Stephanie A. Woolf, Complainant, v. Stephen Chu, Secretary, Department of Energy, Agency. Appeal No. 0120101756 Hearing No. 550-2007-00181X Agency No. 05-02 & 06-0115 DECISION On March 16, 2010, Complainant filed an appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from the Agency's February 16, 2010 final order granting compensatory damages based on 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 Commission deems the appeal timely and accepts it pursuant to 29 C.F.R. § 1614.405(a). For the following reasons, the Commission MODIFIES the Agency's final order. BACKGROUND At the time of the events giving rise to this complaint, Complainant worked as a Physical Scientist, GS-13, at the Agency's Environmental Technical Support Division (ETSD), Idaho Falls (DOE-ID) facility in Idaho Falls, ID. In Woolf v. Department of Energy, EEOC Appeal No. 0120083727 (June 4, 2009), the Commission found that Complainant was: 1. sexually harassed based on her sex (female) when or about March 30, 2005, she was subjected to unwanted physical contact by a co-worker; and, 2. retaliated against for EEO activity (reporting sexual harassment and initiating EEO activity) when on April 14, 2005, at a meeting attended by Complainant, the Union President (UP 1), and a Labor Management Specialist (LMS 1), LMS 1 stated that an EEO complaint would polarize the office and affect Complainant's future at the Agency. The Commission ordered the Agency to calculate proper compensatory damages in light of our holding.1 In accordance with our direction the Agency issued a second final order on February 16, 2010. It denied Complainant's request for pecuniary damages, granting Complainant $15,000 in non-pecuniary damages, and allowing $54,949.73 for attorney fees and costs. CONTENTIONS ON APPEAL Complainant, through her representative, contests the denial of pecuniary damages, and maintains that the $15,000 awarded in non-pecuniary damages is too low in light of the alleged harms. Complainant believes that an award of $125,000 for non-pecuniary damages is appropriate and asserts that the alleged harms are directly attributable to the sexual harassment and retaliation she experienced. In response the Agency argues that, with respect to pecuniary damages, Complainant has failed to show any nexus between the harms alleged and the discrimination. Finally, the Agency maintains that an award of $15,000 in non-pecuniary damages is appropriate in light of similar cases. ANALYSIS AND FINDINGS 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). 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 an 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 any 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. Nexus Between Alleged Harm and Discrimination Complainant, through her representative, insists that increased medical expenses, lost income, relocation expenses, and expenses relating to an automobile accident all directly stem from the discrimination she experienced. Complainant requests $4,883.74 for increased medical expenses; however, Complainant has not offered any documentation in support of this claim. She merely presents the total costs incurred in receiving treatment, but offers little in the way of receipts, physician statements, or even a specific time frame in which the treatment was received.2 There is no showing, beyond Complainant's own statements, that the increased medical costs she suffered were caused by the Agency's unlawful behavior. Similarly, Complainant offers no evidence showing how the costs from her automobile accident ($2,372) - an accident which took place in Virginia, over one year after the discriminatory incidents - were caused by the Agency's unlawful discrimination. Complainant's claims for lost income and relocation expenses ($22,712 and $63,191.59, respectively), likewise, are not supported beyond Complainant's own statements that the alleged harms were caused by the Agency. Complainant claims that she was constructively discharged. This claim was not part of her complaint, and the Commission did not find constructive discharge. We note that Complainant's parents submitted a statement describing the effects that the discrimination had on Complainant; however, we find that this letter does not adequately support Complainant's request for pecuniary damages, and speaks more to the issue of non-pecuniary damages. We conclude that Complainant's request for pecuniary damages (for medical expenses, lost income, relocation expenses, and expenses related to a car accident) was properly denied, in that no nexus between the alleged harm and the unlawful action has been established. The Commission agrees with the Agency's finding that Complainant did indeed suffer stress, anxiety, depression, and other emotional harms; further, it is the conclusion of the Commission that, as the Agency found, these harms are attributable to the sexual harassment and retaliation that Complainant experienced. We also agree with the Agency's finding, which was based on a statement by Complainant's parents, that Complainant's health has improved since she left the Agency [on October 14, 2005]. Given that we agree with the Agency's conclusion that Complainant is entitled to compensation for these non-pecuniary harms, our task now is to determine whether the Agency awarded an appropriate amount to Complainant. Travel Expenses to the EEO Hearing The EEOC held a hearing in Idaho Falls, Idaho on Complainant's complaint on August 30, 2007. As part of her claim for past pecuniary damages, Complainant requested travel costs incurred for her to attend the hearing. A list of claimed expenses around this time had a line item "for Trial" of $403.91 for a flight by Complainant, and a car rental expense of $174 (but no reference to "trial."). The Agency disallowed any expenses related to travel to the EEO hearing, finding they were not permissible under statutes governing reimbursement for employees traveling on official business. It reasoned that Complainant was not a governmental employee. These expenses were mis-categorized by the parties as past pecuniary damages. They are actually costs related to litigating the EEO complaint. 3 A prevailing complainant is entitled to recovery of her costs in prosecuting the claims on which she prevailed. These include travel expenses. 29 C.F.R. § 1614.501(e); Tan v. United States Postal Service, EEOC Appeal No. 01A46030 (February 9, 2006). Reasonable costs incurred directly by the prevailing complainant are compensable. Costs must be proved in the same manner as fees, and the complainant must provide documentation, such as bills or receipts. See Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at 11-5 (November 9, 1999). Complainant is entitled to reimbursement by the Agency of proven costs of travel for her to attend the hearing and return home. The order below will provide Complainant with an opportunity to claim these expenses from the Agency. Calculation of Non-Pecuniary Damages We now turn to the issue of whether the Agency's award of $15,000 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 no cases similar to her own where the complainants were awarded amounts similar to the figure she now requests. The Agency cites an extensive range of cases, involving facts similar to those here, where the non-pecuniary awards were comparable to the figure the Agency offered Complainant. Bearing this in mind, we find that the Agency's award of $15,000 is adequate to compensate complainant for the non-pecuniary harms she suffered due to the Agency's unlawful actions. See Van Wolken v. Department of Homeland Security, EEOC Appeal No. 07A30134 (May 11, 2004) (award of $12,000 in non-pecuniary damages held appropriate in case involving sexual harassment and retaliation where appellant suffered stress, insomnia, headache, stomach aches, and panic attacks). The Agency's final decision is MODIFIED. ORDER The Agency shall take the following actions: Within 30 calendar days after this decision becomes final, the Agency will send a letter to Complainant asking that she submit a request for costs for her (not her attorney) to attend the EEO hearing in Idaho Falls, Idaho, on August 30, 2007. The letter shall ask Complainant to support her request with an explanation and documentation, such as itineraries, receipts, bills, and so forth.4 A copy of the letter shall be sent to Complainant's attorney. After Complainant submits proof of her costs, the Agency shall reimburse her for them. The Agency shall complete these actions within 90 calendar days after this decision becomes final. A copy of the Agency's letter to Complainant asking her to submit to it a requests for her costs to attend the EEO hearing, and other proof of compliance, must be sent to the Compliance Officer, as referenced below. 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. ATTORNEY'S FEES If Complainant has been represented by an attorney (as defined by 29 C.F.R. § 1614.501(e)(1)(iii)), she may be entitled to an additional 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. STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0610) 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 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 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 (Z0610) 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 from the Court that the Court appoint an attorney to represent you and that the Court also 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 with the Court 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 August 10, 2010 __________________ Date 1 We affirmed that part of the Agency's order which found that no retaliation took place with respect to three other claims. 2 Complainant states that she required treatment due "to the stress in the years immediately following the incidents," but never specifies whether the treatment occurred throughout this period, immediately after the incidents, or recently. 3 Complainant also requested the flight expense of another individual, apparently her daughter. This is not awardable as a cost of litigation, nor as pecuniary damages for the discrimination arising from claims 1 and 2. 4 If Complainant is claiming a car rental expense, she should prorate it if the car was rented longer than necessary for attendance at the hearing. ?? ?? ?? ?? 2 0120101756 U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 2 0120101756