U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Scarlet M.,1 Maxima R., Sharolyn S., Complainants, v. Sean J. Stackley, Acting Secretary, Department of the Navy, Agency. Appeal Nos. 0120162856, 0120162855 & 0120162816 Agency Nos. 13-00174-02926, 13-00174-02919 & 14-00174-00062 DECISION On September 14, 2016, the complainants filed their appeals with the Equal Employment Opportunity Commission (EEOC or Commission), pursuant to 29 C.F.R. § 1614.403(a), from the Agency's August 16, 2016 final decisions concerning their claims for compensatory damages and attorney's fees and costs pertaining to their 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. As the three cases arise from the same facts and the Agency's final decisions are virtually identical, we have consolidated the three appeals together for a single decision. See 29 C.F.R. § 1614.606. BACKGROUND At the time of events giving rise to this complaint, the complainants worked at the Army Ammunition Plant, Building 567, located in McAlester, Oklahoma. Complainant 1 was a Technical Writer, Complainant 2 was a Secretary, and Complainant 3 was a Clerk at the McAlester facility. Complainants 1 and 2 worked for, and in the same building as, the Director, who was the senior Agency official at McAlester. Complainant 3, as part of her duties as a clerk, would enter Building 567 three to four times a month to stock the vending machines. In August 2013, an investigation was conducted by Agency investigators and the Federal Bureau of Investigation (FBI) which concluded that the Director (the head of the Agency's facility in McAlester) had installed a hidden video camera in the women's restroom in Building 567. The Director was placed on unpaid leave during the investigation and was barred from the facility and from contacting any employees at the facility. Headquarters management held meetings with employees to inform them of the matter and offer counseling to anyone who needed it. Complainants learned of the Director's actions through these meetings. As a result of the investigation, Agency management started the process of removing the Director. However, effective August 31, 2013, the Director retired from his position with the Agency. The U.S. Attorney's Office for the Eastern District of Oklahoma charged the Director with video voyeurism between July 1, 2013 and August 14, 2013. The Director pled guilty to the charges in February 2014. All three complainants filed EEO complaints in December 2013, alleging they were subjected to discrimination on the basis of sex (female) when the Director filmed them and other women using the restroom in Building 567.2 In December 2014, the Agency issued final decisions on the three complaints. While conceding that complainants had established that the Director created a discriminatory hostile work environment, the Agency determined that it established its affirmative defense avoiding liability for the actions of the Director. Specifically, the Agency noted that it had a sexual harassment policy in place which was provided to the employees. The Agency held that as soon as management was informed of the Director's actions, it took prompt and effective action to prevent the offensive conduct from continuing, as well as providing counseling to the involved employees. Therefore, the Agency concluded that it avoided liability for the offensive environment created by the Director's actions. Complainants appealed the Agency's final decisions to the Commission, which were docketed as EEOC Appeal Nos. 0120150940, 0120150941, & 0120151220. The Commission found that the Complainants alleged the same series of events and consolidated the appeals into one decision. In Scarlet M., Maxima R., and Sharolyn S. v. Dep't of the Navy, EEOC Appeal Nos. 0120150940, 0120150941, & 0120151220 (April 13, 2016), the Commission found that the Agency erred in concluding that it had avoided liability. The Agency argued that that it avoided liability for the actions of the Director because it had an anti-harassment policy and procedure in place, and once it was informed of the Director's conduct, it took prompt action to correct the actions of the Director. However, the decision held that the Agency failed to establish the second prong of its affirmative defense. The second prong of the affirmative defense requires a showing by the employer that the aggrieved employee "unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to avoid harm otherwise." The decision determined that the affected employees informed the Agency of the camera in the bathroom within hours of its discovery. As such, the decision concluded that it cannot find that the affected employees unreasonably failed to take advantage of any preventative or corrective opportunities. Furthermore, the decision noted that the Director was the highest ranking Agency official at the McAlester facility and where the harasser is sufficiently high rank he may be treated as the Agency's proxy, resulting in the Agency's liability. Based on the findings and conclusions, the decision ordered the Agency to conduct supplemental investigations into the complainants' entitlement to compensatory damages. The Agency conducted its investigations and issued final decisions to each complainant regarding their compensatory damages, as well as fees and costs to their shared attorney. Complainant 1 provided a statement in support of her claim for compensatory damages indicating that since she was shown the video of her using the bathroom recorded by the Director, she has experienced great emotional distress. She noted that the Director violated her by watching her during a most personal moment. She said she has experienced headaches due to stress at having to go to work in the building where the harassment occurred. She also described mental fatigue, a desire to isolate herself, and a desire to change jobs and move away to a place where people did not know about the incident. She indicated that she went through the phases of grief in dealing with the pain of being observed using the restroom. She stated that she is now fearful to use any public restroom. As compensation, Complainant requested $110,000 in non-pecuniary damages. Complainant 1 also provided documentation showing that she spent $ 1009.85 in out-of-pocket expenses for membership in two wellness centers in support of her claim for pecuniary damages. Finally, she also asked for $ 3,298.50 for attorney's fees and costs. By final decision dated August 16, 2016, the Agency awarded Complainant's requested amount of attorney's fees and costs, as well as her out-of-pocket expenses for the wellness centers. The Agency awarded Complainant $30,000 in non-pecuniary damages. Complainant 2 also requested $ 110,000 in non-pecuniary damages. She provided a statement indicating that her ability to conduct herself in a "normal fashion has been changed forever." She said that she can no longer take people at face value and is suspicious of smiles, comments and gestures. She indicated that the event has challenged her ability to judge someone's character and her ability to put her trust in another person. She noted how she has a hard time going out in public without thinking about the incident. She too indicated that when she went to the restroom at work, she could still see where the cameras were placed, and was reminded of what happened. She asserted that there were days she could not perform her job with any semblance of normalcy, and said she would experience a flood of feelings, including betrayal, invasion of privacy, and theft of her peace of mind. Even after three years, she stated that she is easily set off recalling the incident, including when using the same restroom. Complainant 2 did not request pecuniary damages. She sought $ 4,274.75 in attorney's fees and costs. The Agency granted Complainant 2's request for fees and costs for the Attorney. The Agency cited the same reasoning for Complainant 2 as it did for Complainant 1's request for non-pecuniary damages, and similarly awarded Complainant 2 $30,000. Complainant 3 and her husband submitted statements supporting her request for $110,000 in non-pecuniary damages. Complainant 3 stated that the harassment caused her to, on a daily basis, look around and see if there were any recording devices. She said that she cannot go into a bathroom unless she has checked it for devices first. She reported feeling like someone is watching her and she tries to cover herself while in the bathroom. She indicated that she has lost trust in security and management for their failure to protect her. She asserted that her privacy and innocence have been stolen, and that she felt that she had been violated. As result, she said she has gained weight due to emotional eating and has experienced anxiety and panic attacks. She noted that she has anxiety when she goes into a public restroom or a dressing room. She checks mirrors and smoke detectors for cameras. Complainant 3's husband corroborated her statement. He said that he has seen a drastic change in her since the incident. He noted her anxiety over using public restrooms and that she fears going places where she would need to get undressed because she does not know who is lurking about or filming her. Complainant 3 also asked for pecuniary damages for medical expenses incurred for the treatment of her anxiety. She paid $ 25.00 for 2 sessions for a total of $ 50.00. She also asked for attorney's fees and costs in the amount of $ 3,917.25. The Agency issued its final decision granting Complainant 3's request for pecuniary damages and attorney's fees and costs. Again, the Agency awarded Complainant 3 $30,000 in non-pecuniary damages. Complainants 1, 2 and 3 timely filed appeals with the Commission. In each of the three appeals, Complainants did not challenge the Agency's award regarding attorney's fees and costs or awards for pecuniary damages. Complainant 1, 2, and 3 all asked that the Commission grant their requests for $110,000 each in non-pecuniary damages. Therefore, the only issue before the Commission in the instant appeal is the Agency's determinations regarding non-pecuniary damages. The Agency asked that the Commission affirm its decisions. ANALYSIS AND FINDINGS As this is an appeal from a decision issued without a hearing, pursuant to 29 C.F.R. § 1614.110(b), the Agency's decision is subject to de novo review by the Commission. 29 C.F.R. § 1614.405(a). See Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614, at Chapter 9, § VI.A. (Aug. 5, 2015) (explaining that the de novo standard of review "requires that the Commission examine the record without regard to the factual and legal determinations of the previous decision maker," and that EEOC "review the documents, statements, and testimony of record, including any timely and relevant submissions of the parties, and . . . issue its decision based on the Commission's own assessment of the record and its interpretation of the law"). In a claim for compensatory damages, a complainant must demonstrate, through appropriate evidence and documentation, the harm suffered as a result of the Agency's discriminatory action; the extent, nature, and severity of the harm suffered; and the duration or expected duration of the harm. Rivera v. Dep't of the Navy, EEOC Appeal No. 01934156 (July 22, 1994); Notice at 11-12, 14; Carpenter v. Dep't of Agriculture, EEOC Appeal No. 01945652 (July 17, 1995). Objective evidence in support of a claim for non-pecuniary damages claims includes statements from the Complainant and others, including family members, co-workers, and medical professionals. See Compensatory and Punitive Damages Available Under Section 102 of the Civil Rights Act of 1991, EEOC Notice No. N915.002 (July 14, 1992) (Notice); Carle v. Dep't of the Navy, EEOC Appeal No. 01922369 (January 5, 1993). Non-pecuniary damages must be limited to compensation for the actual harm suffered as a result of the Agency's discriminatory actions. See Carter v. Duncan-Higgans, Ltd., 727 F.2d 1225 (D.C. Cir. 1994); Notice at 13. A proper award should take into account the severity of the harm and the length of time that the injured party suffered the harm. See Carpenter, supra. Additionally, the amount of the award should not be "monstrously excessive" standing alone, should not be the product of passion or prejudice, and should be consistent with the amount awarded in similar cases. See Jackson v. U.S. Postal Serv., EEOC Appeal No. 01972555 (April 15, 1999) (citing Cygnar v. City of Chicago, 865 F. 2d 827, 848 (7th Cir. 1989)). Finally, we note that in determining non-pecuniary compensatory damages, the Commission has also taken into consideration the nature of the Agency's discriminatory actions. See Utt v. U.S. Postal Serv., EEOC Appeal No. 0720070001 (Mar. 26, 2009); Brown-Fleming v. Dep't of Justice, EEOC Appeal No. 0120082667 (Oct. 28, 2010). The Agency does not challenge the harm experienced and described by any of the three complainants, or its connection to the discriminatory event. As noted above, the Agency cited the same EEOC decisions in other cases involving compensatory damages to support their assertion that the complainants should each receive $30,000. In these decisions, the Agency pointed to cases where the Commission awarded this same amount of non-pecuniary damages based on stress due to harassment. However, based on the statements provided by the complainants, we find that the Agency's award for non-pecuniary compensatory damages is not sufficient. Specifically, we find that the complainants demonstrated that the Director's violation of their privacy has affected them significantly. In August 2013, they had to each watch the videos filmed by the Director while they used the women's bathroom in the workplace and identify themselves to the law enforcement officials conducting the investigation. They each indicated that, in the years since these events, they continue to have feelings of anxiety and fear that they are being watched. Both Complainants 1 and 2 still work in the same building where the incidents occurred and still have to use the same bathroom where their privacy was violated. Complainant 1 averred that she still fears using public restrooms for fear of being recorded. Complainant 2 similarly stated that she has a hard time using public restrooms and continues to feel compelled to check for recording devices. Complainant 3 averred that she covers herself when she uses the bathroom or a dressing room for fear of being recorded. She noted that she checks smoke detectors and mirrors to make sure that her privacy is not being violated. In addition, all three complainants expressed the continued negative impact of the event, some three years later, on their ongoing sense of mental well-being and their trust of others. After careful consideration of the evidence of record, we find that the complainants' request of an award of $110,000 for non-pecuniary compensatory damages is appropriate. This amount takes into consideration the nature of the discriminatory acts, the severity of the emotional harm suffered, and the length of time complainants have suffered as a result of the harm, and is consistent with prior Commission precedent. See Davis v. Dep't of Homeland Sec., EEOC Appeal No. 0720060003 (June 18, 2007) ($125,000 in non-pecuniary compensatory damages awarded where Agency's harassment resulted in complainant suffering from emotional and physical distress, including stress, fear, depression, loss of self-esteem, insomnia, headaches, weight fluctuations, and a stress induced jaw disorder); George v. Dep't of Health and Human Serv., EEOC Appeal No. 07A30079 (July 21, 2004) ($125,000 in non-pecuniary compensatory damages awarded where agency's reprisal and sex-based harassment resulted in the worsening of complainant's physical conditions, depression, and anxiety; complainant's testimony supported by testimony of complainant's husband who said that complainant was a different person, was emotionally destroyed, did not want to leave the house, and lost self-confidence); Sanford. v. U.S. Postal Serv., EEOC Appeal No. 01A31818 (May 13, 2004) (awarding $ 115,000 in non-pecuniary damages where Complainant was subjected to sexual harassment and she indicated that she is still haunted by the experience and that the harassment took control of her life and invaded her every moment leaving her feeling unsafe and in terror). CONCLUSION Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we MODIFY the Agency's final decisions awarding compensatory damages. ORDER (C0610) Within sixty (60) calendar days of the date this decision is issued, to the extent it has not already done so, the Agency is ordered to take the following remedial action: 1. The Agency shall pay Complainant 1 $110,000 in non-pecuniary damages. 2. The Agency shall pay Complainant 2 $110,000 in non-pecuniary damages. 3. The Agency shall pay Complainant 3 $110,000 in non-pecuniary damages. 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. ATTORNEY'S FEES (H1016) If Complainant has been represented by an attorney (as defined by 29 C.F.R. § 1614.501(e)(1)(iii)), 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 the date this decision was issued. 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 (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 (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 (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 January 30, 2017 __________________ Date 1 This case has been randomly assigned pseudonyms which will replace the complainants' names when the decision is published to non-parties and the Commission's website. 2 Although Complainant 3's office was not located in Building 567, she came to the building regularly and asserted that she was shown parts of the videos taken of the women's bathroom by the FBI. Complainant 3 identified herself in the video. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ 2 0120162856 9 0120162856, 0120162855 & 0120162816