Valerie D. Green v. Social Security Administration
01A22077
4/29/03
.
Valerie D. Green,
Complainant,
v.
Jo Anne B. Barnhart,
Commissioner,
Social Security Administration,
Agency.
Appeal No. 01A22077
Agency No. 96-0031-SSA
DECISION
Complainant timely initiated an appeal from a final agency decision (FAD)
concerning her claim for compensatory damages for a complaint of unlawful
employment discrimination in violation of Title VII of the Civil Rights
Act of 1964 (Title VII), as amended, 42 U.S.C. � 2000e et seq. The appeal
is accepted pursuant to 29 C.F.R. � 1614.405. For the following reasons,
the Commission MODIFIES the agency's final decision.
The record reveals that during the relevant time, complainant was
employed as a Supervisory Social Insurance Systems Specialist at
the agency's Baltimore, Maryland facility. Complainant sought EEO
counseling and subsequently filed a formal complaint on November 1,
1995, alleging that she was discriminated against on the basis of sex
(female) when she was sexually harassed by her supervisor from March 1,
1991 to the fall of 1992.
At the conclusion of the investigation, complainant was informed of
her right to request a hearing before an EEOC Administrative Judge or
alternatively, to receive a final decision by the agency. Complainant
requested that the agency issue a final decision. The agency determined
that complainant was not discriminated against, and complainant appealed.
Valerie Green v. Social Security Administration, EEOC Appeal No. 01995478
(July 31, 2001). In our decision, we found that complainant had been
subjected to sexual harassment, and ordered the agency to conduct a
supplemental investigation into complainant's entitlement to compensatory
damages. Specifically, we found that complainant's branch chief
essentially followed complainant around the office wherever she would
go, asked inappropriate personal questions, and asked complainant out on
social occasions. The prior decision also determined that complainant
established that the conduct rose to the level of severe or pervasive
conduct because complainant established that she was required to alter
her schedule so as to avoid the Branch Chief and that it made her feel
watched all day. Id.
Following a supplemental investigation, the agency issued a FAD finding
that complainant was entitled to $2,500 in non-pecuniary compensatory
damages for the emotional distress she suffered as a result of the
harassment. Although complainant requested that the agency pay her
pecuniary damages for loss of retirement benefits following her retirement
from the agency, mental health counseling, and bills related to her
mastectomy and dental problems, the agency found complainant was not
entitled to these pecuniary damages. Specifically, the agency determined
that the retirement benefits constituted a request for back pay, not
compensatory damages. Furthermore, the agency found complainant failed
to establish a causal connection between her mental health counseling,
dental bills and partial mastectomy, and the sexual harassment.
As for her claim of non-pecuniary damages, the agency found complainant
provided limited support for her claim of a higher award. The agency
noted that complainant produced letters from her husband, daughter,
niece, and cousin describing the effects of the sexual harassment on
complainant's personal and home life. However, the only medical evidence
that complainant submitted related to emotional distress came from her
social worker who only started seeing complainant two months prior to the
time she submitted evidence on behalf of complainant. In her statement,
the social worker explained that complainant suffered from Post Traumatic
Stress Disorder (PTSD) as a result of threats to her integrity between
the fall of 1991 and the fall of 1992. The agency found that the value
of this evidence was diminished by its remoteness in time from the sexual
harassment. Further, the agency noted that the emotional distress could
be related to complainant's diagnosis of cancer in 1996. After a review
of the evidence, the agency determined that complainant's request for a
more substantial award was not supported, especially in light of the fact
that the Branch Chief retired in 1992 and contact between the two ceased.
On appeal, complainant contends that the agency's award of $2,500 is
not adequate in light of the emotional distress she suffered because of
the sexual harassment. Complainant reiterates that she has suffered,
among other things, anxiety, mental stress, insomnia, nightmares,
avoidance of people and things, stomach upset and mild depression.
She states that the stress of the incidents caused her lower immunity,
and thus, she became more susceptible to cancer, which she had in
1996. Complainant also disputes the agency's finding that there was
insufficient causal connection between her mental health counseling and
the sexual harassment, and submits a letter dated April 27, 2002 from
her psychologist that states complainant suffers from PTSD as a result
of the hostile work environment. Complainant maintains that she also
suffered from back problems, as well as dental problems due to teeth
grinding, which she maintains occurred as a result of the PTSD.
In addition to the letter submitted from her psychologist on appeal,
complainant also submits new receipts from her social worker and
psychologist for sessions that occurred from November 2001 through
April 2002.
In response to complainant's appeal, the agency argues that new evidence,
such as the psychologist's letter and the receipts, constitute new
evidence which should not be accepted for the first time on appeal.
Even if the evidence is accepted, the agency maintains that the $2,500
award should not be increased.
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).
2 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 (July 14,
1992) (Damages Guidance). Briefly stated, the 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. Dept. 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. 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.
In Carle v. Dept. of the Navy, 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.
EEOC Appeal No. 01922369 (January 5, 1993). 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.
Compensatory damages may be awarded for all pecuniary and non-pecuniary
losses post-dating the November 21, 1991, effective date of CRA 1991.
See Landgraf v. USI Film Products, 114 S. Ct. 1483 (1994). To the
extent the conduct complained of in this case occurred before November
21, 1991, the effective date of the CRA, complainant is not entitled to
compensatory damages. Our award takes this factor into account.
Evidence of Causation & Injury
Complainant contends in her original statement and her brief on appeal,
that prior to the events in question, she was a calm, happy, outgoing
person who enjoyed multiple activities both in and outside of work.
After the sexual harassment, however, complainant states that she suffered
from constant anxiety, hopelessness, nightmares, stomach upset, crying,
loss of self esteem, and financial and marital problems. Additionally,
she maintains she lost enjoyment in life, felt fatigued, and withdrew from
family, friends, and the activities she once enjoyed. Complainant also
argues that she began grinding her teeth as a result of the harassment
and developed breast cancer due to lower immunity.
During the supplemental investigation, complainant submitted statements
from family members and co-workers describing the emotional distress
complainant suffered. Complainant's husband reported, among other things,
that they suffered marital problems as a result of the harassment, and
complainant began grinding her teeth. Complainant's nephew stated that
complainant informed him about the harassment she received, and noticed
that she was sad, and preoccupied. Complainant's cousin stated that
complainant informed her about the harassment and noticed that while
discussing the matter, complainant often would start rocking, holding
her head and picking at her fingers as if to comfort herself.
As mentioned above, complainant submitted a letter from her then social
worker who reported that complainant suffered from PTSD as a result
of multiple incidents that occurred from the fall of 1991 through
the fall of 1992. The social worker also stated that as a result of
these incidents, complainant suffers from recurrent nightmares, avoids
activities and people that remind her of the incidents, and has lost
interest in participating in activities she once enjoyed. Complainant's
social worker stated that as a result of complainant's emotional distress,
complainant would need counseling on a weekly bases for an "indefitnite
period of time," and indicated that she charges $95.00 per session.
Finally, complainant also submitted receipts from breast cancer diagnosis
and treatment, dental work related to teeth grinding, and internet
research describing the link between stress and cancer, and stress and
teeth grinding.
After a review of the record, we find that complainant satisfied her
burden of establishing a causal connection between the sexual harassment
and emotional distress. Contrary to the agency's assertions that
complainant's cancer diagnosis was the root of complainant's emotional
distress, neither complainant's social worker nor complainant's family
members mention her cancer diagnosis as causing any of the emotional
distress described. Rather, all statements are made in the context of
the harassment suffered.
However, as for complainant's claim that she developed cancer,
back problems and teeth grinding because of the harassment, we find
insufficient evidence that the harassment caused these physical problems.
Although much of complainant's emotional distress seems to be documented
by family and co-workers soon after the harassment, such evidence is
lacking for these physical problems. As such, our award does not
include damages related to complainant's cancer, back problems, or
teeth grinding.
Past Pecuniary Damages
Pecuniary losses are out-of-pocket expenses 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. Section
1981a(b)(2) indicates that compensatory damages do not include back pay,
interest on back pay, or any other type of equitable relief authorized
by Title VII. Section 1981a(b)(3). Here, complainant requests that
the agency pay her $546,320 in lost retirement benefits. Specifically,
she contends that she retired in 1994, as opposed to 2003, since she
was subjected to the hostile work environment. However, there is no
evidence in the record that complainant alleged that she was subjected to
a forced retirement or constructive discharge in her formal complaint,
nor was this issue raised in the prior appeal. Accordingly, we cannot
award damages on this issue.
However, we do find that complainant has provided sufficient evidence
to support a past pecuniary award for counseling related to the PTSD and
emotional distress she suffered from as a result of the discrimination.
As stated above, complainant provided a letter from her social worker
linking her emotional distress to the time period raised in the initial
complaint. On November 19, 2001, complainant's social worker reported
that she has seen complainant on a weekly basis since October 24, 2001,
at $95 per hour. As such, we find that complainant should be paid
$380.00 in past pecuniary damages based on four sessions, at $95 per hour.
Future Pecuniary Damages
The record reveals complainant, who was not represented by a
representative or attorney, was not afforded an opportunity to provide
future pecuniary damages given the limited information the agency mailed
to her when requesting that she submit objective evidence of compensatory
damages related to the harassment. Nevertheless, complainant's initial
request for compensatory and the letter from complainant's social
worker put the agency on notice that she would require future therapy
appointments, when she stated, �I will continue to see [complainant]
on a weekly basis for an indefinite period of time.�
Despite the agency's contention on appeal that the receipts submitted on
appeal constitute new evidence, we find they represent those additional
therapy visits that complainant's social worker alluded to in her November
19, 2001 letter. After a review of complainant's submissions in support of
her future pecuniary damages request, we find that an award of $195.00 in
future pecuniary damages is appropriate. This represents the sum of those
receipts submitted on appeal for future pecuniary damages. However, given
that complainant's new psychologist, who submitted a letter on appeal,
did not indicate with any specificity how much longer complainant would
require therapy, we are unable to make any further future pecuniary award.
Non-Pecuniary Damages
The agency awarded $2,500.00 in non-pecuniary damages. Taking into
account the evidence of non-pecuniary damages submitted by complainant,
the Commission finds that complainant is entitled to non-pecuniary
damages in the amount of $20,000.00. This amount takes into account
the severity and duration of the harm suffered, and is consistent with
prior Commission precedent. See Colwell v. United States Postal Service,
EEOC Appeal No. 01985789 (June 13, 2001)(Commission awarded $20,000.00 in
non-pecuniary damages for complainant's depression and emotional distress,
which manifested themselves in crying spells, insomnia, headaches,
anxiety attacks, constant mood swings, and low self esteem, and for which
complainant received psychological treatment; loss of credit standing
and loss of professional standing); Bever v. Department of Agriculture,
EEOC Appeal No. 01953949 (October 31, 1996) (Commission awarded $15,000.00
in non-pecuniary damages where the complainant's situational anxiety was
directly linked to a hostile work environment, such that complainant was
required to take medication as a result, and symptoms suffered included
uncontrolled crying, weight loss, and depression).
Costs
In her statement on appeal, complainant submits receipts for postage
related to her initial appeal. Although appellant was not represented by
an attorney, reasonable costs incurred by a prevailing pro se complainant
in the course of litigating her own EEO claim are compensable. Feine
v. United States Postal Service, EEOC Petition No. 04920009 (September 3,
1992). It is the complainant's burden to prove not only that she incurred
such costs, but that such costs were reasonable. Clay v. Department
of the Army, EEOC Petition No. 04950006 (December 14, 1995); Davis
v. Department of the Treasury, EEOC Request No. 05901213 (March 1, 1991);
Canady v. Department of the Army, EEOC Request No. 05890226 (December 27,
1989). Here, complainant submits receipts totaling $14.43, which we find
are reasonable postage costs related to her initial appeal. Accordingly,
the agency shall reimburse complainant $14.43 for these costs.
ORDER (C0900)
The agency is ordered to take the following remedial action:
Within sixty (60) days of the date this decision becomes final,
the agency shall tender to complainant the following: (a) $20,000
for non-pecuniary damages; (b) $380.00 for past pecuniary damages;
(c) $195.00 for future pecuniary damages.
Within sixty (60) days from the date this decision becomes final,
the agency shall pay complainant $14.43 in costs.
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.
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
4/2/9/03
Date