EEOC: Sexual Harassment Compensatory Damage Award After a 7-Year Saga

 

 

Via EEOC Nancey D. v. Dep’t of Justice, EEOC Appeal 2019005600:
Commission Increased AJ’s Compensatory Damage Award to $100,000.
The AJ found that Complainant’s supervisor subjected her to sexual harassment, including instances of unwanted touching, inappropriate comments, and requests for dates and sex.  As relief, the AJ, among other things, awarded Complainant $80,000 in nonpecuniary compensatory damages.  The Commission increased the award to $100,000 on appeal, noting that amount was more consistent with amounts awarded in similar cases.  The record showed that Complainant was diagnosed with PTSD and Severe Depression as a result of her supervisor’s sexual harassment over a three-year period.  Complainant underwent treatment for these conditions including medication and counseling.  Complainant testified that she suffered humiliation, anger, panic attacks, withdrawal, weight fluctuation, migraines, erratic sleeping patterns, and frequent crying spells.   The Commission concurred with the  AJ that the weight of the evidence adequately tied the harm directly to the harassment.  The Commission affirmed the AJ’s award of $2,877 in past pecuniary damages, and $2,500 in future pecuniary damages.  Nancey D. v. Dep’t of Justice, EEOC Appeal 2019005600 (Sept. 14, 2020).
This is a DOJ/Bureau of Prisons sexual harassment case. We are highlighting it here to point out that a 7-year saga awarded a $100,000 in compensation amounts to $39 a day in damages.
That’s $91.32 day for each day in the 3-year period the individual was subjected to harassment by her supervisor.

This case was originally filed on June 21, 2013, when Complainant filed a formal EEO complaint claiming that she was repeatedly harassed on the bases of her race (African-American), sex (female), and in reprisal for prior protected EEO activity when she was subjected to sexual comments, gestures, and emails, as well as rumors of a sexual nature.

On August 7, 2019, the Agency issued a final order fully adopting the AJ’s decision and award of remedies.

On appeal, Complainant, through counsel, requests an increase in the damage awards. Specifically, Complainant requests $34,854.36 in past pecuniary damages (covering past prescriptions and counseling) and $16,000 in future pecuniary damages (covering future counseling sessions). Complainant reasons that her award for past pecuniary and future pecuniary damages should have included the full price for the medical expenses and not limited to the co-payments for the medical expenses. Regarding her request for an increase in non-pecuniary damages, Complainant reasons that the AJ’s $80,000 award should be increased to $100,000 to conform with the Commission’s prior damages decisions at the present-day value. Alternatively, Complainant argues that her nonpecuniary damages award should be increased to $190,000 to compensate for sexual harassment she endured from 1998 to 2010 during the period that she and AW were co-workers. Therefore, Complainant argues that the AJ incorrectly limited her sexual harassment claims to the period that AW was her supervisor and did not account for AW’s sexually-charged conduct that occurred twelve years before 2010.

 

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EEOC Case: FS Candidate Wins Disability Discrimination Case, Sinks For Selective Service Registration Fail

Posted: 4:32 am ET
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Via eeoc.gov:

On March 9, 2004, Complainant filed a formal complaint alleging that he was subjected to disability discrimination when he was denied an appointment to a Junior Officer position with the Foreign Service.  After an investigation, the Agency issued a final decision finding no discrimination, and Complainant appealed.  In our prior decision, we found the Agency discriminated against him when it failed to grant him a medical clearance based on its “worldwide availability” requirement.  Bitsas v. U.S. Department of State, EEOC Appeal No. 0120051657 (Sept. 30, 2009).  As relief, we ordered the Agency to retroactively offer Complainant a Junior Officer position, and to tender back pay and promotions from the date Complainant would have encumbered his position, absent discrimination, until the date he either enters on duty or is denied a medical or security clearance.  We further ordered the Agency to undertake a supplemental investigation into complainant’s entitlement to compensatory damages, provide training, consider taking disciplinary action, and post a notice of the finding of discrimination.  Id.

Pursuant to our order, on November 10, 2009, the Agency sent Complainant a Conditional Offer of Appointment to a Junior Officer position, contingent on the satisfactory completion of the security, medical, and suitability clearance processes.  On January 1, 2010, Complainant received a Class 1 Medical Clearance.  However, on July 16, 2010, the Agency’s Final Review Panel (FRP) terminated Complainant’s candidacy based on suitability grounds.

The FRP concluded that, pursuant to 5 U.S.C. § 3328, Complainant was ineligible for federal Executive branch employment because he failed to register with the Selective Service System (SSS).  The Panel also concluded that there were several instances of misconduct in Complainant’s prior employment which rendered him ineligible for employment with the Foreign Service.  Complainant appealed this decision, but on December 8, 2010, the Office of Personnel Management (OPM) determined that Complainant’s failure to register with the SSS was knowing and/or willful; thus, he was ineligible for appointment to an Executive Agency.  Complainant sought a request for reconsideration with the OPM, which was denied.

In the meantime, Complainant sent the Agency information regarding his entitlement to compensatory damages.  On April 11, 2012, the Agency issued a final decision denying compensatory damages, reasoning that the FRP’s suitability finding would have resulted in the withdrawal of his conditional offer of employment, even if he had been granted a medical clearance for worldwide availability.  Accordingly, the Agency determined complainant was not entitled to any compensatory damages.
[…]

The Agency is ordered to take the following remedial action:

1. 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 one hundred and twenty (120) calendar days after the date this decision becomes final.  The back pay period shall be from September 23, 2003 until the date the Agency discovered Complainant had not registered with the SSS, approximately July 16, 2010.  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.”

2. Within one hundred and twenty (120) calendar days, the Agency shall undertake a supplemental investigation to determine Complainant’s entitlement to compensatory damages under Title VII. The Agency shall give Complainant notice of his right to submit objective evidence (pursuant to the guidance given in Carle v. Department of the Navy, EEOC Appeal No. 01922369 (January 5, 1993)) and request objective evidence from Complainant in support of his request for compensatory damages within forty-five (45) calendar days of the date Complainant receives the Agency’s notice.  No later than ninety (90) calendar days after the date that this decision becomes final, the Agency shall issue a final Agency decision addressing the issue of compensatory damages.  The final decision shall contain appeal rights to the Commission. The Agency shall submit a copy of the final decision to the Compliance Officer at the address set forth below.

3. The Agency shall pay Complainant’s reasonable attorney fees in accordance with the paragraph below.

4. 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 of the Agency’s calculation of back pay and other benefits due Complainant, including evidence that the corrective action has been implemented.

See why. Read Harvey D. v. Department of State, EEOC Appeal No.0120122385 (Oct. 22, 2015) http://www.eeoc.gov/decisions/0120122385.txt

Under current law, all male U.S. citizens between 18–25 years are required to register with Selective Service within 30 days of their 18th birthday. Non-U.S.-citizen males between the ages of 18 and 25 (inclusive) living in the United States must also register. See the Who Must Register chart here.

 

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