01A31809
11-29-2004
Clayton Kellum, Complainant, v. John Ashcroft, Attorney General, Department of Justice, Agency.
Clayton Kellum v. Department of Justice
01A31809
November 29, 2004
.
Clayton Kellum,
Complainant,
v.
John Ashcroft,
Attorney General,
Department of Justice,
Agency.
Appeal No. 01A31809
Agency No. P-2001-0147
Hearing No. 110-A2-8070X
DECISION
Complainant timely initiated an appeal from the agency's final order
concerning his equal employment opportunity (EEO) complaint of unlawful
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.
and the Age Discrimination in Employment Act of 1967 (ADEA), as amended,
29 U.S.C. � 621 et seq. The appeal is accepted pursuant to 29 C.F.R. �
1614.405.
The record reveals that complainant, a Correctional Treatment Specialist,
GS-11, at the agency's United States Penitentiary in Atlanta, Georgia,
filed a formal EEO complaint on July 30, 2001, alleging that the agency
had discriminated against him on the bases of race (African-American), age
(D.O.B. February 9, 1954), and reprisal for prior EEO activity<1> when (1)
he was not selected for the position of Intelligence Operations Officer,
GS-006-12, which was announced under Vacancy Announcement 01-ARO-027 on
February 7, 2001. Complainant also alleged that on the bases of age,
race, and sex (male), the agency discriminated against him when (2) it
did not select him for the position of Correctional Program Specialist
(Unit Manager) in March 2001. Finally, on the bases of race, age,
and sex, complainant asserted (3) that the agency did not select him
for various positions commencing in 1998.
At the conclusion of the investigation, complainant was provided a
copy of the investigative report and requested a hearing before an EEOC
Administrative Judge (AJ). The AJ issued a Notice of Hearing dated June
24, 2002. In the Notice, the AJ requested that complainant provide
a pre-hearing statement which would include with specificity all the
factual contentions and any legal argument that would be advanced at
the hearing. In addition, the AJ ordered complainant to describe the
evidence by which compensatory damages would be proven and to include all
evidence that supported his claim for compensatory damages. On August
13, 2002, the agency moved for summary judgment on the non-selections
raised in claims (2) and (3). Complainant submitted his pre-hearing
statement on August 20, 2002, focusing on the issue of discrimination and
did not address the issue of compensatory damages. On August 30, 2002,
complainant responded to the agency's motion for partial summary judgment
stating that he had established a prima facie case of discrimination as
to claims (2) and (3) and that he demonstrated superior qualifications.
Accordingly, complainant asked that the AJ deny the agency's motion.
On September 27, 2002, the AJ issued the Pre-hearing Conference Memorandum
and Order which granted the agency's motion as to claims (2) and (3).
Therefore, the only issue to be addressed at the hearing was claim (1).
The AJ listed the witnesses who would be attending the hearing which
included complainant. The AJ noted that the agency had to secure two
witnesses by the close of business the same day as this pre-hearing order.
Otherwise, the AJ warned that he would issue a decision without a hearing.
The AJ indicated that the hearing would not be bifurcated and that
complainant should be prepared to present any evidence as to his claim
of damages. The AJ scheduled the hearing for October 1, 2002.
The agency could not secure one witness and another could not recall
the non-selection at issue. Therefore, on October 30, 2002, the AJ, sua
sponte, issued a decision without a hearing, finding discrimination as
to claim (1). The AJ concluded that complainant established a prima
facie case of discrimination on the bases of race, age, and reprisal.
The AJ then determined that the agency failed to articulate a legitimate,
nondiscriminatory reason for its failure to select complainant for
the position at issue. Specifically, the AJ noted that the agency was
unable to produce the selecting official and another employee involved
in the selection process could not recall whether he recommended the
selectee for the position. Therefore, the AJ concluded, based on the
agency's inability to demonstrate reasons for its action, that complainant
established that the selection in claim (1) was discriminatory. The AJ
also dismissed claims (2) and (3).
The AJ ordered the agency to retroactively promote complainant to the
position and provide him with back pay, interest on back pay, and all
other benefits he would have been entitled to had he been selected for the
position in claim (1). The AJ found that complainant was not entitled
to compensatory damages. He noted that complainant was ordered in the
Notice of Hearing to provide a Pre-Hearing Statement which included a
description of the evidence by which the damages would be proven and
to attach all evidence supporting his claim for compensatory damages.
The Notice of Hearing clearly stated that failure to provide such
information regarding the grounds for a claim of compensatory damages
would result in complainant being precluded from pursuing his claim.
Therefore, based on complainant's failure to comply with the order, the
AJ determined that complainant was not entitled to compensatory damages.
Complainant's attorney (Attorney) submitted a petition for attorney's fees
and costs. The AJ denied the Attorney's request for costs based on his
failure to provide any documentation of his costs. As to the Attorney's
fee petition, he indicated that his hourly fee was $220.00 and the senior
paralegal (Paralegal) were $150.00. The Attorney's fee petition named
comparative firms and another attorney without providing their specific
hourly fee. The AJ noting that the Attorney did not provide support for
his hourly rate such as a resume, list of cases, or a list of comparable
cases where a similar hourly rate was accepted, reduced the Attorney's
rate to $125.00 and the paralegal fees to $75.00. The AJ further
reduced the Attorney's hours expended by fifty percent indicating that
complainant prevailed on only one of three claims and it was not based
on the quality of representation by the Attorney but the agency's failure
to produce evidence.<2> The AJ found that a fifty percent reduction was
appropriate in this case. The AJ also disallowed the hours the Attorney
and the Paralegal spent on complainant's compensatory damages claim.
The AJ noted that the fee petition included time spent on the case prior
to complainant's submission of representation. The AJ noted that the
Attorney is entitled to fees for research prior to the notification of
representation for any services performed in reaching a determination
to represent complainant. Again, based on complainant prevailing on
one of three claims, the AJ reduced those hours spent by fifty percent.
Therefore, the AJ awarded attorney's fees of $7,515.01 based on 34.825
hours at $75.00 per hour for the Paralegal and 39.225 hours at $125.00
per hour for the Attorney.
The agency's final order implemented the AJ's decision. On appeal,
complainant does not contest the AJ's findings of fact or conclusions
of law. Complainant argues, however, that the AJ erred in denying
compensatory damages and in reducing attorney's fees by fifty percent.
As to the issue of compensatory damages, the Attorney argues on
complainant's behalf that there was no law or regulation requiring
complainant to provide information as to damages in his Pre-Hearing
Submission. The Attorney states that the Pre-Hearing Submission focused
on the issue of liability and was silent on compensatory damages.
The Attorney contends that it was understood that the issue of relief
was not bifurcated from the hearing and that complainant was to prepare
evidence as to his claim for damages and present them at that point.
Moreover, the Attorney asserts that complainant communicated with the
agency's attorney information as to damages. Specifically, the Attorney
points to an electronic mail sent to the agency on September 25, 2002,
including a detailed statement from complainant's wife outlining damages.
The Attorney refers to the electronic mail as "Exhibit A."
As to attorney's fees, the Attorney does not contest the AJ's
determinations as to the reasonable hourly rates. The Attorney argues
that the AJ should not have reduced the hours spent. Initially, the
Attorney notes that there were only two claims (1) and (2). Claim (3) was
merely to be presented as background evidence in support of the complaint.
Therefore, the Attorney was successful on one of two claims. Further,
the Attorney asserts that the claims were intertwined and it would be
impossible to segregate the hours involved in each claim. Therefore,
the Attorney claims that a reduction of fees is not justified. The agency
argues that the AJ's decision was correct.
The Commission's regulations allow an AJ to issue a decision without a
hearing when he or she finds that there is no genuine issue of material
fact. This regulation is patterned after the summary judgment procedure
set forth in Rule 56 of the Federal Rules of Civil Procedure. The United
States Supreme Court has stated that summary judgment is appropriate
where the trier of fact determines that, given applicable substantive
law, no genuine issue of material fact exists. Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 255 (1986). An issue is "genuine" if the
evidence is such that a reasonable fact-finder could find in favor of the
non-moving party. Oliver v. Digital Equip. Corp., 846 F.2d 103, 105 (1st
Cir. 1988). In the context of an administrative proceeding under Title
VII, summary judgment is appropriate if, after adequate investigation,
complainant has failed to establish the essential elements of his or
her case. Spangle v. Valley Forge Sewer Authority, 839 F.2d 171, 173
(3d Cir. 1988). In determining whether to grant summary judgment,
the trier of fact's function is not to weigh the evidence and render a
determination as to the truth of the matter, but only to determine whether
there exists a genuine factual dispute. Anderson, 477 U.S. at 248-49.
We note that the parties do not contest the AJ's issuance of a decision
without a hearing. Further, the parties concur with the AJ's findings of
fact and conclusions of law as related to the claims of discrimination.
Accordingly, we discern no basis to disturb the AJ's recommended findings
and conclusions or the agency's adoption of the AJ's decision.
Complainant appealed regarding the agency's implementation of the AJ's
decision as it pertained to compensatory damages and attorney fees.
Therefore, we shall only address the issue of complainant's entitlement
to compensatory damages and the AJ's reduction of attorney's fees.
As to the issue of compensatory damages, the AJ determined that
complainant was placed on adequate notice that failure to provide evidence
on damages in the pre-hearing submission would result in complainant being
precluded from pursuing the claim. We disagree with the AJ's conclusion.
Upon review, we find that the AJ erred in denying complainant compensatory
damages. We note that the AJ's summary judgment decision was sua sponte.
Complainant had been listed and approved as a witness had the matter
gone to a hearing. Based on evidence within his affidavit, he would have
provided testimony regarding the �pain� and �harassment� he faced due to
the non-selections. His affidavit also indicated that he experienced
�mental stress� due to the denials of promotion which affected himself
and his family. Further, the Attorney indicated that they were prepared
to present further evidence at the hearing regarding their claim for
compensatory damages. Upon review, we determine that had a hearing been
held, such evidence would have been provided. Therefore, we find that
the AJ's denial of compensatory damages was inappropriate and remand the
matter of compensatory damages back to the appropriate EEOC hearings unit.
As to the issue of attorney's fees and costs, on appeal, the Attorney
only contests the fee reduction. By federal regulation, the agency
is required to award attorney's fees for the successful processing of
an EEO complaint in accordance with existing case law and regulatory
standards. EEOC Regulation 29 C.F.R. � 1614.501(e)(1)(ii). To determine
the proper amount of the fee, a lodestar amount is reached by calculating
the number of hours reasonably expended by the attorney on the complaint
multiplied by a reasonable hourly rate. Blum v. Stenson, 465 U.S. 886
(1984); Hensley v. Eckerhart, 461 U.S. 424 (1983).
There is a strong presumption that the number of hours reasonably expended
multiplied by a reasonable hourly rate, the lodestar, represents
a reasonable fee, but this amount may be reduced or increased in
consideration of the degree of success, quality of representation, and
long delay caused by the agency. 29 C.F.R. � 1614.501(e)(2)(ii)(B). The
circumstances under which the lodestar may be adjusted are extremely
limited, and are set forth in EEO Management Directive 110 (MD 110)
(November 9, 1999). A fee award may be reduced: in cases of limited
success; where the quality of representation was poor; the attorney's
conduct resulted in undue delay or obstruction of the process; or where
settlement likely could have been reached much earlier, but for the
attorney's conduct. MD 110, at p. 11-7. The party seeking to adjust
the lodestar, either up or down, has the burden of justifying the
deviation. Id. at p. 11-8.
In this case, the Attorney did not denote his work for each claim and
specifically argued that complainant's claims were intertwined and
not easily separable. A review of the record does not support his
argument that the claims were intertwined. In particular, we note that
the complaint involved two distinct selections with different facts
surrounding them.<3> Therefore, we find that the AJ correctly reduced
the award by a percentage, to reflect that complainant did not prevail
on all claims presented. We discern no reason to alter the AJ's fifty
percent reduction. Accordingly, we find that the Attorney is entitled
to $7,515.01 as determined by the AJ.
Upon review of the record and statements on appeal, we affirm the agency's
final decision implementing the AJ's award on attorney's fees. We reverse
the agency's implementation of the AJ's decision on compensatory damages.
ORDER (C0900)
To the extent it has not already done so, the agency is ordered to take
the following remedial actions:
The agency shall, within ninety (90) calendar days from the date this
decision is final, promote complainant retroactively to the effective
date of the Selectee's promotion to the position of Intelligence
Operations Officer, GS-006-12, or a substantially equivalent position,
with back pay, interest on back pay, and with all benefits that he would
have been entitled to had he been selected for the position in question.
The agency shall pay the Attorney $7,515.01 in fees within thirty (30)
calendar days from the date this decision becomes final.
The agency shall consider taking disciplinary action against
the management officials identified as being responsible for the
discrimination found in claim (1). 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.
The issue of compensatory damages is REMANDED to the Hearings Unit of
the appropriate EEOC District Office. The agency is directed to submit
a copy of the complaint file to the EEOC Hearings Unit within fifteen
(15) calendar days of the date this decision becomes final. The agency
shall provide written notification to the Compliance Officer at the
address set forth below that complaint file have been transmitted to the
Hearings Unit. Thereafter, the Administrative Judge must be assigned
in an expeditious manner to further process the issue of compensatory
damages in accordance with the regulations.
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 United States Penitentiary in
Atlanta, Georgia, 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.
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
November 29, 2004
__________________
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. and the Age Discrimination
in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq. has
occurred at 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.
The Department of Justice, United States Penitentiary in Atlanta, Georgia,
supports and will comply with such Federal law and will not take action
against individuals because they have exercised their rights under law.
The Department of Justice, United States Penitentiary in Atlanta, Georgia,
has been ordered to remedy an employee affected by the Commission's
finding that he was discriminated against because of his prior EEO
activity, age, and race. As a remedy for the discrimination, the agency
was ordered, among other things, to retroactively promote the employee
to the GS-12 position, or substantially equivalent position; to provide
the employee with the appropriate benefits; and to pay attorney's fees.
The Department of Justice, United States Penitentiary in Atlanta,
Georgia, 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.
The Department of Justice, United States Penitentiary in Atlanta, Georgia,
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: _____________
1 Complainant filed prior EEO complaints alleging discrimination in
violation of Title VII.
2We note that neither compensatory damages nor attorney's fees are
available remedies under the ADEA. See Falks v. Department of Treasury,
EEOC Request No. 05960250 (September 5, 1996).
3 The record indicates that as to the selection raised in claim (1),
complainant made the Best Qualified List. The facts were different in
the selection raised in claim (2) in that complainant failed to make
the Best Qualified List.