The agency gave weight to a lack of evidence when deciding on award. (This is also called an excuse)
The agency issued a second FAD on February 8, 2005, finding that
complainant was entitled to $30,000.00 in non-pecuniary damages.
The agency observed that the evidence of record supported complainant’s
contention that she experienced emotional harm. It noted complainant’s
description that “she experienced many emotions, including shock,
anger, sadness, anxiety and frustration, and that she became ‘startled’
when someone approached her from behind and became edgy and nervous.”
The agency further found that complainant received counseling from EAP,
and thereafter received additional counseling from outside sources.
It noted that complainant did not provide clinical assessments of her
past or current condition. The agency, in relevant part, concluded that
complainant established that she was entitled to an award of non-pecuniary
damages in the amount of $30,000.
——————–
Susan Servold,
Complainant,
v.
Michael Chertoff,
Secretary,
Department of Homeland Security,
Agency.
Appeal No. 01200530291
Agency No. 040505
DECISION
On March 15, 2005, complainant filed an appeal from the agency’s
February 8, 2005 final decision, concerning her compensatory damages
award regarding an equal employment opportunity (EEO) complaint alleging
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 deemed timely and is accepted pursuant to 29 C.F.R. § 1614.405(a).
For the following reasons, the Commission modifies the agency’s final
decision.
ISSUE PRESENTED
The issue on appeal is whether the agency properly determined that
complainant was entitled to payment of $30,000.00 in non-pecuniary
damages.
BACKGROUND
Complainant filed a formal complaint, alleging discrimination on the basis
of sex when a co-worker (CW) made sexual remarks on a regular basis in
her presence; and on three occasions, she walked into the co-worker’s
office and found him undressed.2 On July 26, 2004, the agency issued a
final decision (FAD), finding discrimination and ordering compensatory
damages and attorney’s fees.3 On November 1, 2004, complainant
submitted her documentation in support of her claim for said relief,
including statements from herself, her daughter, father and brother,
and two friends. She also stated that she sought counseling through the
Employee Assistance Program (EAP) and continued to receive counseling
thereafter from outside sources for the period from August 2002 to
May 2003. Complainant requested an award of non-pecuniary damages in
the amount of $135,000 as “compensation for the lengthy and ongoing
substantial emotional distress [she] suffered….”
The agency issued a second FAD on February 8, 2005, finding that
complainant was entitled to $30,000.00 in non-pecuniary damages.
The agency observed that the evidence of record supported complainant’s
contention that she experienced emotional harm. It noted complainant’s
description that “she experienced many emotions, including shock,
anger, sadness, anxiety and frustration, and that she became ‘startled’
when someone approached her from behind and became edgy and nervous.”
The agency further found that complainant received counseling from EAP,
and thereafter received additional counseling from outside sources.
It noted that complainant did not provide clinical assessments of her
past or current condition. The agency, in relevant part, concluded that
complainant established that she was entitled to an award of non-pecuniary
damages in the amount of $30,000.
This appeal followed. On appeal, complainant, through her attorney,
argues that she is entitled to an award of greater that $30,000.
Specifically, complainant cites to cases similar to her own where the
complainants were awarded between $40,000 and $75,000 in non-pecuniary
damages, and she identifies relevant evidence in the statements submitted
in support thereof. She further contends that her damages and emotional
distress are aggravated by the fact the agency was aware of CW’s history
of similar conduct.
ANALYSIS AND FINDINGS
Compensatory Damages
A. Legal Standards for an Award of Compensatory Damages
Pursuant to section 102(a) of the Civil Rights Act of 1991, a complainant
who establishes his or her claim of unlawful discrimination may receive,
in addition to equitable remedies, compensatory damages for past and
future pecuniary losses (i.e., out of pocket expenses) and non-pecuniary
losses (e.g., pain and suffering, mental anguish). 42 U.S.C. 1981a(b)(3).
For an employer with more than 500 employees, such as 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 EEOC Notice No. N
915.002, Compensatory and Punitive Damages Available Under Section 102
of the Civil Rights Act of 1991 (July 14, 1992). 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. 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.
In Carle v. Department 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.
The Commission applies the principle that “a tortfeasor takes its
victims as it finds them.” Wallis v. United States Postal Service, EEOC
Appeal No. 01950510 (November 13, 1995) (quoting Williamson v. Handy
Button Machine Co., 817 F.2d 1290, 1295 (7th Cir. 1987)). However, the
Commission also applies two exceptions to this general rule. First, when
a complainant has a pre-existing condition, the agency is liable only for
the additional harm or aggravation caused by the discrimination. Second,
if the complainant’s pre-existing condition inevitably would have
worsened, the agency is entitled to a reduction in damages reflecting
the extent to which the condition would have worsened even absent the
discrimination; the burden of proof is on the agency to establish
the extent of this entitlement. Wallis, EEOC Appeal No. 01950510
(citing Maurer v. United States, 668 F.2d 98 (2d Cir. 1981)); Finlay
v. United States Postal Service, EEOC Appeal No. 01942985 (April 29,
1997). The Commission notes, therefore, that complainant is entitled
to recover damages only for injury, or additional injury, caused by the
discrimination. Terrell v. Department of Housing and Urban Development,
EEOC Appeal No. 01961030 (October 25, 1996); EEOC Notice No. N 915.002
at 12.
B. Nexus Between Alleged Harm and Discrimination
In her statement, dated September 24, 2004, complainant averred that
she had difficulty understanding how CW, who had gained her “total
and complete confidence and trust as a co-worker, a special agent, a
fellow Navy comrade, and a fellow believer and brother in Christ could
do such a thing.” She explained that she became very emotional due to
the incidents and experienced shock, disbelief, intense betrayal, fear,
anger, and sadness, followed by sorrow, depression and frustration about
the events. She further asserted that she had difficulty concentrating
and cried most of time. In addition, she maintained that, when she
heard that CW was involved in the sexual harassment of other women in
the office, she felt sick to her stomach, and for the next ten days,
could not sleep. She described herself as very edgy and nervous, and
noted that she would shake and her heart would race when people walked up
behind her, especially males. She asserted that, even up until the day
of her affidavit, she had nightmares and required an over-the-counter
sleep aid. She also discussed her need to take a Life Skills course in
order to assist her in coping with the incidents.
Complainant’s daughter stated that complainant has suffered a great deal
of stress, misery, and torment, and that the strain has caused insomnia,
which makes her mindless and exhausted. She further described her
mother as high-strung and agitated. She noted that she too was affected,
as she has had to assist her mother in dealing with recovery.
Complainant’s father and brother described complainant as feeling
nervousness and fear. Both stated that complainant would call them crying
about the situation at work. She told them that she was fearful of losing
her job, and both noted that she appeared to feel very helpless, was
losing sleep, and was finding it hard to go to work and to concentrate.
Her father stated that complainant was hurting emotionally and was getting
sick. Her brother noted that the situation was causing her extreme
stress and anxiety, and that the situation was becoming unbearable.
Two of complainant’s friends also provided statements regarding
complainant’s emotional state. One friend described how complainant
was having difficulty completing daily tasks because she exerted so much
energy worrying about the incidents. She also described how complainant
was constantly in fear that another similar incident might occur.
This friend provided childcare for complainant so that she could attend
counseling services. Complainant’s other friend, who was also a coworker,
averred that, during the time of the incident, he noticed that complainant
seemed frightened to be alone in the office. He described her as being
“hyper-vigilant, almost to the point of paranoia.” He noted that she
related to him that she had difficulty relaxing or sleeping in her
off duty time, and that her preoccupations affected her daily life and
work performance. He also recalled that complainant told him that she
believed that CW had access to her home address and telephone number.
As such, she told him that she feared for her personal safety as well
as that of her family.
The record further reflects that complainant attended 18 one-on-one
counseling sessions from August 2002 to March 2003 due to the
incidents. In numerous medical records, complainant’s psychologist
reported complainant’s feelings of anxiety, sleep problems, agitation,
fearfulness, and gastrointestinal problems. The psychologist noted that,
during numerous counseling sessions, complainant described episodes of
daily anxiety, increased stress, loss of sleep, depression, and feelings
of being overwhelmed. Finally, the record reflects that complainant
attended 24 group counseling courses at the Life Skills Learning Center
to assist her in coping with the harassment.
Based upon the objective evidence discussed above, the Commission finds
that CW’s conduct caused the pain and anguish for which complainant seeks
non-pecuniary damages. The record reveals that the CW’s conduct resulted
in complainant requiring counseling for her daily anxiety, sleep problems,
agitation, fearfulness, and gastrointestinal problems. Furthermore, the
statements submitted by complainant, her daughter, father, brother, and
friends confirm that the subject incidents caused complainant a great deal
of stress and anxiety and caused her to have difficulty sleeping.
C. Calculation of Non-Pecuniary Damages
We now turn to the issue of whether the agency’s award of $30,000 in
non-pecuniary compensatory damages was adequate. There is no precise
formula for determining the amount of damages for non-pecuniary 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). It should
likewise be consistent with amounts awarded in similar cases. Hogeland
v. Department of Agriculture, EEOC Appeal No. 01976440 (June 14, 1999).
On appeal, complainant cited to cases similar to her own where the
complainants were awarded between $40,000 and $75,000 in non-pecuniary
damages. She has provided evidence, through medical records and various
statements, of the effects of the agency’s discrimination. Based on
the objective evidence reviewed above, we find that the agency’s award
of $30,000 is inadequate to compensate complainant for the emotional
distress she suffered due to CW’s harassment.
Complainant’s condition appeared to last at least two years in duration;
she experienced daily anxiety, increased stress, feelings of depression,
and gastrointestinal problems; she encountered difficulty sleeping
and concentrating; and she had to seek counseling, to include 18
one-on-one sessions and 24 group counseling sessions, due to the agency’s
discriminatory conduct. The Commission has awarded non-pecuniary damages
in the amount of $45,000.00 in similar cases. Accordingly, taking into
account the evidence of non-pecuniary damages submitted by complainant,
the Commission finds that she is entitled to non-pecuniary damages
in the amount of $45,000.00. Turner v. Department of Interior, EEOC
Appeal No. 01956390 (April 27, 1998) ($40,000 in non-pecuniary damages
awarded where the agency subjected complainant to sexual harassment and
retaliation, which resulted in depression, anger, anxiety, frustration,
sleeplessness, crying spells, and loss of self-esteem); Amen v. United
States Postal Serv., EEOC Appeal No. 07A10069 (January 6, 2003)
($50,000.00 award in non-pecuniary damages where complainant suffered
prolonged mental anguish, depression, humiliation, insomnia, etc.,
as a result of the agency’s discriminatory actions). Our determination
considers the emotional and physical symptoms described by complainant,
her psychologist, her daughter, father, and brother and her friends.
We further find that this award is not motivated by passion or prejudice,
is not monstrously excessive, and is consistent with Commission precedent.
See Cygnar v. City of Chicago, 865 F.2d 827, 848 (7th Cir. 1989);
EEOC v. AIC Security Investigations, Ltd., 823 F. Supp. 571, 574
(N.D. Ill. 1993).
CONCLUSION
Accordingly, the agency’s decision is modified and remanded for further
processing in accordance with this decision and the Order below.
ORDER
The agency is ordered to take the following remedial action:
Within sixty (60) days from the date this decision becomes final,
the agency shall pay complainant $45,000 in non-pecuniary compensatory
damages.
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 (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
____3/29/07________________
Date
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days after it was mailed. I certify
that this decision was mailed to complainant, complainant’s representative
(if applicable), and the agency on:
__________________
Date
______________________________
Equal Opportunity Assistant
1 Due to a new data system, this case has been re-designated with the
above referenced number.
2 In her statement on appeal, complainant contends that the agency had
been made aware of CW’s similar behavior toward other women. For example,
prior to the incidents in the present matter, CW had been found hiding
behind locker benches inside the female locker room, peeping into the
female dorm rooms while at the agency academy, and entering the women’s
locker room at the federal gym and looking under a shower curtain at
a female special agent. As a result of one female agent’s complaint,
CW was verbally counseled and restricted from using the gym facilities.
3 Complainant is not appealing the award of attorney’s fees or pecuniary
damages herein. Accordingly, the Commission will not address said
damages or fees.
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2
01A53029
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
9
0120053029
