Patricia Pearman v. Department of the Navy 07A40063 11/18/04 . Patricia Pearman, Complainant, v. Gordon R. England, Secretary, Department of the Navy, Agency. Appeal No. 07A40063 Agency No. DON-00-57095-110 Hearing No. 120-A1-4212X DECISION Following its June 19, 2003 final order, the agency filed a timely appeal which the Commission accepts pursuant to 29 C.F.R. § 1614.405. On appeal, the agency determined that it would implement an EEOC Administrative Judge's (AJ) finding that it discriminated against complainant on the basis of reprisal due to her prior EEO activity. However, the agency requests that the Commission affirm its rejection of the AJ's order to award attorney's fees in light of complainant's failure to accept an Offer of Resolution. On July 1, 2003, complainant also submitted an appeal requesting that the AJ's finding that complainant was not subjected to harassment be reversed, and that the AJ's awards of compensatory damages and attorney fees be enlarged. For the following reasons, the Commission MODIFIES the relief in the agency's final order. Complainant, a Tractor Operator employed at the agency's East Haven Golf Course, Norfolk, Virginia facility, filed a formal EEO complaint with the agency on August 4, 2000, alleging that the agency had discriminated against her when: (1) from October 1999 through February 2, 2000, she was subjected to harassment on the basis of her sex (female); and from March 2000, through June 2, 2000, she was retaliated against for her prior EEO activity. At the conclusion of the investigation, complainant was provided a copy of the investigative report and requested a hearing before an AJ. Following a hearing, the AJ found that complainant failed to establish that she was subjected to harassment because of her sex. Specifically, the AJ found that the alleged events did not amount to severe and pervasive conduct, and even if they did, the agency cannot be held liable because the alleged harasser was not complainant's supervisor. Furthermore, the AJ found that once complainant alerted the agency to the harassment, it ended the harassment. As for the retaliation, the AJ found that when complainant complained about the sexual harassment, she was subject to several instances of retaliatory harassment between March 10, 2000 until April 25, 2000. For instance, the AJ found that the agency subjected complainant to retaliation when her supervisor assigned her more onerous tasks than she was used to, and also denied her the ability to work on Sundays. However, the AJ found that complainant failed to establish she was subjected to retaliation when she was isolated from co-workers, denied annual leave, forced to take a detail, and forced to apply for a promotion. As relief, the AJ awarded back pay for the Sundays she was not permitted to work, as well as $2,254.42 in pecuniary damages, $5,000.00 in non-pecuniary damages, $23,710.50 in attorneys fees and $638.20 in costs. The agency was also ordered to post a notice. With respect to the compensatory damages award, the AJ said that complainant's attorney failed to prove what portion of her emotional distress was attributable to the discriminatory events, and what portions were not. As such, complainant was only awarded 60% of her requested out of pocket expenses she claimed as a result of the discrimination, and was not awarded the sum of non-pecuniary damages she requested. On June 19, 2003, the agency issued a final order that implemented the AJ's decision, except it did not implement the award of attorneys fees and costs. The agency determined that the AJ's award of attorneys fees failed to consider the agency's Offer of Resolution dated June 6, 2002. In its brief on appeal, the agency argues that because it presented complainant with an Offer of Resolution that contained more relief than what complainant eventually was awarded by the AJ, it should not have to pay attorney's fees which accrued after the thirty-day expiration period of the offer. Accordingly, the agency asks that the attorney's fees award be modified to reflect this reduction. In response, complainant makes many arguments on appeal. She argues that the AJ erred in finding that complainant was not subjected to severe and pervasive conduct by her supervisor. She also argues that her compensatory damages award was insufficient and the AJ penalized her for failing to prove what emotional distress was related to the sexual harassment and what was causally related to the reprisal. Finally, complainant claims that her attorney's fee award was insufficient. As for the Offer of Resolution, complainant contends that the Offer was not an offer of full relief because it did not include equitable relief or the pecuniary damages awarded by the AJ. In the alternative, complainant maintains that the compensatory damages award should be increased. 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. After a careful review of the record, we discern no basis to disturb the AJ's finding of discrimination. The findings of fact are supported by substantial evidence, and the AJ correctly applied the appropriate regulations, policies, and laws. Although complainant argues for the finding that the agency should be held vicariously liable for the actions of complainant's co-worker, we find insufficient evidence to overturn the AJ's finding that the co-worker did not act as complainant's supervisor. Specifically, we find insufficient evidence that complainant's co-worker consistently had the authority to direct complainant's daily activities, such that he could be considered complainant's supervisor. Furthermore, the record reveals that once complainant alerted the management to the harassment, it took swift, remedial action to end the harassment. Specifically, complainant's supervisor asked complainant to create a list of her allegations, counseled the co-worker, and separated complainant from the co-worker by altering their work schedule. Finally, we note the record does not reveal that management knew or should have known that complainant was subjected to harassment and failed to take action. However, we do find that the AJ's award for compensatory damages should be modified. In so finding, we note that an award of non-pecuniary compensatory damages should reflect the extent to which the agency's discriminatory action directly or proximately caused the harm and the extent to which other factors also caused the harm. See Johnson v. Department of Interior, EEOC Appeal No. 01961812 (June 18, 1998). The amount of an 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 Cygnar v. City of Chicago, 865 F.2d 827, 848 (7th Cir. 1989); EEOC v. AIC Security Investigations, Ltd., 823 F. Supp. 571, 574 (N.D. Ill. 1993). In her decision, the AJ found that complainant, through her attorney, failed to identify what portion of her emotional distress was caused by the sexual harassment, and what part was caused by the retaliation. After a review of the record, we find there is a lack of substantial evidence to support this finding, and find that there was a sufficient attempt by complainant to follow the AJ's instructions. In that regard, we note that both physicians indicated that the main factor that caused complainant's emotional distress were factors that occurred around the time of the change in job duties, which was found to be discriminatory. Hearing Transcript at pgs. 24, 170. In that regard, the record revealed that complainant suffered from Post Traumatic Stress Disorder, Major Depression, Panic Disorder, and was on multiple medications. The record reveals that complainant suffered from nightmares, passive suicidal thoughts, panic attacks, and insomnia, and that some of this emotional distress was caused by the discrimination. Hearing Transcript at p. 19. Furthermore, we do not find support for the notion that complainant was exaggerating her symptoms, as found by the AJ. Specifically, we do not find support for the AJ's finding that complainant's Employee Assistance Program counselor considered complainant to be malingering. We do, however, agree with the AJ that complainant suffered from emotional distress due to events that she was unable to prove were discriminatory, or were related to the EEO process itself. Nevertheless, we also find that complainant suffered from emotional distress for which she should be compensated according to Commission precedent. For that reason, we find complainant should be paid $15, 000.00 in non-pecuniary compensatory damages. See Costello v. United States Postal Service, EEOC Appeal Nos. 01A01872, 01A02727 (December 27, 2001)($10,000 for emotional distress where factors other than discrimination existed); Roundtree v. Department of Agriculture, EEOC Appeal No. 01941906 (July 7, 1995)( $8,000.00 in non-pecuniary damages where medical evidence testimony was provided regarding complainant's emotional distress, but the majority of complainant's emotional problems were caused by factors other than the discrimination). Additionally, we also find that the AJ failed to make any mention of complainant's request for future pecuniary damages related to future therapy visits. Hearing Transcript at p. 25. Complainant's psychiatrist recommended that complainant see a psychiatrist for 30-40 more visits, and a therapist 40-50 more times, at $150.00 and $100.00 per hour, respectively. In making her award for past pecuniary damages, the AJ made a 40% across-the-board deduction for complainant's failure to differentiate which bills were related to the sexual harassment, and which bills were related to the retaliation. Following this line of reason, we will award complainant 60% of her requested amount of future pecuniary damages related to future therapy and psychiatric visits. The agency shall compensate complainant $5,850.00.<1> Finally, as to the agency's argument relating to its Offer of Full Relief, we find several reasons that the agency's offer of Resolution was invalid. 29 C.F.R. § 1614.109(c)(3) provides that any time after the parties have received notice that an administrative judge has been appointed to conduct a hearing, but not later than 30 days prior to the hearing, the agency may make an offer of resolution to the complainant, whether represented by an attorney or not. It goes on to add that “[t]he agency's offer, to be effective, must include attorney's fees and costs and must specify any non-monetary relief.” Id. “If the complainant fails to accept an offer of resolution and the relief awarded in the administrative judge's decision, the agency's final decision, or the Commission decision on appeal is not more favorable than the offer, then, except where the interest of justice would not be served, the complainant shall not receive payment from the agency of attorney's fees or costs incurred after the expiration of the 30-day acceptance period.” First, we decline to call the offer valid in light of the fact that it was presented more than thirty days prior to the damages hearing, not the hearing on liability. Waiting until the damages hearing to present the offer did not serve one of the regulation's purposes: judicial economy. Second, we also find that the offer was invalid because it did not specify non-monetary relief, such as the posting and training, which we specify in the order below. Finally, in light of the fact that complainant will receive more relief from our decision than was in the agency's offer, complainant is entitled to her attorney's fees following the expiration of the thirty day period. Accordingly, we find the AJ's award of attorney's fees to be appropriate, without any deductions, as argued by the agency. In that regard, we note that the 40% deduction was appropriate given the fact that complainant did not prove she was subjected to sexual harassment. Complainant contends that the AJ erred in not providing compensation for copying costs. However, we note that it is complainant's burden to prove that these costs were incurred. Since complainant failed to provide any documentation of copying costs, we decline to award her costs for such costs. See Hafiz v. Department of Defense, EEOC Petition No. 04960021 (July 11, 1997). Therefore, after a careful review of the record, including arguments and evidence not specifically discussed in this decision, the Commission MODIFIES the agency's final order and remands the matter to the agency to take corrective action in accordance with this decision and the Order below. ORDER (C0900) The agency is ordered to take the following remedial action: Within thirty (30) days from the date this decision becomes final, the agency shall pay complainant $2,254.42 in past pecuniary damages, $5,850.00 in future pecuniary damages, and $15,000.00 in non-pecuniary compensatory damages. Within thirty (30) calendar days of the date this decision becomes final, the agency shall pay complainant back pay for two (2) Sundays had she been permitted to work. The agency shall determine the appropriate amount of back pay, with interest, and other benefits due complainant, pursuant to 29 C.F.R. § 1614.501, no later than sixty (60) calendar days after the date this decision becomes final. The complainant shall cooperate in the agency's efforts to compute the amount of back pay and benefits due, and shall provide all relevant information requested by the agency. If there is a dispute regarding the exact amount of back pay and/or benefits, the agency shall issue a check to the complainant for the undisputed amount within sixty (60) calendar days of the date the agency determines the amount it believes to be due. The complainant may petition for enforcement or clarification of the amount in dispute. The petition for clarification or enforcement must be filed with the Compliance Officer, at the address referenced in the statement entitled "Implementation of the Commission's Decision." Within thirty (30) days from the date this decision becomes final, the agency shall pay complainant $23, 710.50 in attorney fees and $638.20 in costs. The agency will consider taking disciplinary action against complainant's supervisor, who was found responsible for the retaliation. The agency shall report its decision to OFO and 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. The agency shall post a notice in accordance with the paragraph below. The agency shall provide a minimum of eight (8) hours of training to complainant's supervisor in the laws prohibiting retaliation. 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 (G0900) The agency is ordered to post at its Norfolk, Virginia facility 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 (S0900) 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 (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 11/18/04 Date NOTICE TO EMPLOYEES POSTED BY ORDER OF THE EQUAL EMPLOYMENT OPPORTUNITY COMMISSION An Agency of the United States Government 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 this facility. Federal law requires that there be no discrimination against any employee or applicant for employment because of that person's RACE, COLOR, RELIGION, SEX, NATIONAL ORIGIN, AGE, or DISABILITY with respect to hiring, firing, promotion, compensation, or other terms, conditions, or privileges of employment. The East Haven Golf Course, Naval Support Activity, U.S. Department of the Navy, Norfolk, Virginia, (hereinafter referred to as “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 has been found to have discriminated on the basis of reprisal when retaliated against an employee after she reported sexual harassment by altering her job duties. The facility was ordered to award her back pay and all other benefits, compensatory damages and attorney fees. The agency was also ordered to post this notice, consider taking disciplinary action against the responsible employee and provide training to the responsible employee. 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. _________________________ Date Posted: ____________________ Posting Expires: _________________ 29 C.F.R. Part 1614 1This figure was calculated using 35 psychiatric visits at $150.00 per hour, and 45 psychotherapy visits at $100.00 per hour. The total for these fees is $9,750.00, minus the 40% across the board reduction comes to $5,850.00.