Sonyia Joiner v. Social Security Administration 07A50049 February 3, 2006 . Sonyia Joiner, Complainant, v. Jo Anne B. Barnhart, Commissioner, Social Security Administration, Agency. Appeal No. 07A50049 Agency Nos. 01-0366-SSA and 02-0220-SSA Hearing No. 340-2002-03440X DECISION The agency filed the instant appeal following the agency's February 15, 2005 notice of final action refusing to implement the EEOC Administrative Judge's (AJ) decision finding discrimination in complainant's complaint. The AJ defined the complaint as alleging that complainant was subjected to harassment on the bases of sex (female) and in retaliation for her prior protected EEO activity from 2000 to the date of the AJ's decision. On September 29, 2004, after a hearing, the AJ issued a decision finding that complainant was subjected to discrimination on the bases of her sex (female) and in retaliation for her prior protected EEO activity.<1> As relief, the AJ awarded complainant $30,000.00 in non-pecuniary compensatory damages and restoration of 80 hours of sick leave. The AJ also ordered the agency to post a notice concerning the matter, to provide EEO training to responsible agency officials, and to consider disciplining appropriate agency officials. The agency issued a notice of final action dated February 15, 2005, rejecting the AJ's findings of discrimination. On appeal, the agency argues that the instant complaint did not amount to a hostile working environment, that complainant was not discriminated against by the agency, that the basis of reprisal should not have been considered by the agency, and that the award of compensatory damages was excessive. Complainant has not challenged any of the AJ's findings or relief. 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. As an initial matter, we find that the AJ properly determined that reprisal was, in addition to sex discrimination, a basis of the complaint. In the agency's acceptance letter dated June 21, 2001, the agency defined the complaint in part as: "Finally, [complainant] claims one of these co-workers implicitly threatened her when she brought these concerns to management's attention. Although [complainant] has made management aware of these co-workers' inappropriate behavior, [complainant] claims management has failed to correct the situation." The Commission finds that although the acceptance letter and the complaint (which is a form incorporating the EEO Counselor's Report) do not specifically list the basis of reprisal, it is clear that the complaint and the acceptance letter include the basis of reprisal. The very actions quoted above in the agency's acceptance letter is a claim of reprisal for protected EEO activity. The Commission also finds that the AJ properly determined that the matters complained of constituted a hostile work environment. The complaint mainly involves the conduct of two coworkers discussing sexual issues next to complainant's work station. One of the coworkers' work station was located next to complainant's work station. The AJ generally found that one of the coworkers' had a loud voice and that the conversations and comments heard by complainant occurred as she alleged. The AJ found that complainant repeatedly complained to management about the problems, but management's response was not reasonable and not effective. Furthermore, the AJ found that both coworkers retaliated against complainant when complainant objecting to their conduct by engaging in a constant barrage of insults, some of which were sex-based, including "fat bitch," "elephant," and "big-assed bitch." The AJ found that the environment was hostile for the following reasons: The harassment by [Coworkers A and B] was pervasive and interfered with Complainant's ability to do her work in part because of the nature of the work at the TSC [teleservice center]. Each representative basically answers the phone all day, providing information to members of the public about Social Security. Each has a phone equipped with a headphone microphone to pick up their voice; a computer; and written materials which they consult to provide the correct information. When a co-worker stands within 5 - 10 feet of a representative who is talking on the phone, that co-worker's loud conversations are disruptive even if not profane. The degree of interference with the listener's work is even greater when the loud conversations include phrases such as "jerking off," "choking the chicken" [relating to masturbation], and the hostile sex-based terms referenced above. There are even more disturbing effects when the hostile, sexist remarks are directed at one individual personally, causing her individually to feel embarrassment, anger, and sadness. This is what [Coworkers A and B] did when they attacked Complainant because she opposed their inappropriate, sex-based conversations at her work station. The Commission finds substantial evidence supports the AJ's finding that the comments and actions at issue were based on sex, and for those occurring after complainant objected to the sex-based actions, were also based on reprisal for her protected activity. Furthermore, we agree with the AJ that the conduct was sufficiently severe so as to constitute a hostile work environment based on complainant's sex and in reprisal for protected activity. The Commission has held that "in situations involving co-workers, the agency is responsible for acts of sexual harassment in the workplace only where the agency knows or should have known of the conduct, and failed to take immediate and appropriate corrective action." See Archie v. United States Postal Serv., EEOC Appeal No. 01A11588 (Aug. 4, 2003) (citing 29 C.F.R. §1604.11(d)). We agree with the AJ that complainant put agency management on notice of her belief that the conduct was objectionable and based on her sex and retaliation. Furthermore, we agree with the AJ that the agency failed to take appropriate corrective action. The AJ found that one management official simply forwarded to another person complainant's electronic mail messages raising the harassment issues. The AJ also found that Coworker B was simply told on multiple occasions to return to his desk. The AJ found that, "Progressive discipline was not used, although everyone agreed that [Coworker B] would respond to such direction by initially going back to his desk for a time, only to get up and go back to Complainant's work area for more offensive conversations with [Coworker A]." Substantial evidence supports the AJ's findings regarding the agency's attempts to end the harassment. The Commission finds that the agency's actions, including the agency's proposal that complainant move work station locations, to be inadequate to constitute appropriate corrective action. Therefore, we find that the AJ properly found the agency liable for the sexual and retaliatory harassment at issue in the complaint. The AJ found that complainant suffered "sadness, anger and frustration due to the original harassment and to the subsequent retaliation for an extended period of approximately three years." The AJ also found that complainant "withdrew from normal social activities and relationships as a result of the agency's unlawful discrimination." The Commission finds that the AJ's findings regarding complainant's harm are supported by substantial evidence of the record. Furthermore, we agree with the AJ that the agency's discriminatory conduct caused such harm described above. There is no persuasive evidence that any other factor other than discrimination caused the harm suffered by complainant which is described above. To receive an award of compensatory damages, complainant must demonstrate that she has been harmed as a result of the agency's discriminatory action; the extent, nature and severity of the harm; and the duration or expected duration of the harm. See Rivera v. Department of the Navy, EEOC Appeal No. 01934157 (July 22, 1994), request for reconsideration denied, EEOC Request No. 05940927 (December 11, 1995); Compensatory and Punitive Damages Available Under Section 102 of the Civil Rights Act of 1991, EEOC Notice No. N 915.002 at 11-12, 14 (July 14, 1992). An award of compensatory damages for non-pecuniary losses, including emotional harm, should reflect the extent to which the respondent directly or proximately caused the harm, and the extent to which other factors also caused the harm. The Commission has held that evidence from a health care provider is not a mandatory prerequisite for recovery of compensatory damages. See Carpenter v. Department of Agriculture, EEOC Appeal No. 01945652 (July 17, 1995). The absence of supporting evidence may affect the amount of damages deemed appropriate in specific cases. See Lawrence v. USPS, EEOC Appeal No. 01952288 (April 18, 1996). In determining compensatory damages, the Commission strives to make damage awards for emotional harm consistent with awards in similar cases. Insofar as complainant has submitted evidence of emotional distress, we note that the Commission has awarded compensatory damages in cases somewhat similar to complainant's in terms of harm sustained. See e.g., Shah v. Department of Veterans Affairs, EEOC Appeal No. 07A30040 (Sept. 30, 2003) (awarding $30,000.00 in non-pecuniary damages when complainant was, on the basis of retaliation, harassed and received a lowered proficiency report; complainant experienced anxiety, depression, stomach distress, chest palpitations, elevated blood pressure, and interference with social and family relationships). The Commission finds Shah analogous to the instant matter with respect to the nature, severity, and duration of the harm. After considering the nature of the agency's discriminatory action, we find the award of $30,000.00 in non-pecuniary damages appropriate. Finally, we note that this award is not "monstrously excessive" and is consistent with the amounts awarded in similar cases. CONCLUSION Accordingly, the agency's notice of final action is REVERSED and the matter is REMANDED to the agency for further action in accordance with the Order listed below (which slightly modifies the AJ's order). ORDER The agency shall: (1) Within 30 days of the date this decision becomes final, pay complainant $30,000.00 in non-pecuniary compensatory damages; (2) Within 180 days of the date this decision becomes final, provide EEO training to all individuals who were responsible for the discrimination in the instant complaint; Within 30 days of the date this decision becomes final, post a notice (attached to this decision) on all employee bulletin boards at the agency's Los Angeles Teleservice Center in Los Angeles, California, that it has engaged in discrimination against complainant and that it will take all steps necessary to assure that future discrimination is eliminated; Within 30 days of the date this decision becomes final, consider taking disciplinary action against the individuals responsible for making the agency's decision in this matter. If the agency decides to take disciplinary action, it shall identify it in a compliance report the action taken. If the agency decides not to take disciplinary action, it shall set forth in its compliance report the reason(s) for its decision not to impose discipline; and Within 30 days of the date this decision becomes final, restore 80 hours of sick leave to complainant. The agency shall submit evidence showing compliance with this decision to the Compliance Officer referenced herein under Implementation of the Commission's Decision. POSTING ORDER (G0900) The agency is ordered to post at its Los Angeles Teleservice Center in Los Angeles, California, 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 (R0900) 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 (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 February 3, 2006 __________________ 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, as amended, 42 U.S.C. § 2000e et seq. has occurred at the Los Angeles Teleservice Center in Los Angeles, California (hereinafter "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 PHYSICAL OR MENTAL DISABILITY with respect to hiring, firing, promotion, compensation, or other terms, conditions or privileges of employment. The facility supports and will comply with such Federal law and will not take action against individuals because they have exercised their rights under law. The facility was found to have unlawfully discriminated against the individual affected by the Commission's findings on the bases of sex and in reprisal for protected EEO activity. The agency has been ordered to remedy the discrimination by: providing complainant compensatory damages; restoring used leave; and training the responsible officials in EEO law. The 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. The facility 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. ___________________________ Name and Title Date Posted: _____________________ Posting Expires: _________________ 29 C.F.R. Part 16141It appears that the AJ's decision was not mailed until January 4, 2005.