closed0120112818
05-14-2014
Complainant, v. Eric K. Shinseki, Secretary, Department of Veterans Affairs, Agency.
Complainant,
v.
Eric K. Shinseki,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 0120112818
Hearing No. 480-2009-00435X
Agency No. 200P-0691-2009100121
DECISION
Complainant filed an appeal from the Agency's April 8, 2011, final order concerning her 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. The Commission deems the appeal timely and accepts it pursuant to 29 C.F.R. � 1614.405(a).
BACKGROUND
During the period at issue, Complainant worked as a Program Support Assistant at the Agency's facility in Los Angeles, California.
On December 17, 2008, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the basis of sex (female). By letter dated February 12, 2009, the Agency accepted Complainant's complaint for investigation. 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, and the AJ held a hearing on July 19-20, 2010, and issued a decision on March 7, 2011.
In that decision, the AJ found that Complainant was subjected to a discriminatory hostile work environment based on sex with regard to an incident that occurred on September 23, 2008.1 Based on the EEOC hearing testimony, as well as a decision by an administrative judge from the Merit Systems Protection Board (MSPB) pertaining to Complainant's removal,2 the EEOC AJ made the following determinations concerning the September 23, 2008 incident.
Complainant stated that she and her second-level supervisor ("S2") (male) were discussing a delay in her promotion. Complainant expressed her frustration to S2 regarding the delay and S2 replied that "if Complainant was struggling for money 'her mother should have taught her right.'" Complainant took S2's comment to mean that her mother did not teach her how to sell her body. Complainant told S2 not to disrespect her mother. S2 replied that he was not disrespecting Complainant's mother, but repeated the comment several more times. The AJ found Complainant's interpretation of S2's comment, implying prostitution, to be credible.
Complainant then became increasingly angry and rose out of her chair and faced S2, who was leaning against a credenza, and said, "don't disrespect my mother, you mother fucker." AJ Decision at 11. Complainant walked over to S2 and waved her index finger toward S2's face, saying, "I don't know who the fuck you [are] talking to. Id. Complainant's first level supervisor ("S1") (female) stepped in between Complainant and S2, and Complainant pushed S1 aside. Complainant stated, "you got me fucked up. I ain't no punk ass bitch." Id. S2 replied "get out of my face" and kept telling Complainant to "back up." Id. S2 then stood up and moved toward Complainant. Id. When S1 tried to block Complainant and S2 from touching one another, they all fell to the ground with Complainant landing on her back, S1 landing on top of Complainant, and S2 landing on top of both women face down. Id. at 12. S1 quickly slipped out between Complainant and S2. However, S2 remained on top of Complainant with a clenched fist. Id. Another employee grabbed S2's fist. Id.
The AJ made the following findings:
Complainant was initially the aggressor in the verbal altercation with [S2]. I also conclude that [S2] was an equal participant with Complainant because he persisted in repeating to her, "your mother should have taught you right" despite being aware that his comment was upsetting Complainant. However, once [S2] stood up, he became the aggressor in the incident. ..After [S2] stood up, and while Complainant pushed [S1] aside, [S2] stepped to the left around [S1] to move behind Complainant....Although Complainant argued that [S2] grabbed her neck and slammed her head back on the floor, the record does not support Complainant's assertions. Rather, the evidence reveals that [S2]'s physical contact with Complainant occurred when he tried to remove her finger from in front of his face, and the parties lost their equilibrium as [S1] tried to
keep them from assaulting one another. Nevertheless, the [AJ] concludes that, due to [S2's] height and weight, once he stood up to further engage Complainant, he became the physical aggressor in the altercation; and as her second level supervisor, he had the ultimate responsibility to prevent the situation from escalating. However, rather than diffusing the situation, [S2] continually taunted Complainant, cursed her, threatened to physically harm and/or kill her, and ultimately attempted to physically assault her, if another co-worker had not prevented him from striking Complainant. Moreover, even after Complainant became argumentative with [S2] a second time, instead of diffusing the situation, [S2] again taunted and cursed Complainant, charged toward her, and threatened to physically harm her.
AJ Decision at 11, 20.
The AJ ordered the Agency to take the following actions:
1. Pay complainant $75.00 in pecuniary damages and $10,000.00 in non-pecuniary damages.
2. In a separate decision dated January 12, 2011, by a different AJ, the Agency was ordered to pay $25,860.00 in attorney's fees and $1,839.75 in costs.
3. The Agency shall conduct a minimum of eight hours of mandatory training to all employees and management officials assigned to the MCCR Unit on the obligation and duties imposed by Title VII as it relates to sex-based hostile work environment.
4. Post a notice pertaining to the finding of discrimination for 60 days at the Agency's facility where the discrimination occurred in accordance with the paragraph below entitled "Posting Order."
The Agency subsequently issued a final order adopting the AJ's decision.
Complainant filed the instant appeal. On appeal, Complainant, through her attorney, asserts that she is only appealing the AJ's findings regarding the award of non-pecuniary damages, attorney's fees, and costs. Complainant requests that the Commission award her $150,000 in non-pecuniary damages and $51,720.00 in attorney's fees, and $2,427.25 for costs.
Complainant's attorney asserts that the facts of this case support a larger award in non-pecuniary damages. Complainant's attorney states that the AJ is punishing Complainant for her reaction to the hostile environment created by S2.
Regarding the attorney's fees, Complainant's attorney asserts that the five claims brought in her original complaint were related and not fractionable as they were all based on the same legal theory of a hostile work environment and involved the same individual.
Regarding costs, Complainant's attorney asserts, "the Supervisory AJ stated that the deposition costs for three depositions were reduced by half as they were already compensated by the MSPB. In fact, there was no claim for compensation for deposition costs in the MSPB proceeding. Furthermore deposition costs are not recoverable in MSPB proceedings (internal citations omitted)."
In response, the Agency requests that we affirm its final order.
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.
Non-pecuniary Compensatory Damages
To receive an award of compensatory damages, a complainant must demonstrate that he or she has been harmed as a result of the agency's discriminatory action; the extent, nature, and severity of the harm; and the duration or expected duration of the harm. Rivera v. Dep't of the Navy, EEOC Appeal No. 01934157 (July 22, 1994), req. for reconsideration denied, EEOC Request No. 05940927 (Dec. 11, 1995); Compensatory and Punitive Damages Available Under Section 102 of the Civil Rights Act of 1991, EEOC Notice No. 915.002 (July 14, 1992) (hereafter referred to as "notice"), at 11-12, 14.
Non-pecuniary damages must be limited to compensation for the actual harm suffered as a result of the Agency's discriminatory actions. Notice at 13. 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).
In the instant matter, Complainant testified that after the altercation, she became fearful of encountering S2. Hearing Transcript (Hr'g Tr.) at 46. She testified that she experienced nightmares and would awake in cold sweats. Id. Complainant's mother also testified to her reaction to the altercation at issue. She stated that Complainant was jittery, had more frequent headaches since the altercation, and was "always watching her back." Hr'g Tr. at 92-93. Complainant's sister also testified to Complainant's reaction to the altercation. Complainant's sister testified that Complainant was teary eyed, tired, and short tempered. Hr'g Tr. at 156-57.
After careful consideration of the record, the Commission finds that the AJ's award of $10,000.00 was insufficient and that Complainant is entitled to $15,000.00 in non-pecuniary compensatory damages. See e.g., Thompson v. U.S. Postal Serv., EEOC Appeal No. 0120100682 (Oct 21, 2011) ($15,000.00 in non-pecuniary damages awarded where harassment resulted in depression, isolation, and anxiety); Patterson v. Dep't of Agriculture, EEOC Appeal No. 01984574 (Jan. 10, 2001) ($15,000.00 non-pecuniary damages awarded to Complainant where discrimination resulted in anxiousness, sleeplessness, and isolation). We find that this amount is not monstrously excessive and takes into consideration the AJ's finding that while Complainant experienced anxiety, depression and insomnia as a result of the altercation at issue, a portion of Complainant's distress resulted from the alleged incidents that Complainant was not successful on and Complainant's removal which is not before the Commission.
Attorney's Fees
Title VII authorizes the award of reasonable attorney's fees, including for an attorney's processing of a compensatory damages claim. 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. Buckhannon Bd. and Care Home Inc. v. W. Va. Dept. 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. Davis v. Dep't of Transp., EEOC Request No. 05970101 (Feb. 4, 1999) (citing Hensley v. Eckerhart, 461 U.S. 427, 433 (1983)).
The fee award is ordinarily determined by multiplying a reasonable number of hours expended on the case by a reasonable hourly rate, also known as a "lodestar." See 29 C.F.R. � 1614.501(e)(2)(ii)(B); Bernard v. Dep't of Veterans Affairs, EEOC Appeal No. 01966861 (July 17, 1998). In determining the number of hours expended the Commission recognizes that the attorney "is not required to record in great detail the manner in which each minute of his time was expended." Id. However, the attorney does have the burden of identifying the subject matters which he spent his time by submitting sufficiently detailed and contemporaneous time records to ensure that the time spent was accurately recorded. Id.
On appeal, Complainant asserts that she should receive the entire amount of attorney's fees requested because the five claims in her complaint were not fractionable. We find that there is substantial evidence in the record to support the AJ's award of $25,860.00 in attorney's fees. The AJ reasoned "I find that while there were five identified issues, they were not equal in complexity...The issue upon which Complainant prevailed, in fact, was the most important of all issues and represented approximately one half of the pre-hearing preparation and testimony at [the] hearing." AJ Decision at 43. Upon review of the record, we find that the AJ properly reduced the requested attorney's fees by fifty percent.
Costs
Complainant's attorney requests that the Agency pay $2,427.25 in costs. Complainant's attorney asserts that the AJ improperly deducted $587.50 from the requested costs. Specifically, Complainant's attorney states that there was no claim for compensation for deposition costs at the MSPB proceeding regarding Complainant's removal claim and that deposition costs are not recoverable in MSPB proceedings.
Regarding the issue of costs, the EEOC AJ noted that, "Complainant's attorney provided adequate support for his request for reimbursement for costs in the amount of $2,427.25, less amounts for deposition costs already compensated by MSPB [half of depositions for three named Agency employees-$587.50]." However, a review of the MSPB decision on attorney's fees indicates that Complainant was awarded $40,960.00 in attorney's fees. Nixon v. Dep't of Veterans Affairs, MSPB No. SF-0752-09-0683-A-1 (April 3, 2010). The MSPB decision does not reflect that Complainant was awarded costs.3 Id. Based on the foregoing, we find that Complainant is entitled to $2,427.25 in costs.
ORDER
To the extent it has not already done so, the Agency shall take the following actions within 60 calendar days from the date this decision becomes final:
1. Pay complainant $75.00 in pecuniary damages and $15,000.00 in non-pecuniary damages.
2. Pay $25,860.00 in attorney's fees and $2,427.25 in costs.
3. The Agency shall conduct a minimum of eight hours of mandatory training to all employees and management officials assigned to the MCCR Unit on the obligation and duties imposed by Title VII as it relates to sex-based hostile work environment.
4. Post a notice of the finding of discrimination for 60 days at the Agency's facility where the discrimination occurred in accordance with the paragraph entitled "Posting Order."
POSTING ORDER (G0610)
The Agency is ordered to post at its Los Angeles, CA 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 (H0610)
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 (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 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 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 (T0610)
This decision affirms the Agency's final decision/action in part, but it also requires the Agency to continue its administrative processing of a portion of your complaint. 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 on both that portion of your complaint which the Commission has affirmed and that portion of the complaint which has been remanded for continued administrative processing. 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 your appeal with the Commission, until such time as the Agency issues its final decision on your complaint. 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
May 14, 2014
Date
1 Complainant raised other allegations of discriminatory harassment in her complaint. However, the AJ concluded she did not prove discrimination with regard to these incidents.
2 The record reflects that the Agency issued both Complainant and S2 a notice of proposed removal for their conduct during the September 23, 2008 altercation. S2 resigned in lieu of removal. Complainant was removed from her position on May 28, 2009. She challenged her removal with the MSPB, and her removal was mitigated to a 60-day time served suspension. See Nixon v. Dep't of Veterans Affairs, MSPB No. SF-0752-09-0683-I1 (Oct. 7, 2009).
3 The MSPB decision reflects that the MSPB AJ reduced the requested amount of attorney's fees by fifty percent for the time spent on the three depositions at issue but does not reflect that the MSPB awarded costs for the depositions. Nixon v. Dep't of Veterans Affairs, MSPB No. SF-0752-09-0683-A-1 (April 3, 2010)
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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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