Complainant, v. Eric K. Shinseki, Secretary, Department of Veterans Affairs, Agency. Appeal No. 0120140224 Hearing No. 470-2012-00175X Agency No. 200H-0552-2011104968 DECISION On September 25, 2013, Complainant filed an appeal from the EEOC Administrative Judge's (AJ) decision 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. 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 complaint, Complainant worked as a Pharmacy Procurement Clerk at the Agency's Medical Center facility in Dayton, Ohio. On December 8, 2011, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the bases of race (African-American) and reprisal for prior protected EEO activity under Title VII of the Civil Rights Act of 1964 when she was subjected to harassment. In support of her claim of harassment, Complainant alleged the following events: 1. on June 11, 2011, the Chief of Pharmacy ("Chief"), who was her first-level supervisor at the time, sent her a counseling email; 2. on July 9, 2011, the Chief told her not to apply for the position of Pharmacy Supervisory Technician; 3. in June and September and on November 3, 2011, the Chief threatened to fire her or have her removed from her position; 4. on December 29, 2011, the Chief required her to participate in a fact-finding meeting regarding inappropriate credit card usage; and 5. on March 1, 2012, Complainant's first-level supervisor, the Staff Pharmacist ("Supervisor"), issued her a Counseling Memorandum for credit card usage. At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation and notice of her right to request a hearing before an EEOC Administrative Judge (AJ). Complainant timely requested a hearing and the AJ held a hearing on July 30 and 31, 2013, and issued a decision on August 13, 2013. At the hearing, Complainant asserted that the Chief was trying to get rid of Black employees and replace them with White employees. Complainant provided examples of Black employees being demoted or transferred by the Chief, who would replace them with White employees. She also indicated that the Chief became angry and threatened Complainant and other Black employees. These beliefs were shared by other Black employees and a former employee testified on Complainant's behalf. She corroborated Complainant's evidence of the Chief's prejudices against Black employees. The witnesses testified that the situation was so bad that a group of Black employees met at an off-work site to discuss the discrimination they faced at the hands of the Chief. The AJ determined that Complainant is a member of her protected class and that she engaged in prior EEO activity of which both the Supervisor and Chief were aware. The AJ noted that the actions by the Chief were concurrent with Complainant's prior EEO complaint. The AJ then found that Complainant was subjected to unwelcomed conduct. The AJ held that Complainant established that the alleged events occurred because of Complainant's protected EEO activity and race. The AJ then reviewed the alleged events to determine whether Complainant had shown that the events created a hostile work environment. The AJ found that Complainant showed that the Chief's conduct was sufficiently pervasive to alter the condition of her employment. The AJ determined that the evidence established that the Chief engaged in humiliating conduct including invading the personal space of Black employees and speaking them in a raised or yelling voice. The AJ found that the Chief told Complainant not to apply for a position that was posted and intimidated her from applying for the position. As for the credit card issue, the Chief subjected Complainant to a fact-finding proceeding despite evidence in the record establishing that the Chief already knew the results of the incident. As such, the AJ found that the fact-finding proceeding was unnecessary and used to harass Complainant. The AJ then noted that the June 2011 counseling was completely at the fault of the Chief. Therefore, the AJ concluded that Complainant established that the Chief's action constituted a hostile work environment. The AJ then found that the Agency was liable for the hostile work environment. Finding that Complainant was subjected to harassment, the AJ awarded Complainant remedies to make her whole. The AJ determined that Complainant was entitled to $4,000 in non-pecuniary damages. The AJ noted that Complainant failed to provide evidence regarding the extent, nature and severity of the harm. The AJ noted that Complainant experienced harm, however, he did not find that it was long-lasting. Based on the lack of supporting evidence, the AJ could only award Complainant $ 4,000.00 in compensatory damages. The AJ then ordered the Agency to expunge any references to the fact finding proceeding or any other counseling that was found to have constituted harassment. Finally, the AJ ordered the Agency to post a notice regarding the instant finding within its facility. When the Agency failed to issue a final order within forty days of receipt of the AJ's decision, the AJ's decision finding that Complainant proved that the Agency subjected her to discrimination as alleged became the Agency's final action pursuant to 29 C.F.R. § 1614.109(i). Complainant appealed asserting that she should have been awarded more in compensatory damages. She indicated that she experienced mental anguish during the hearing. She also had losses due to a hospitalization and had to use sick leave. She stated that she could present documentation to prove her assertions but failed to provide it on appeal. She indicated that she experienced great stress due to the racism experienced at the hands of the Supervisor during his tenure. She claimed no award could account for the mental scars left behind by the internal humiliation and feelings of degradation she personally felt. She stated that she would bring the supporting evidence to a hearing to support her claim for damages and losses due to the harassment. ANALYSIS AND FINDINGS 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. An AJ's credibility determination based on the demeanor of a witness or on the tone of voice of a witness will be accepted unless documents or other objective evidence so contradicts the testimony or the testimony so lacks in credibility that a reasonable fact finder would not credit it. See EEOC Management Directive 110, Chapter 9, at § VI.B. (November 9, 1999). The only issue before the Commission is the remedy ordered by the AJ. Specifically, Complainant asserted that she should have been provided with a promotion and an additional amount of compensatory damages. As for the promotion, we note that the finding of harassment involved the Chief telling Complainant not to apply for the position. The AJ noted that Complainant went to the Union who informed her that she could apply for the position. However, Complainant chose not to apply for the vacancy. Since the AJ did not find that Complainant was denied the position, we cannot award Complainant a new position. We now turn to Complainant's claim that the compensatory damages award should be increased. 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. 915.002, Compensatory and Punitive Damages Available Under Section 102 of the Civil Rights Act of 1991 (July 14, 1992). Briefly stated, 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. Dep't 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 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 Complainant, and the duration or expected duration of the harm. Id. at 14. In Carle v. Dep't of the Navy, the Commission explained that "objective evidence" of non-pecuniary damages could include a statement by Complainant explaining how he or she was affected by the discrimination. EEOC Appeal No. 01922369 (Jan. 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 Complainant. Id. Complainant could also submit documentation of medical or psychiatric treatment related to the effects of the discrimination. Id. Non-pecuniary damages must be limited to the sums necessary to compensate the injured party for the actual harm and should take into account the severity of the harm and the length of the time the injured party has suffered from the harm. Carpenter v. Dep't of Agriculture, EEOC Appeal No. 01945652 (July 17, 1995). Complainant has claimed that she should be awarded more than $4,000.00 in non-pecuniary compensatory damages. Complainant provided very little details regarding the harm suffered due to the harassment during the hearing. The AJ correctly found that Complainant was placed under stress due to the hostile work environment. However, there was no evidence provided regarding the duration of the harm. Complainant stated that she has medical evidence and documentation to support her assertions. She failed to provide any of that evidence to the Commission on appeal. Complainant also alleged that the complaint process further harmed her. We note that compensatory damages not available for stress from pursuing an EEO complaint. See Appleby v. Dep't of the Army, EEOC Appeal No. 01933897 (Mar. 4, 1994). Therefore, we cannot provide compensatory damages for stress she experienced during the hearing process. Taking into account the limited evidence of non-pecuniary damages submitted by the Complainant, we find no reason to modify the AJ's award of compensatory damages. The Commission finds that Complainant is entitled to non-pecuniary damages in the amount of $ 4,000.00. See Gaskins-Bryant v. U.S. Postal Serv., EEOC Appeal No. 01A05099 (Nov. 25, 2002) (awarding $ 5,000.00 in non-pecuniary damages in a race-based complaint where Complainant experienced anxiety, stress, and depression, which was confirmed by medical documentation); Linder v. U.S. Postal Serv., EEOC Appeal No. 01A24191 (Sept. 24, 2003) (awarding Complainant $ 3,500.00 in a sexual harassment complaint where Complainant suffered emotional distress that resulted in difficulty sleeping and going to work, as well as headaches when she saw the responsible management official); Haskins v. Dep't of Defense, EEOC Appeal No. 01A05396 (Mar. 30, 2001) (providing Complainant with $ 4,000.00 for a retaliatory letter of warning where he provide evidence to show that he suffered from depression, erratic behavior, emotional withdrawal, and mood swings). CONCLUSION Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we AFFIRM the AJ's decision finding discrimination and REMAND the matter for further processing in accordance with the ORDER below. ORDER (C0610) The Agency is ordered to take the following remedial action: I. The Agency shall provide Complainant with $4,000.00 in non-pecuniary damages within 30 calendar days. II. The Agency shall ensure that any documents relating to the fact-finding proceedings, the June 11, 2011 counseling email, and the March 1, 2012, counseling memorandum shall be removed from all of Complainant's personnel files. III. The Agency is directed to conduct training for the Chief who has been found to have created a hostile work environment. The Agency shall address this employee's responsibilities with respect to preventing/eliminating harassment in the workplace. IV. The Agency shall consider taking disciplinary action against the Chief identified as being responsible for the discriminatory harassment perpetrated against Complainant. The Agency shall report its decision. 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. V. The Agency shall complete all of the above actions within 60 calendar days from the date on which the decision becomes final. 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. POSTING ORDER (G0610) The Agency is ordered to post at its Medical Center in Dayton, Ohio, 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. 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 (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 (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 (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 May 30, 2014 __________________ Date 2 0120140224 U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 2 0120140224