EEOC Appeal No. 0120151396
04-15-2016
Vaughn C. v. Dep't of the Air Force
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Vaughn C.,1
Complainant,
v.
Deborah Lee James,
Secretary,
Department of the Air Force,
Agency.
Appeal No. 0120151396
Hearing No. 420-2012-00106X
Agency No. 811M11013
DECISION
On March 6, 2015, Complainant filed an appeal from the Agency's February 6, 2015, final order concerning his claim for compensatory damages following the Equal Employment Opportunity Commission's (EEOC or Commission) finding of 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 Commission deems the appeal timely and accepts it pursuant to 29 C.F.R. � 1614.405(a).
BACKGROUND
At the time of events giving rise to this matter, Complainant worked as a GS-9 Security Specialist at Eglin Air Force Base in Florida. Complainant worked in the 96th Air Base Wing (ABW) in the Information Protection (IP) Division. Complainant's first-line supervisor was the Director of IP (Sl), and his second-line supervisor was the Vice Commander (S2).
On May 19, 2011, Complainant filed an EEO complaint alleging that he had been subjected to a discriminatory hostile work environment on the bases of race (African-American), color (Black) and national origin (American) when a coworker addressed him using foul, offensive and racially derogatory language, and management failed to take prompt and effective action to address the coworker's conduct.
The complaint was investigated and Complainant requested a hearing before an EEOC Administrative Judge (AJ). On May 1, 2012, the AJ issued a Notice of Intent to Issue a Decision without a Hearing, to which both parties responded.
In his May 16, 2012 response to the AJ's Notice, Complainant, in addition to arguing his harassment claim, sought to amend his complaint to add a claim of constructive discharge. Specifically, he asserted that after being subjected to racial harassment by the coworker for six months without effective intervention by management, he was compelled to resign from his position with the Agency.
On June 13, 2012, the AJ issued a decision by summary judgment in favor of the Agency. In that decision, the AJ dismissed some of Complainant's allegations as untimely raised and further found that the evidence did not show a basis for imputing liability to the Agency. In a footnote, the AJ summarily stated that Complainant's resignation (claim of constructive discharge) had been "voluntary," and had not been brought to the attention of an EEO Counselor within 45 days of its occurrence.
The Agency subsequently issued a final order fully adopting the AJ's findings. Complainant appealed the Agency's final action.
In Appeal No 0120123332 (September 10, 2014), the Commission determined that the matter was appropriate for summary judgment. However, the decision found that the AJ erred in finding in favor of the Agency. The decision concluded that the evidence established that Complainant had been subjected to six months of racially discriminatory harassment which ended when he resigned under protest. The decision noted that the record reflected that the coworker openly called and referred to Complainant as a "nigger," "worthless nigger," and "ignorant nigger." Additionally, witnesses stated that the coworker often targeted Complainant with various other verbal insults and attacks, especially disliked African-Americans, called other African-Americans "niggers," and openly used racial epithets against Hispanics and Asians. The decision also found that other insults used by the coworker such as "fucking pig," "dumbass," "fat," "idiot," and "stupid" could not be divorced from his common use of racial epithets and insults against Complainant and others. The decision held that the Agency was liable for S1's failure to take prompt and effective action to address the coworker's harassment of Complainant.
The decision then determined that Complainant alleged a claim of constructive discharge when he resigned because of management's failure to address the coworker's ongoing harassment. The decision noted that the harassment was severe and pervasive and altered the conditions of Complainant's employment. In addition, the decision held that the harassment made Complainant's working conditions so intolerable, it resulted in Complainant's resignation. Therefore, the decision concluded that Complainant was constructively discharged by the Agency. In order to remedy Complainant, the decision, among other things, ordered that the Agency conduct a supplemental investigation regarding Complainant's entitlement to compensatory damages.
On remand, as its "supplemental investigation" into the issue of compensatory damages, the Agency sent Complainant a letter through his attorney (Attorney) dated November 10, 2014, informing Complainant of his right to submit additional objective evidence in support of his request for compensatory damages. In response, Complainant requested $300,000 in non-pecuniary damages.
In support of this claim, Complainant provided a statement, again detailing the months of harassment he suffered at the hands of the coworker. As a result, Complainant stated that he had difficulty concentrating, a loss of appetite, high blood pressure, severe headaches and increased anxiety. He said his physical and emotional relationship with his wife was affected, and that he was frequently short-tempered with her, taking out his issues at work on her. In April 2011, he began to see a professional counselor to help him deal with the effects of the harassment at work.
Complainant provided notes from the counselor that indicated that Complainant had lost his motivation to work and dreaded coming into work. She also indicated that Complainant's mental status had changed. He worried about work often; felt anxious; developed insomnia; experienced a change in appetite and drinking resulting in a 15-20 pound weight gain; had difficulties with fatigue and focus; and had feelings of hopelessness. He also feared that the coworker would become physically violent towards him and his family, and gave family members pictures of the coworker and told them to make sure they did not allow her into the house and made sure all doors and windows were locked. He even devised a "safety plan" to make sure the coworker did not harm his family. The counselor also noted that Complainant would avoid going to the parking lot until after the coworker left work. Finally, effective May 16, 2011, Complainant resigned from his position to avoid further harassment.
In its final decision issued on February 6, 2015, the Agency issued its decision finding that Complainant was entitled to $20,000, not $ 300,000 as requested. The Agency found that Complainant failed to provide much evidence regarding the adverse effects the harassment had on him.
This appeal followed. On appeal, Complainant, through his Attorney, requested that the Commission reject the Agency's finding that Complainant was entitled to $20,000 and increase the award of damages to $300,000. In support of this claim, the Attorney included exhibits provided to the Agency in support of Complainant's claim for non-pecuniary damages.2
ANALYSIS AND FINDINGS
As this is an appeal from a decision issued without a hearing, pursuant to 29 C.F.R. � 1614.110(b), the agency's decision is subject to de novo review by the Commission. 29 C.F.R. � 1614.405(a). See Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), Chap. 9 - 16. (Aug. 5, 2015) (explaining that the de novo standard of review "requires that the Commission examine the record without regard to the factual and legal determinations of the previous decision maker," and that EEOC "review the documents, statements, and testimony of record, including any timely and relevant submissions of the parties, and . . . issue its decision based on the Commission's own assessment of the record and its interpretation of the law").
In a claim for compensatory damages, a complainant must demonstrate, through appropriate evidence and documentation, the harm suffered as a result of the agency's discriminatory action; the extent, nature, and severity of the harm suffered; and the duration or expected duration of the harm. Rivera v. Dep't of the Navy, EEOC Appeal No. 01934156 (July 22, 1994); Carpenter v. Dep't of Agriculture, EEOC Appeal No. 01945652 (July 17, 1995). Objective evidence in support of a claim for non-pecuniary damages claims includes statements from Complainant and others, including family members, co-workers, and medical professionals. See Compensatory and Punitive Damages Available Under Section 102 of the Civil Rights Act of 1991, EEOC Notice No. N915.002 (July 14, 1992) (Notice); Carle v. Dep't of the Navy, EEOC Appeal No. 01922369 (January 5, 1993). Non-pecuniary damages must be limited to compensation for the actual harm suffered as a result of the Agency's discriminatory actions. See Carter v. Duncan-Higgans, Ltd., 727 F.2d 1225 (D.C. Cir. 1994); Notice at 13. A proper award should take into account the severity of the harm and the length of time that the injured party suffered the harm. See Carpenter, supra. Additionally, 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 Jackson v. U.S. Postal Serv., EEOC Appeal No. 01972555 (April 15, 1999) (citing Cygnar v. City of Chicago, 865 F. 2d 827, 848 (7th Cir. 1989)). Finally, we note that in determining non-pecuniary compensatory damages, the Commission has also taken into consideration the nature of the Agency's discriminatory actions. See Utt v. U.S. Postal Serv., EEOC Appeal No. 0720070001 (Mar. 26, 2009); Brown-Fleming v. Dep't. of Justice, EEOC Appeal No. 0120082667 (Oct. 28, 2010).
After a review of the entire record, we find that the record supports the conclusion that Complainant is entitled to compensatory damages for emotional distress and other non-pecuniary harm resulting from his ongoing exposure to a racially charged work environment as a result of the conduct of his coworker that was ineffectively dealt with by management. Complainant's statement indicated that he suffered both physical and emotional harm as a result, and had to seek professional mental health services. The Agency asserted that Complainant failed to provide adequate evidence of the harm. We disagree. In response to the Agency's request for documentation, Complainant provided a statement detailing the physical and emotional toll taken on him due to the ongoing harassment that resulted in his resignation from his position with the Agency. In that statement, Complainant indicated he experienced increasing anxiety, difficulty concentrating, a loss of appetite, high blood pressure and severe headaches. He also noted that his physical and emotional relationship with his wife was negatively affected. Complainant also submitted documentation from his mental health counselor that indicated that he lost his motivation to work; felt anxious; developed insomnia; experienced a change in appetite and drinking resulting in a 15-20 pound weight gain; had difficulties with fatigue and focus; and had feelings of hopelessness. She also indicated that he became paranoid that the coworker would physically harm his family, even going to the extent of developing a "safety plan" in that eventuality. The record also included statements from coworkers in support of Complainant's claims.
We note that the Agency did not directly challenge Complainant's statements or evidence. Considering the record, the six months of racially charged harassment which included threats of violence, the constructive discharge due to the unlawful harassment, and the evidence of harm provided by Complainant, we find that the Agency's award of $20,000 does not provide sufficient compensation for the harm suffered.
After careful consideration of the evidence of record, we find an award of $125,000 for non-pecuniary compensatory damages is more appropriate. This amount takes into consideration the nature of the discriminatory acts, the severity of the physical and emotional harm suffered, and the length of time Complainant suffered the harm, and is consistent with prior Commission precedent. See Davis v. Dep't of Homeland Sec., EEOC Appeal No. 0720060003 (June 18, 2007) ($125,000 in non-pecuniary compensatory damages awarded where Agency's harassment resulted in complainant suffering from emotional and physical distress, including stress, fear, depression, loss of self-esteem, insomnia, headaches, weight fluctuations, and a stress induced jaw disorder); George v. Dep't of Health and Human Serv., EEOC Appeal No. 07A30079 (July 21, 2004) ($125,000 in non-pecuniary compensatory damages awarded where agency's reprisal and sex-based harassment resulted in the worsening of complainant's physical conditions, depression, and anxiety; complainant's testimony supported by testimony of complainant's husband who said that complainant was a different person, was emotionally destroyed, did not want to leave the house, and lost self-confidence); Moore v. U.S. Postal Serv., EEOC Appeal No. 0720050084 (March 6, 2007) ($120,000 in non-pecuniary compensatory damages awarded where agency's race and reprisal discrimination resulted in complainant suffering from physical and emotional pain; complainant's psychiatrist testified that complainant was in serious cycle of depression and anxiety as result of agency's conduct). Accordingly, we conclude that an award of $125,000 is more appropriate to compensate Complainant for the physical and emotional harm he suffered as a result of the harassment and constructive discharge.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we MODIFY the Agency's final decision and REMAND the matter for further action in accordance with the ORDER below.
ORDER (C0610)
Within forty-five (45) days of the date this decision is final, the Agency is ordered to pay Complainant $ 125,000.00, plus interest, less any amount Complainant has already received in compensatory damages.3
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.
ATTORNEY'S FEES (H0610)
If Complainant has been represented by an attorney (as defined by 29 C.F.R. � 1614.501(e)(1)(iii)), he 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 (K0610)
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 77960, Washington, DC 20013. 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 (M0815)
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), at Chap. 9 � VII.B (Aug. 5, 2015). All requests and arguments must be submitted to the Director, Office of Federal Operations, Equal Employment Opportunity Commission, P.O. Box 77960, Washington, DC 20013. 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 (R0610)
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 (Z0815)
If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may request permission from the court to proceed with the civil action without paying these fees or costs. Similarly, if you cannot afford an attorney to represent you in the civil action, you may request the court to appoint an attorney for you. You must submit the requests for waiver of court costs or appointment of an attorney directly to the court, not the Commission. The court has the sole discretion to grant or deny these types of requests. Such requests do not alter the time limits for filing a civil action (please read the paragraph titled Complainant's Right to File a Civil Action for the specific time limits).
FOR THE COMMISSION:
______________________________ Carlton M. Hadden's signature
Carlton M. Hadden, Director
Office of Federal Operations
April 15, 2016
__________________
Date
1 This case has been randomly assigned a pseudonym which will replace Complainant's name when the decision is published to non-parties and the Commission's website.
2 While the Agency failed to include a copy of its supplemental investigation into the issue of compensatory damages in the complaint file provided to us on appeal, it had provided a copy of the ordered supplemental investigation to the EEOC Compliance Officer assigned this matter. Therefore, we find that the record is complete for a review of the Agency's decision regarding Complainant's entitlement to compensatory damages.
3 The Agency has asserted that it has already paid Complainant $20,000 in compensatory damages as a result of its final decision in this matter.
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