0720110028
03-07-2012
Cindy Holley, Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service, Agency.
Cindy Holley,
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 0720110028
Hearing No. 532-2008-00143X
Agency No. 1C-431-0020-07
DECISION
Following its April 26, 2011, final order, the Agency filed a timely
appeal which the Commission accepts pursuant to 29 C.F.R. § 1614.405(a).
On appeal, the Agency requests that the Commission affirm its partial
rejection of an EEOC Administrative Judge's (AJ) award of attorney’s
fees and compensatory damages pursuant to Title VII of the Civil Rights
Act of 1964 (Title VII), as amended, 42 U.S.C. § 2000e et seq. For the
following reasons, the Commission REVERSES the Agency’s final order.
ISSUES PRESENTED ON APPEAL
The Agency argues on appeal that the AJ’s awards of attorney’s fees
and compensatory damages were excessive. Complainant did not submit a
statement on appeal.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked
as a Flat Sorting Machine Clerk at the Agency’s City Gate facility
in Columbus, Ohio. On October 25, 2006, Complainant became embroiled
in a conflict with two male coworkers (CW1 and CW2) in the Flat Unit.
Without her permission, CW1 took a digital photograph of Complainant for
the purpose of posting the photograph on an internet site called “Hot
or Not.” Complainant objected to this and complained to her supervisor
(S1). In response, S1 instructed CW1 to refrain from such behavior.
The reprimand prompted CW1 and his friend CW2 to engage in a pattern of
taunting and mocking Complainant with catcalls, some of them over the
facility’s public address system. In addition, on two occasions when
Complainant was driving home, CW1 drove his car near Complainant’s in
a manner she regarded as threatening. On the first of these occasions,
Complainant observed a hand written sign attached to CW1’s car that
read “WHA CUNT.” In the second driving incident, which occurred
on September 4, 2007, CW1 drove his car next to Complainant’s car and
appeared to photograph her. He pulled his car in front of Complainant’s
and switched on his flashers.
On February 6, 2008, Complainant filed an EEO complaint alleging that
the Agency discriminated against her on the bases of sex (female) and
in reprisal for prior protected EEO activity when she was subjected to
hostile workplace sexual harassment. By a settlement agreement dated
April 10, 2007, the complaint was resolved. The agreement provided that
the Agency would transfer Complainant to the Automation Unit which is
separate from the Flat Unit for one year to permit her time to obtain
a bid job in an area other than flat sorting.
The Agency transferred Complainant to the Automation Unit but, in breach
of the agreement, returned her to the Flat Unit on August 23, 2007,
based on the instructions of a second supervisor (S2). The harassing
behavior by CW1 and CW2 resumed. Complainant complained about the
breach. The Agency determined that it had breached the Agreement and
at Complainant’s request rescinded the agreement and reinstated
Complainant’s EEO complaint. Shortly thereafter, Complainant was
reassigned to the Automation Area. An investigation was conducted and 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.
The AJ held a hearing on May 20, 2009, and issued a decision on March
15, 2011. The AJ held that Complainant failed to establish that she had
been subjected to sexual harassment but proved she had been retaliated
against for having engaged in protected EEO activity, i.e., complaining
about the alleged sexual harassment that formed the basis for the
complaint. The Agency subsequently issued a final order implementing,
in part, and rejecting, in part, the AJ’s decision. Specifically, the
Agency accepted the AJ’s findings on the merits of the complaint but
rejected, as excessive, the AJ’s award of $10,000.00 in compensatory
damages and $77,651.75 in attorney’s fees.1
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).
Attorney’s Fees
The Commission, an agency, or an AJ may award complainant reasonable
attorney's fees and other costs incurred in the processing of a complaint
regarding allegations of discrimination in violation of the Title VII. 29
C.F.R. § 1614.501(e). To establish entitlement to attorney's fees,
complainant must first show that he or she is a prevailing party. See
Buckhannon Bd. and Care Home Inc. v. West Virginia Dep't of Health
and Human Resources, 532 U.S. 598 (2001). A prevailing party for this
purpose is one who succeeds on any significant issue, and achieves
some of the benefit sought in bringing the action. See Davis v. Dep't
of Transportation, EEOC Request No. 05970101 (February 4, 1999)
(citing Henslev v. Eckerhart, 461 U.S. 427, 433 (1983)). A finding
of discrimination raises a presumption of entitlement to an award of
attorney's fees. 29 C.F.R. § 1614.501(e)(i).
Attorney's fees shall be paid for services performed by an attorney
after filing of a written complaint. Id. An award of attorney's fees is
determined by calculating the loadstar, i.e., by multiplying a reasonable
hourly fee times a reasonable number of hours expended. Hensley,
at 433; 29 C.F.R. § 1614.501(e)(2)(ii)(B). “There is a strong
presumption that this amount represents the reasonable fee.” 29
C.F.R. 1614.501(e)(2)(ii)(B). A reasonable hourly fee is the prevailing
market rate in the relevant community. Blum v. Stenson, 465 U.S. 886
(1984). A petition for fees and costs must take the form of a verified
statement required by the Commission's regulations at 29 C.F.R. §
16l4.501(e)(2)(i).
Here, the Agency argues that the award of attorney’s fees should
be substantially reduced to reflect the fact that Complainant was
unsuccessful on her claim of sexual harassment, having prevailed only
on her claim of retaliation. The Agency’s position is not well
taken. While it is true that under some circumstances attorney's fees
will not be awarded for work on unsuccessful claims, Hensley, supra,
at 434. courts have held that fee applicants should exclude only time
expended on “truly fractionable” claims or issues on which they
did not prevail. See Nat'l Ass'n of Concerned Veterans v. Secretary
of Defense, 675 F.2d 1319, 1327 n.13 (D.C. Cir. 1982). Claims are
fractionable or unrelated when they involve distinctly different claims
for relief that are based on different facts and legal theories. Hensley,
461 U.S. at 435. However, in cases where a claim for relief involves
“a common core of facts or will be based on related legal theories”
a fee award should not be reduced simply because the plaintiff failed to
prevail on every contention raised in the lawsuit. Id. “The hours spent
on unsuccessful claims should be excluded in considering the amount of
a reasonable fee only where the unsuccessful claims are distinct in all
respects from the successful claims.” See EEO MD-110, Ch. 11, Sect. 6
(A)(7) (citation omitted).
In the instant case the AJ found that S1 retaliated against Complainant
by transferring her from the Automation Unit back to the Flat Unit in
breach of the settlement agreement. S2 did this as punishment for
Complainant’s “engaging in protected EEO activity, complaining
of sexual harassment; filing an EEO complaint regarding a hostile work
environment and engaging in mediation to resolve her EEO complaint.” AJ
Decision at 19. Thus, the sexual harassment and retaliation claims are
not “fractionable or unrelated” since evidence of the alleged sexual
harassment was necessary to prove S2’s motivation for retaliation.
Therefore Complainant is entitled to $77,651.75, the full amount in
attorney’s fees as ordered by the AJ.2
Compensatory Damages
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 Agric.,
EEOC Appeal No. 01945652 (July 17, 1995). Objective evidence in support
of a claim for non-pecuniary damages claims includes statements from
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) (hereafter referred to as “Notice”); Carle v. Dep't
of the Navy, EEOC Appeal No. 01922369 (Jan. 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 v. Dep't of Agric., supra. Finally, 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).
A proper award of nonpecuniary compensatory damages should be consistent
with the amount awarded in similar cases. See Ward-Jenkins v. Department
of Interior, EEOC Appeal No. 01961483 (March 4, 1999) (citing Cygnar
v. City of Chicago, 865 F.2d 827, 848 (7th Cir. 1989). In the instant case
there was substantial evidence that Complainant suffered from depression
for an extended period as a result of the Agency’s retaliatory actions.
We conclude that an award of $10,000.00 is consistent with Commission
precedent, and is neither “monstrously excessive” nor the product
of passion or prejudice. See, e.g., Jenkins v. United States Postal
Service, EEOC Appeal No. 07A30087 (Jan. 30, 2004) ($10,000.00 awarded in
non-pecuniary damages where a discriminatory letter of warning caused
the complainant to experience a worsening of pre-existing stress, as
well as insomnia, and depression).
CONCLUSION
For the foregoing reasons, the Agency's final order so far as it fails to
implement the Administrative Judge’s decision is REVERSED and REMANDED
for the Agency to take corrective action in accordance with this decision
and the ORDER below.
ORDER
To the extent it has not already done so, the Agency is ordered to take
the following remedial actions within thirty (30) calendar days of the
date this decision becomes final:
(1) the Agency shall restore Complainant's leave used for absences
related to her being told the she was being placed back into the Flat
Unit on August 22, 2007, and any absences related to her having been
placed back into the Flat Unit on August 23, 2007, and/or any absences
related to or arising out of the September 4, 2007 incident involving
the employees identified in the Commission’s decision as CW1 and CW2;
(2) the Agency shall reimburse Complainant for any wages lost as a result
of her absences related to being told of her return to and/or actual
return to the Flat Unit arising out of the September 4, 2007 incident,
including but not limited to time taken off to attend civil proceedings
regarding behavior of the employees identified in the Commission’s
decision as CW1 and CW2 toward Complainant from August 23, 2007 forward;
(3) the Agency shall pay interest to Complainant on any lost wages
awarded;
(4) the Agency shall provide training on the subject of retaliation to
management at the City Gate facility, including but not limited to the
supervisor identified in the Commission’s decision as S2, whether or
not she is presently working at the City Gate facility,
(5) the Agency should consider taking disciplinary action against the
supervisor identified in the Commission’s decision as S2 for her
retaliatory behavior toward Complainant; and
(6) the Agency shall post a notice to employees in accordance with 29
C.F.R §1614.501 (a)(1). after being signed by the Agency within thirty
calendar days of the date of this decision, which shall remain posted
for sixty 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, or covered
by other materials;
(7) the Agency shall pay to Complainant ten $10,000.00 as compensatory
damages; and
(8) the Agency shall pay to Complainant $79,395.55 as attorney’s fees
and costs.
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 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 (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 (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
March 7, 2012
__________________
Date
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
An Agency of the United States Government
This 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
(Title VII), as amended, 42 U.S.C. § 2000e et seq. has occurred at
the United States Postal Service's City Gate facility in Columbus, Ohio
(hereinafter this facility).
Federal law requires that there be no discrimination against any employee
or applicant for employment because of the 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.
This facility was found to have subjected an employee to retaliation.
The facility was ordered to pay lost wages with interest; to pay proven
compensatory damages and attorneys’ fees and costs; to provide training;
to consider taking disciplinary action against the responsible management
official; and to post this notice. This facility will ensure that
officials responsible for personnel decisions and terms and conditions
of employment will abide by the requirements of all federal equal
employment opportunity laws and will not retaliate against employees
who file EEO complaints.
This facility will comply with federal law and 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
1 The AJ awarded $1,744.80 in costs which the Agency implemented in its
final order.
2 Because Complainant has not appealed we will not address the question
of whether the 15% reduction in the attorney’s fees already imposed
by the AJ was appropriate.
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U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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