U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013

Complainant,

v. 

Robert McDonald,
Secretary,
Department of Veterans Affairs,
Agency.

Appeal No. 0120130353

Hearing No. 430-2011-00163X

Agency No. 200405582010101407

DECISION

On October 26, 2012, Complainant filed a timely appeal from the Agency's October 17, 2012, final order concerning her 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.  For the following reasons, the Commission AFFIRMS the Agency's final order (FAD), which fully implemented the EEOC Administrative Judge's (AJ) finding of sex discrimination, and her award of $59,775.76 in attorney's fees and $70,618.82 in compensatory damages to Complainant.

ISSUES PRESENTED

Was the AJ's award of $50,000 in non-pecuniary compensatory damages and $18,018.82 in past pecuniary damages correct?

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a Staff Nurse at the Gastroenterology Clinic at the Veterans Affairs Medical Center in Durham, North Carolina.  

On March 4, 2010, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the basis of sex (female) when:  

1. During November 2009, the Interim Nurse Manager grabbed Complainant's arm, tried to place a phone in her lab coat pocket while she was carrying sheets, smacked the metal cabinet very loud, stood behind her really close, breathed in her ear from behind, and pressed his body against her body;

2. On November 1, 2009, the Interim Nurse Manager squeezed Complainant's cheek and said "so cute;"

3. On or about November 18, 2009, the Interim Nurse Manager grabbed Complainant's neck from behind;

4. On December 18, 2009, Complainant reported the inappropriate conduct to management;

5. In January 2010, Complainant sent an email to the Scheduling Nurse regarding her medical appointments for the first quarter, however the posted schedule did not reflect any of the appointments;

6. On April 27, 2010, Complainant reported to management that Interim Nurse Manager brushed his arm past her back, and the Agency did not take any action.

At the conclusion of an investigation into the allegations, the Agency provided Complainant with a copy of the report of investigation (ROI) and notice of her right to request a hearing before an Equal Employment Opportunity Commission Administrative Judge (AJ).  Complainant timely requested a hearing and the AJ held a hearing on May 1, 2012 on the sole issue of damages and attorney's fees because the Agency stipulated to liability on the Complainant's sexual harassment claim.  The AJ issued a decision on September 27, 2012.  The Agency subsequently issued a FAD adopting the AJ's finding that Complainant proved that the Agency subjected her to sexual harassment and awarding her the amounts in compensatory damages and attorney's fees that the AJ stipulated.

CONTENTIONS ON APPEAL

Complainant asks for $125,000 in non-pecuniary compensatory damages and $36,037.64 in past pecuniary damages (medical expenses medication).  Complainant's Brief In Support of Appeal (Complainant's Brief), p. 9.  Complainant asserts that the AJ took into account things like unrelated stressors, family history, and prior mental health, to reduce the award of non-pecuniary compensatory damages.  Complainant's Brief, p. 3-6.  Complainant also argues that the medical expenses she claimed were clearly caused directly by the Agency's discrimination, therefore, it was not appropriate for the AJ to reduce the damages by half. Complainant's Brief, p. 8.
 

ANALYSIS AND FINDINGS

Post-hearing factual findings by an AJ will be upheld if supported by substantial evidence in the record.  29 C.F.R. § 1614.405(a).  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).

When discrimination is found, the Agency must provide Complainant with a remedy that constitutes full, make-whole relief to restore her as nearly as possible to the position she would have occupied absent the discrimination. 29 C.F.R. § 1614.501(a)-(c); Reasor v. U.S. Postal Serv., EEOC Appeal No. 0720070004 (Jan. 6, 2009) (citing Franks v. Bowman Transportation Co., 424 U.S. 747 (1976); Albemarle Paper Co. v. Moody, 422 U.S. 405, 418-19 (1975); Adesanya v. U.S. Postal Serv.,  EEOC Appeal No. 01933395 (July 21, 1994)).

After establishing entitlement to an award of compensatory damages, 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. See Loving v. Dep't of the Treas. EEOC Appeal No. 01955789 (Aug. 29, 1997). It should likewise be consistent with amounts awarded in similar cases. See Hogeland v. Dep't of Agriculture, EEOC Appeal No. 01976440 (June 14, 1999). Non-pecuniary compensatory damages are designed to remedy a harm and not to punish the Agency for its discriminatory actions. Compensatory damages should not be motivated by passion or prejudice or be "monstrously excessive" standing alone but should be consistent with the amounts awarded in similar cases. See Ward-Jenkins v. Dep't of the Interior, EEOC Appeal No. 01961483 (Mar. 4, 1999).

The AJ's conclusion that Complainant is entitled to $50,000 in non-pecuniary compensatory damages is supported by substantial evidence in the record.  This is because Complainant had a history of depressive disorder, experienced other stressors in her life including the litigation against the Agency, and the fact that Complainant was hospitalized in September 2010 which was nearly nine months after the Agency removed the Interim Nurse Manager from Complainant's work area and five months after the last incident with him.  These factors indicate that there were both intervening and additional causes for Complainant's emotional distress and other medical conditions.  AJ's Decision, p. 11-12.  Complainant takes issue with the fact that the AJ mentioned in her decision that both Complainant's brother and sister suffered from medical problems, including bipolar illness.  Complainant argues that the AJ took this into account to reduce Complainant's damages and that it was erroneous because she inferred that Complainant had such a disorder because siblings did.  See Complainant's Brief, p. 5.  However, there is no indication that the AJ made this inference because she mentioned this in her recitation of facts of the case, but not her analysis to determine non-pecuniary compensatory damages.  The AJ's discussion of diminishments to Complainant's award of non-pecuniary compensatory damages was based solely on other factors in Complainant's own life.  See AJ's Decision, p. 10-12.

Additionally, the award of $50,000 is in line with other cases where a Complainant has experienced depression, suicidal ideations, anxiety, trouble concentrating, paranoia, insomnia, and stomach problems, and is not monstrously excessive.  Tramontozzi v. Dept. of Veterans Affairs, EEOC Appeal No. 0120053114 (May 10, 2007) ($40,000 awarded in non-pecuniary damages where complainant was diagnosed with adjustment disorder, generalized anxiety, attempted suicide, and experienced severe depression and destructive behavior as a result of the work environment but record contained evidence of contributing factors such as former drug addiction, diabetes, and post-traumatic stress disorder).

Further, the AJ's decision to reduce Complainant's claimed medical bills, prescription costs and leave usage by half was warranted given the fact that not all of the stressors were caused by the sexual harassment she experienced at the Agency.

CONCLUSION

Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed, the Agency's FAD, adopting the AJ's decision to award Complainant $59,775.76 in attorney's fees and $50,000 in non-pecuniary compensatory damages is AFFIRMED.

ORDER

Within one hundred and twenty (120) calendar days of the date this decision becomes final, if it has not already done so, the Agency is ordered to:

1. Pay Complainant the following: $18,018.82 in past pecuniary damages; $2,600 in future pecuniary damages; $50,000 in non-pecuniary damages; and $59,775.76 in attorney's fees and costs.

2. Restore 239.75 hours of Complainant's leave;

3. Post at the Gastroenterology Clinic in Durham, North Carolina, copies of the notice discussed below;

4. Provide training to the Agency personnel responsible for the discrimination, placing special emphasis on sexual harassment;

5. Consider taking appropriate disciplinary action against the Agency supervisors involved in the discrimination. 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).

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 all of the corrective action has been implemented.

POSTING ORDER (G0914)

The Agency is ordered to post at the Gastroenterology Clinic, Veterans Affairs Medical Center, in Durham, North Carolina, copies of the attached notice.  Copies of the notice, after being signed by the Agency's duly authorized representative, shall be posted both in hard copy and electronic format by the Agency within 30 calendar days of the date this decision becomes final, and shall remain posted for 60 consecutive days, in conspicuous places, including all places where notices to employees are customarily posted.  The Agency shall take reasonable steps to ensure that said notices are not altered, defaced, or covered by any other material.  The original signed notice is to be submitted to the Compliance Officer at the address cited in the paragraph entitled "Implementation of the Commission's Decision," within 10 calendar days of the expiration of the posting period.

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/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 (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 (S0610)

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 (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 Complainants 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

Sept. 9, 2015
__________________
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