0720070016
07-26-2007
Donzetta T. Lindsay, Complainant, v. R. James Nicholson, Secretary, Department of Veterans Affairs, Agency.
Donzetta T. Lindsay,
Complainant,
v.
R. James Nicholson,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 0720070016
Hearing No. 140-2006-00005X
Agency No. 200I03192005101144
DECISION
Following its November 8, 2006 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 rejection
of an EEOC Administrative Judge's (AJ) award of compensatory damages and
attorney's fees, pursuant to a finding of discrimination in violation
of Title VII of the Civil Rights Act of 1964 (Title VII), as amended,
42 U.S.C. � 2000e et seq. Specifically, the agency accepted the AJ's
finding that complainant was discriminated against due to her race and in
retaliation for prior EEO activity. However, the agency requests that
the Commission affirm its rejection of the relief ordered by the AJ as
regards compensatory damages and attorney's fees. As such, the agency
rejected that portion of the AJ's decision which awarded complainant
$50,000.00 in compensatory damages, and attorney's fees in the amount
of $25,757.41. For the following reasons, the Commission MODIFIES the
agency's final order.
BACKGROUND
At the time of events giving rise to this complaint, complainant was
employed by the agency as a Senior Veterans Service Representative,
GS-12, at its Regional Office in Columbia, South Carolina ("facility").
Complainant previously served as a GS-11 Coach of the Demand Assistance
team at the facility. The record reflects that her first performance
rating in that position was Successful; however, for the rating period of
September 2001 through January 28, 2002, she was rated as Unacceptable
in the critical elements of Management Accountability and Resource
Management. As the result of that rating, complainant was demoted to a
GS-9 Veterans Claims Examiner (VCE) position; subsequently, complainant
was returned to the VCE position at the GS-11 level. Complainant was
not returned to her Coach position as it had already been filled at
the time her demotion was cancelled. On January 2, 2003, complainant
filed an EEO complaint concerning her non-selection to the position of
Supervisory Veterans Service Representative, GS-11. The complainant was
resolved via a Settlement Agreement, whereby complainant was promoted
to the position of Senior Veterans Service Representative, GS-12.
On December 9, 2004, the agency issued a vacancy announcement for
the position of Supervisory Veterans Service Representative (VSR),
GS-996-13. Complainant submitted an application in response to the
vacancy announcement, and her application was forwarded to the Regional
Office Assistant Director (AD; White) for selection as a best-qualified
candidate. The AD made two (2) selections rather than one (1); both
selectees were White. Complainant then contacted an EEO Counselor and
filed a formal complaint on March 2, 2005.
At the conclusion of the investigation, complainant was provided 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 June 14, 2006, and issued
a decision on September 28, 2006. In her decision, the AJ initially found
that complainant proffered evidence which established that the agency's
articulated reasons for not selecting her for the Supervisory position
at issue were more likely than not pretextual in nature. As such, the AJ
found that complainant established discrimination on the bases of race and
retaliation when she was not selected for the Supervisory VSR position.
In addressing the issue of compensatory damages, the AJ noted the hearing
testimony of complainant as regards the effect of the non-selection on
her. The AJ noted that complainant testified to the stress that resulted
from the agency's conduct and that she suffered weight loss, became more
withdrawn and now does not trust people. Complainant also stated that she
does not interact as often with her co-workers or family. AJ's Decision
at 11. The AJ also referenced the testimony of complainant's sister
and husband, detailing their observations of complainant after she
learned of her non-selection for the Supervisory VSR position in 2005.
Complainant's sister stated that she observed complainant as becoming
nervous, suffering from stomach problems which caused her to lose weight,
becoming withdrawn and lacking energy. Complainant's husband testified
that after the non-selection, she became quiet, slept more and lacked
interest in seeing her friends or going out socially.
The AJ found that the agency proffered no evidence to rebut this
testimony, as thus the evidence established that complainant suffered
emotional harm directly attributable to her non-selection. As such, the
AJ found that complainant is entitled to an award of compensatory damages.
The AJ concluded that complainant was entitled to non-pecuniary damages
in the amount of $50,000.00. In reaching this amount, the AJ stated she
considered the nature and severity of complainant's emotional distress
and related symptoms, including emotional distress, upset and social
withdrawl.
Addressing the issue of attorney's fees, the AJ noted that complainant
submitted fee petitions dated August 30, 2006 and September 25, 2006,
claiming $26,699.50 in attorney's fees and costs. The fee petition based
its petition on $300.00 per hour for 60.65 hours for work by the primary
attorney involved in the case; $275.00 per hour for 21.90 hours of work
by another attorney; and a rate of $85.00 per hour for 29.20 hours by law
clerks of the law firm which represented complainant. The AJ noted that
the agency responded to complainant's attorney fee petition on September
27, 2006, disputing the fees claimed and alleging that complainant has
not established the market rate for Columbia, South Carolina. As such,
the agency alleged that complainant's fee petition was insufficient to
establish an appropriate lodestar. The agency also alleged that the fee
petition contains redundant charges and there are unnecessary charges
with regard to reviewing the agency's Motion for Summary Judgment.
The AJ noted the qualifications of complainant's primary counsel and
found their hourly rates requested ($300.00 and $275.00 per hour) were
reasonable given their experience. The AJ also found that the rate
of $85.00 an hour was reasonable for the law clerks of the law firm.
In determining the number of hours expended, the AJ initially found that
there were duplicative for review of the agency's Motion for Summary
Judgment, and excessive charges for research and drafting of a summary
judgment that was never submitted. As such, the amount of hours awarded
for work performed by the law clerks was reduced from 29.20 hours to 14.70
hours. The AJ then awarded complainant's primary attorney $300.00 for
60.65 hours of work for a total of $18,195.00; awarded the other partner
at the law firm $275.00 per hour for 21.90 hours of work, for a total
of $6,022.50; and the law firm's law clerks were to be compensated at a
rate of $85.00 per hour for 14.70 hours of work for a total of $1249.50.
The AJ also awarded costs in the full amount requested of $290.41, as the
agency did not object, for a total award of attorney's fees of $25,757.41.
AJ's Decision at 15. As other remedies, the AJ ordered the agency to:
(1) appoint complainant to the Supervisory VSR, GS-996-13, retroactive
to January 23, 2005; (2) determine the amount of back pay, with interest
and other benefits, due complainant for the period from January 23, 2005;
(3) post a notice that discrimination occurred at the agency's Regional
Office in Columbia, South Carolina; and (4) to provide EEO training to
those found to be responsible for the discrimination.
The agency subsequently issued a final order, which did not fully
implement the AJ's decision. As stated above, the agency accepted
the portion of the AJ's decision which found that complainant was
discriminated against on the bases of race and retaliation when she was
not selected for the Supervisory VSR position in 2005. However, the
agency rejected the AJ's award of compensatory damages in the amount of
$50,000.00, and attorney's fees and costs in the amount of $25,467.00.
The agency delayed payment of compensatory damages and attorney's fees
plus costs until after the appeal to the Commission was decided.
FINDINGS AND ANALYSIS
A. Compensatory Damages
Pursuant to section 102(a) of the Civil Rights Act of 1991, a complainant
who establishes his or her claim of unlawful discrimination may
receive, in addition to equitable remedies, compensatory damages for
past and future pecuniary losses (i.e., out of pocket expenses) and
non-pecuniary losses (e.g., pain and suffering, mental anguish). 42
U.S. C. � 1981a(b)(3). For an employer with more than 500 employees,
such as the agency, the limit of liability for future pecuniary and
non-pecuniary damages is $300,000. Id.
The particulars of what relief may be awarded, and what proof is necessary
to obtain that relief, are set forth in detail in EEOC Notice No. 915.002,
Compensatory and Punitive Damages Available Under Section 102 of the Civil
Rights Act of 1991 (July 14, 1992). Briefly stated, the complainant must
submit evidence to show that the agency's discriminatory conduct directly
or proximately caused the losses for which damages are sought. Id. at
11-12, 14; Rivera v. Department of the Navy, EEOC Appeal No. 01934157
(July 22, 1994). The amount awarded should reflect the extent to which
the agency's discriminatory action directly or proximately caused harm
to the complainant and the extent to which other factors may have played
a part. EEOC Notice No. N 915.002 at 11-12. The amount of non-pecuniary
damages should also reflect the nature and severity of the harm to the
complainant, and the duration or expected duration of the harm. Id. at
14.
In Carle v. Department of the Navy, the Commission explained that
"objective evidence" of non-pecuniary damages could include a statement
by the complainant explaining how he or she was affected by the
discrimination. EEOC Appeal No. 01922369 (January 5, 1993). Statements
from others, including family members, friends, and health care
providers could address the outward manifestations of the impact of the
discrimination on the complainant. Id. The complainant could also submit
documentation of medical or psychiatric treatment related to the effects
of the discrimination. Id. Non-pecuniary damages must be limited to the
sums necessary to compensate the injured party for the actual harm and
should take into account the severity of the harm and the length of the
time the injured party has suffered from the harm. Carpenter v. Department
of Agriculture, EEOC Appeal No. 01945652 (July 17, 1995).
Pursuant to the agency's appeal, the Commission must review whether
or not the AJ's award of non-pecuniary damages was appropriate.
The AJ determined that complainant was entitled to $50,000 based on the
agency's discriminatory non-selection for promotion in January of 2005.
Upon review, we find that this award is supported by the substantial
evidence of the record and is consistent with case precedent. See, e.g.,
Johnson v. Department of the Interior, EEOC Appeal No. 01961812 (June
18, 1998)(awarding $37,500 in non-pecuniary damages where complainant
provided reports from two physicians linking racial harassment with
complainant's problems including depression, dysthymia, and adjustment
disorder); Turner v. Department of the Interior, EEOC Appeal No. 01956390
(April 27, 1998) (providing $40,000 where discriminatory harassment caused
complainant to experience psychological trauma and physical injury with
permanent effects); Carpenter v. Department of Agriculture, EEOC Appeal
No. 01945652 (July 17, 1995) (awarding $75,000 in a failure to accommodate
case which resulted in emotional harm to complainant which damaged his
relationships with family and friends and reduced his quality of life,
as well as resulting in some physical manifestations such as a digestive
disorder); and Cavanaugh v. USPS, EEOC Appeal No. 07A20102 (November 12,
2003)(finding an AJ's non-pecuniary award of $50,000 appropriate based on
the agency's discriminatory non-selection). In determining the award,
the AJ relied on several factors, including the nature and severity of
complainant's emotional distress and related symptoms, the testimony
of complainant and her family members as well as the amounts awarded in
similar cases. Accordingly, we conclude that the amount of $50,000 is
appropriate.
B. Attorney's Fees and Costs
The Commission may award complainant reasonable attorney fees and other
costs incurred in the processing of a complaint regarding allegations
of discrimination in violation of Title VII. 29 C.F.R. � 1614.501(e). A
finding of discrimination raises a presumption of entitlement to an
award of attorney's fees. Id. Attorney's fees shall be paid for services
performed by an attorney after the filing of a written complaint. Id.
The agency, on appeal, argues that the AJ improperly determined that the
reasonable hourly fee for complainant's primary and secondary counsel
was $300.00 and $275.00, respectively. Further, the agency contends
that the reasonable hours expended should be reduced.
As to the amount determined by the AJ, an award of attorney's fees
is determined by calculating the lodestar, i.e., by multiplying a
reasonable hourly fee times a reasonable number of hours expended. Hensley
v. Eckerbart, 461 U.S. 424 (1983); 29 C.F.R. � 1614.501(e)(2)(ii)(B).
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 (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.
1. Reasonable Hourly Fees
Complainant's attorneys claimed fees for 60.65 hours of work by the
primary counsel at a rate of $300.00 per hour; 21.90 hours of work by the
secondary counsel at an hourly rate of $275.00; and 29.20 hours of work by
law clerks at an hourly rate of $85.00, for a total of $ 26,699.50. The
AJ found that the attorney's hourly rates were appropriate, given the
experience of counsel and the prevailing market rate of Columbia, South
Carolina. As previously argued before the AJ, the agency contests the
hourly rate stated by the primary and secondary counsel, arguing that a
rate in excess of $200.00 for work performed by counsel, or $40.00 per
hour for work performed by the law clerks would be inappropriate given the
legal market in Columbia. The agency contended that while counsel's law
firm was based on Charlotte, North Carolina, hourly rates in Columbia,
South Carolina should be applied in the instant case as that is where
the "locus of the case" occurred, i.e., the agency's Regional Office is
located in Columbia and the act of discrimination took place there.
Based on the submissions of counsel providing their hourly rate and
experience, we disagree with the agency's contentions. Rather, we
concur with the AJ's determination that the hourly rates requested
by the primary and secondary counsel, as well as the hourly rate for
the law clerks, were reasonable. As stated by complainant's counsel,
Charlotte and Columbia are in the same EEOC region, and are located
only 100 miles apart; thus, the hourly rates for counsel in these areas
would be substantially similar. Further, the AJ noted that the agency
provided no documentation that the hourly rate for counsel in Columbia was
substantially lower than it was for counsel in Charlotte. We note that
an affidavit submitted by counsel practicing in Columbia establishes that
the hourly rates requested by complainant's counsel was "reasonable and
consistent with the market for attorney fees in the Columbia and South
Carolina market place." Therefore, we agree with the AJ's finding that
a reasonable hourly rate for complainant's primary counsel is $300.00
per hour; a reasonable hourly rate for the secondary counsel is $275.00;
and a reasonable hourly rate for the firm's law clerks is $85.00.
2. Hours Expended
The AJ reduced the number of hours performed by law clerks from the
requested 29.20 to 14.70 3.5 hours based on the duplicative charges for
work performed. The AJ found that complainant's primary counsel was
entitled to compensation for the requested 60.65 hours of work performed.
In addition, the AJ found that complainant's secondary counsel was
entitled to compensation for 21.90 hours of work. We note that on appeal,
the agency has not challenged counsel's compensation for hours expended
on complainant's case and has only challenged the hourly rate requested.
Nor has the agency challenged costs requested by counsel in the amount
of $290.41.
3. Calculation of Attorney Fees
Hence, fees for 60.65 hours expended at $ 300.00 per hour, as well as
21.90 hours expended at $275.00 and 14.70 hours expended at $85.00 per
hour, plus $290.41 in costs equals $ 25,757.41. Accordingly, we find that
complainant's counsel is entitled to that amount in attorney's fees and
costs.
CONCLUSION
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 (D0403)
To the extent it has not already done so, the agency is ordered to take
the following remedial action:
1. Within thirty (30) calendar days of the date of this decision becomes
final, the agency shall appoint complainant to the position of Supervisory
Veterans Service Representative, GS-996-13, retroactive to January 23,
2005.
2. The agency shall determine the appropriate amount of back pay,
with interest, and other benefits due complainant, retroactive to
January 23, 2005, 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 after 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."
3. Within thirty (30) calendar days of the date of this decision is
final, the agency shall issue complainant a check for compensatory
damages in the amount of $50,000.00.
4. Within thirty (30) calendar days of the date this decision is final,
the agency shall issue complainant's counsel a check for fees and costs
in the amount of $25,757.41.
5. Within thirty (30) calendar days of the date this decision is final,
the agency shall consider taking disciplinary action against the Assistant
Director and Assistant Service Center Managers at the Regional Office
in Columbia, South Carolina, identified as being responsible for the
discriminatory action perpetrated against complainant. 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.
6. Within thirty (30) days of the date this decision is final, the
agency shall afford EEO training regarding discrimination in hiring
and retaliation for prior EEO activity to the Assistant Director and
Assistant Service Center Managers at the Regional Office in Columbia,
South Carolina.
POSTING ORDER (G0900)
The agency is ordered to post at its Regional Office in Columbia,
South Carolina, 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 (T0900)
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 (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
___7-26-07_______________
Date
2
0720070016
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
10
0720070016