U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Velva B.,1 Complainant, v. Sean J. Stackley, Acting Secretary, Department of the Navy, Agency. Appeal No. 0120152226 Hearing No. 551-2013-00162X Agency No. DON-12-4523A-01631 DECISION On June 12, 2015, Complainant filed an appeal, pursuant to 29 C.F.R. § 1614.403(a), from the Agency's May 15, 2015 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. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as an Electrician Helper at the Agency's Bangor Naval Base in Bremerton, Washington. On April 10, 2012, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the bases of race (African-American), sex (female), and reprisal for prior protected EEO activity under Title VII of the Civil Rights Act of 1964 when: 1. On March 12, 2012, she was left in the shop to answer phones when the rest of her crew was sent out to work on the boats. 2. On April 3, 2012, she heard a group of sailors who were watching a Sexual Assault Prevention video making comments and laughing about the topic. 3. On April 11, 2012, she was confronted by her supervisor (Supervisor) and told that if she needed to see an EEO counselor or go anywhere else, she needed to tell him. 4. On April 12, 2012, she was approached by a co-worker (CW) who said he had heard that she was trying to take down the whole ship. 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 Equal Employment Opportunity Commission (EEOC or Commission) Administrative Judge (AJ). Complainant timely requested a hearing and the AJ held a hearing on September 12 and 17, 2014. Following the hearing, the AJ issued a decision on April 2, 2015. The AJ first addressed Complainant's claim of disparate treatment as alleged in claims (1) and (3), concluding she did not meet her burden of proving she was subjected to disparate treatment. In support of this conclusion, the AJ found that Supervisor articulated legitimate, non-discriminatory reason for the disputed actions. The Supervisor testified that he assigned work based on skill when he left Complainant in the shop to answer phones while others were assigned on the boats. On the day in question, the Supervisor noted that Complainant was a WG-5 helper and could not perform the job by herself and the work was to be done by a WG-10 mechanic. Therefore, Complainant was left behind to answer phones while more skilled workers were given other assignments. As for claim (3), the Supervisor said he wanted to know when Complainant went to the EEO Office during her assigned shift to make sure that she is paid. The record also showed that relevant union rules required workers to tell their supervisors if they are not going to their assignments to make sure employees are paid. After finding that the Agency articulated legitimate, nondiscriminatory reasons for claims (1) and (3), the AJ turned to Complainant to establish that the Agency's reasons were pretext for discrimination. The AJ held that Complainant believed she subjected to discrimination because she is one of only a few women working on the submarines and perhaps the only African American female. However, the AJ determined that beyond this bare assertion, Complainant failed to provide any evidence to that the proffered reasons for the actions were a pretext to mask discriminatory animus. However, the AJ found that Complainant was subjected to a hostile work environment based on sex. The AJ determined that comments made by Complainant's coworkers were objectively offensive and excessively sexual. The AJ recounted the lewd comments the coworkers made about their girlfriends and their sexual relationships. The AJ found that Complainant proved that comments made were hostile towards women and considered sexual epithets. Despite the Supervisor's attempts and Complainant's request that the comments stop, the language in the workplace did not get cleaned up. Based on the totality of circumstances, the AJ found that Complainant established she was subjected to a hostile work environment based on her sex with respect to claim (2). The AJ subsequently determined that the Agency failed to show that its attempts to address the matter was effective at alleviating the problem. In fact, the AJ noted that the attempts had the opposite effect of stigmatizing Complainant. As such, the AJ concluded that the Agency was liable for the hostile work environment based on sex. The AJ then turned to claim (4) and Complainant's claim of harassment based on reprisal. The AJ found that the testimony by Complainant and her coworkers supported her claim of retaliation. The AJ held that Complainant was made fun of for filing EEO complaints. Complainant was told by a coworker that "snitches get stitches" and "normally we don't tell on each other." The AJ also found that management officials made comments to other workers warning them about Complainant and stating that if they said anything derogatory around Complainant, she would complain. The AJ determined that "it is evident that the jokes and comments about [Complainant's] EEO activity were not isolated events." Therefore, the AJ concluded that Complainant established that she was subjected to a hostile work environment in retaliation for her prior protected activity. Further, the AJ held that the Agency could not avoid liability for the retaliatory harassment. Following the finding of harassment based on sex and retaliation, the AJ ordered the Agency to take remedial action, including paying Complainant for reasonable attorney's fees, conducting training for management, and posting a notice of the finding of discrimination. The AJ also determined that Complainant was entitled to compensatory damages. The AJ indicated that Complainant testified that she has suffered for over three years and has been treated for generalized anxiety disorder and work-related stressors. Complainant also stated that she suffered from depression, anxiety, constant panic attacks, hopelessness and low self-esteem. Complainant also purported that she could not sleep at night, had a hard time sleeping; and experienced an exacerbation of her chronic pain disorder. The AJ took notice of Complainant's physician who supported Complainant's diagnosis and connected the exacerbation of her condition to the workplace environment. Finally, Complainant noted that her relationships with friends and family were strained. Taking Complainant's testimony and medical evidence into consideration, as well as awards in similar cases, the AJ determined that Complainant was entitled to $32,500 in compensatory damages. The Agency subsequently issued a final order adopting the AJ's finding that Complainant proved that the Agency subjected her to sexual harassment and unlawful retaliation. Complainant appealed asserting that she should have received more in compensatory damages than what was awarded by the AJ. Specifically, Complainant argued that she should have been awarded $125,000, not the $32,500. Complainant asserted that the higher amount is justified based on statements from her certified physicians, who provided statements bolstering her testimony that the discrimination has impacted her life. She claimed that she has been harassed for over three years and that she still suffers from the emotional distress caused by the hostile work environment including anxiety, depression, insomnia, and constant panic attacks. She also asserted that the harassment has exacerbated her diagnosed Fibromyalgia. She stated that due to the harassment, she continues to experience loss of enjoyment in her life, low self-esteem, and strained relationships with family and friends. She argued that she feels isolated and fears that someone is following her home. Based on the evidence provided, Complainant believed that the AJ's award should be overturned in favor of raising the amount to $125,000. The Agency responded to Complainant's appeal asking that the Commission affirm the AJ's award of $ 32,500. The Agency argued that Complainant has not shown that the AJ's award should be increased as it is consistent with Commission precedent. 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, at 9-17 (Aug. 5, 2015). Here, the Agency has not disputed the AJ's conclusion that Complainant was subjected to sexual harassment and retaliation for complaining about it in violation of Title VII. We concur that the evidence of record fully supports the AJ's conclusions. Pursuant to section 102(a) of the Civil Rights Act of 1991, a complainant who establishes unlawful discrimination or harassment under either Title VII of the Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. § 2000e et seq. or Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq. may receive 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) as part of this "make whole" relief. 42 U.S.C. § 1981a(b)(3). In West v. Gibson, 527 U.S. 212 (1999), the Supreme Court held that Congress afforded the Commission the authority to award compensatory damages in the administrative process. 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. 42 U.S.C. § 19814(b)(3). To receive an award of compensatory damages, a 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. Rivera v. Dep't of the Navy, EEOC Appeal No. 01934157 (July 22, 1994), req. for recons. denied, EEOC Request No. 05940927 (Dec. 11, 1995); Compensatory and Punitive Damages Available Under Section 102 of the Civil Rights Act of 1991, EEOC Notice No. 915.002 (July 14, 1992), at 11-12, 14. Although damage awards for emotional harm can greatly vary, and there are no definitive rules governing amounts to be awarded, compensatory damage awards must be limited to the amounts necessary to compensate the complainant for actual harm, even if that harm is intangible. Id. at 7. It should take into account the severity of the harm and the length of the time the injured party has suffered from the harm. See Carpenter v. Dep't of Agric., 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. U.S. Postal Serv., EEOC Appeal No. 01952288 (Apr. 18, 1996). In Carle v. Dep't of the Navy, EEOC Appeal No. 01922369 (Jan. 5, 1993), the Commission explained that "objective evidence" of non-pecuniary damages could include a statement by a complainant explaining how she was affected by the discrimination. A complainant could also submit documentation of medical or psychiatric treatment related to the effects of the discrimination. Id. Upon review, we conclude that the AJ's determination that Complainant was entitled to $ 32,500 in compensatory damages is supported by the record as a whole. We note that the AJ took into consideration Complainant's medical documentation, as well as the testimony Complainant provided regarding the emotional and physical harm she experienced due to the harassment she experienced. The AJ's findings of fact concerning the harm Complainant suffered due to the discrimination is entitled to deference as there was a hearing in this case. In sum, the the AJ's decision on compensatory damages is supported by substantial evidence of record. We further find that the AJ's award is consistent with the Commission's decisions in comparable cases. See e.g. Turner v. Dep't of the Interior, EEOC Appeal No. 01956390 (Apr. 27, 1998) ($40,000 awarded where discriminatory harassment, particularly forcing complainant to carry a forty-five pound back pack, caused her to experience psychological trauma and physical injury with permanent effects); Jackson v. U.S. Postal Serv., EEOC Appeal No. 01972555 (Apr. 15, 1999) ($30,000 awarded for emotional harm suffered during a six month period); Christian v. Dep't of Veterans Affairs, EEOC Appeal No. 01996342 (Sept. 7, 2001) ($30,000 awarded where complainant was continuously sexually harassed by a co-worker for a period of six years, no medical evidence produced); Mooney v. Dep't of Agric., EEOC Appeal No. 01974494 (May 24, 2000) ($20,000 awarded where complainant suffered from depression and anxiety for six to seven months, followed by a four to five month period of major depression, due to the agency's discrimination). Therefore, we find that the AJ properly awarded Complainant $32,500 in compensatory damages. CONCLUSION Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we AFFIRM the Agency's final decision implementing the AJ's finding of discrimination and REMAND the matter in accordance with the ORDER below. ORDER (C0610) The Agency is ordered to take the following remedial action: I. To pay Complainant $ 32,500 in compensatory damages. II. To pay Complainant for attorney's fees and costs related to the AJ's finding of discrimination. III. The Agency is directed to conduct training for the management officials and employees who were found to have violated Title VII. This training shall be for a minimum of eight (8) hours. IV. The Agency shall consider taking disciplinary action against the management officials and employees found to have created the hostile work environment. 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 ninety (90) calendar days from the date on which the decision is issued. 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 (G1016) The Agency is ordered to post at its Bangor Naval Base facility 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 was issued, 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. 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 (M0416) 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. The requests may be submitted via regular mail to P.O. Box 77960, Washington, DC 20013, or by certified mail to 131 M Street, NE, Washington, DC 20507. 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 Complainant's 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 June 8, 2017 __________________ Date 1 This case has been randomly assigned a pseudonym which will replace Complainant's name when the decision is published to non-parties and the Commission's website. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ 2 0120152226 8 0120152226