Emerson P.1 Complainant,v.Robert Wilkie, Secretary, Department of Veterans Affairs, Agency.

Equal Employment Opportunity Commission

Sep 22, 2020

2019002327 (E.E.O.C. Sep. 22, 2020)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Emerson P.1 Complainant, v. Robert Wilkie, Secretary, Department of Veterans Affairs, Agency. Appeal No. 2019002327 Agency No. 200J06102012101697 DECISION In a September 10, 2013 decision, the Agency determined that it had discriminated against Complainant in violation of Title VII of the Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. § 2000e et seq., and that Complainant was entitled to a number of remedies. Following a lengthy procedural background, the Agency ultimately issued a damages decision on December 3, 2018. On January 3, 2019, Complainant filed an appeal with the Equal Employment Opportunity Commission (EEOC or Commission), alleging that the Agency was not in compliance with its final decision from the Agency’s December 3, 2018 damages decision for full enforcement of the original September 10, 2013 decision. This appeal is accepted pursuant to 29 C.F.R. §§ 1614.401(e) and 1614.504. ISSUE PRESENTED The issue presented is whether the Agency properly determined Complainant’s entitlement to back pay, compensatory damages, and attorneys’ fees and costs. 1 This case has been randomly assigned a pseudonym which will replace Complainant’s name when the decision is published to non-parties and the Commission’s website. 2019002327 2 BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Supervisory Biomedical Engineer in the Engineering Department of the Northern Indiana Health Care System in Marion, Indiana. On May 21, 2012, Complainant filed an EEO complaint alleging that the Agency subjected him to a hostile work environment based on his national origin (Greek and Arab) and religion (Muslim) when he was constructively discharged when he resigned from his position effective February 10, 2012. Upon reviewing the complaint file, the Agency determined that the complaint included both mixed and non-mixed claims. Specifically, the complaint included a hostile work environment claim which is a non-mixed claim appealable to the EEOC and a constructive discharge claim which is a mixed claim appealable to the Merit Systems Protection Board (MSPB). Complainant elected to have a hearing on his non-mixed claim and his remaining claim of a constructive discharge was subsequently forwarded to Agency for an immediate final agency decision (FAD). The September 10, 2013 FAD concluded that Complainant proved that the Agency subjected him to discrimination as alleged, and determined that the Agency was required to make certain equitable relief available to Complainant. Specifically, the Agency awarded Complainant: 1) reinstatement and backpay along with other attendant benefits; 2) written commitment to cease engaging in unlawful employment practice; 3) expungement of records regarding Complainant’s resignation; 4) compensatory damages; 5) attorneys’ fees and costs; 6) training required of the responsible management officials; 6) consideration of disciplinary action against said RMOs; and 7) posting of a notice of the finding of discrimination. On November 12, 2013, the Agency offered to reinstate Complainant to his former position at his previous salary. The Agency also requested assistance to calculate back pay owed to Complainant. Last, the Agency noted that Complainant’s resignation was removed from his personnel file. Shortly after, Complainant informed the Agency that reinstatement was not desirable and inquired as to front pay in lieu of reinstatement. The Agency rejected front pay as an option. On November 15, 2013, the Agency issued a Compliance Report. The Compliance Report included documentation that an offer of reinstatement was tendered to Complainant; that a posting notice regarding the violation was posted; that the responsible management officials attended required EEO training; that disciplinary action was considered with the issuance of a proposed suspension; that records had been expunged; and that calculation of back pay had been initated. The Agency noted that back pay and interest would be calculated for the time between February 10, 2012 and November 8, 2013.2 2 The appropriate date should have been November 13, 2013, when Complainant declined the reinstatement, which the Agency acknowledged in its appeal response. 2019002327 3 Also, on November 15, 2013, Complainant proceeded to file a civil action (CV13-8474SS). On December 2, 2013, the Agency filed a Motion to Dismiss Complainant’s case because of the civil action. On January 13, 2014, the AJ issued an Order of Dismissal on the non-mixed hostile work environment claim based on the civil action. On January 29, 2014, the Agency subsequently issued its final order implementing the AJ’s dismissal. On March 7, 2014, Complainant appealed that January 29, 2014 FAD to the Commission. While the matter was pending with the Commission, on October 21, 2015, Complainant submitted a Motion to Dismiss the civil action in order to pursue a settlement with the Agency. On December 2, 2015, the Agency ordered a damages investigation based on the civil action dismissal. On July 20, 2016, the Commission determined that the Agency’s January 29, 2014 order implementing the AJ’s dismissal was appropriate and affirmed that Agency’s decision. Emerson P. v. Dep’t of Veteran Affairs, EEOC Appeal No. 0120141536 (July 20, 2016). On August 17, 2016, the damages investigation concluded and awaited a final Agency decision regarding damages. On December 21, 2017, Complainant refiled a civil action (Civil Action 2:17-cv-09139-JAK-SS) in federal court in California. On November 2, 2018, the Agency and Complainant came to an agreement to reinstate the administrative processing of his complaint once Complainant submitted a dismissal request of his civil action. That same day, Complainant submitted a dismissal request of his civil action. On November 26, 2018, the Agency issued a memorandum noting that the case was originally closed due to Complainant’s civil action. However, it noted that both parties agreed, once again, to continue the administrative processing of his complaint. On December 3, 2018, a damages decision was issued by Agency. The December 3, 2018 decision noted that Complainant had previously requested $6,000 in pecuniary damages. The Agency agreed and paid Complainant $6,000 in pecuniary damages.3 Complainant had previously requested $296,000 in non-pecuniary damages. Based on similar cases, the Agency determined that Complainant should be awarded $80,000 for non-pecuniary damages. On December 4, 2018, the Agency attempted to obtain information from Complainant’s counsel to process payment for the award of $86,000 for pecuniary and non-pecuniary damages and to obtain additional information in order to appropriately calculate back pay. The Agency followed up with Counsel on December 4, 11, and 14, 2018, and January 3, 2019, to no avail. CONTENTIONS ON APPEAL In his appeal, Complainant, through Counsel, asserted that the Agency’s compensatory damages decision did not address his concerns regarding back pay, front pay, attorney’s fees, and costs. Counsel noted that reinstatement was a remedy that was awarded, but never expressly offered to Complainant. Moreover, Counsel argued that reinstatement would not be in Complainant’s best interest, and that front pay would be the acceptable remedy instead. Counsel stated that 3 The Commission could not locate evidence of this being paid to Complainant. 2019002327 4 Complainant was appealing the December 3, 2018 award only insofar as front pay, back pay, attorney’s fees, and costs, were not specifically awarded and/or addressed. In response, the Agency asserted that Complainant misunderstood the process to obtain relief ordered by the original FAD. The Agency also noted that it had repeatedly reached out to Complainant’s counsel regarding back pay, compensatory damages, and attorneys’ fees calculations but has failed to receive any responses. The Agency stated that it reached out on December 4, 11, and 14, 2018, and on January 3, 2019, and received no responses from Complainant’s Counsel. Regarding front pay, the Agency asserted that front pay was never awarded, and was not appropriate in the instant matter. The Agency requested that the Commission deny the appeal. STANDARD OF REVIEW As this is an appeal from a decision issued without a hearing, pursuant to 29 C.F.R. § 1614.110(b), the Agency's decision is subject to de novo review by the Commission. 29 C.F.R. § 1614.405(a). See Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614, (EEO MD- 110) at Chapter 9, § VI.A. (Aug. 5, 2015) (explaining that the de novo standard of review “requires that the Commission examine the record without regard to the factual and legal determinations of the previous decision maker,” and that EEOC “review the documents, statements, and testimony of record, including any timely and relevant submissions of the parties, and . . . issue its decision based on the Commission’s own assessment of the record and its interpretation of the law”). ANALYSIS AND FINDINGS Back Pay The purpose of a back-pay award is to restore to a complainant the income he would have otherwise earned but for the discrimination. Albemarle Paper Co. v. Moody, 442 U.S. 405, 418- 19 (1975); Davis v. U.S. Postal Serv., EEOC Petition No. 04900010 (Nov. 29, 1990). Gross back pay should include all forms of compensation and must reflect fluctuations in working time, overtime rates, penalty overtime, Sunday premium and night work, changing rate of pay, transfers, promotions, and privileges of employment to which the petitioner would have been entitled but for the discrimination. Ulloa v. U.S. Postal Serv., EEOC Petition No. 04A30025 (Aug. 3, 2004) (citing Allen v. Dep't of the Air Force, EEOC Petition No. 04940006 (May 31, 1996)). In computing the net amount of back pay payable, an agency is required to offset any outside earnings received by an employee for other employment undertaken to replace the employment from which the employee was separated. See 5 C.F.R. § 550.805(e)(1). Specifically, § 706(g) of Title VII, 42 U.S.C. § 2000e-5(g), provides that “interim earnings or amounts earnable with reasonable diligence by the person or persons discriminated against shall operate to reduce the backpay otherwise allowable.” In this case, Complainant was constructively discharged on February 10, 2012. The record demonstrated that on November 12, 2013, the Agency offered to reinstate Complainant to his 2019002327 5 previous position, but he declined. Therefore, the backpay calculations must be for between February 10, 2012 through November 13, 2013. We note that the Agency’s September 10, 2013 FAD specifically provided for this back-pay award, and that it had sought information from Complainant’s Counsel regarding interim earnings in order to calculate the appropriate back pay. However, Complainant’s Counsel did not provide the requested documentation. Counsel’s own lack of response has precipitated the delay in Complainant receiving his back pay. In order to appropriately calculate the back pay, Complainant must comply with the Agency’s request for documentation. Front Pay Regarding Complainant’s request for front pay, this was not previously awarded in the September 2013 FAD, and Complainant’s counsel had ample opportunity to appeal that FAD to request such a remedy. As such, the time to request for front pay has passed. Additionally, we note that Counsel asserted that reinstatement was never offered to Complainant. The record demonstrates otherwise. The record includes e-mail documentation between Complainant and the Agency expressly demonstrating that reinstatement was offered and declined by Complainant. Moreover, reinstatement in general is preferred to an award of front pay. Romeo v. Dep't of the Air Force, EEOC Appeal No. 01921636 (July 13, 1992). Front pay is a form of equitable relief that compensates an individual when reinstatement is not possible in certain limited circumstances. The Commission has identified three circumstances where front pay may be awarded in lieu of reinstatement: (1) where no position is available; (2) where a subsequent working relationship between the parties would be antagonistic; or (3) where the employer has a record of long-term resistance to anti-discrimination efforts. Tyler v. U.S. Postal Serv., EEOC Request No. 05970340 (Feb. 1, 1998). Awards of front pay imply that the complainant is able to work but cannot do so because of circumstances external to the complainant. Goetze v. Dep't of the Navy, EEOC Appeal No. 01991530 (Aug. 22, 2001). The record demonstrated that, had Complainant accepted reinstatement, he would have gone back into his previous position at the appropriate rate and would not have worked with any of the previously responsible management officials. After a review of the record, we find that the Agency did not err when it did not award Complainant front pay. Compensatory Damages To receive an award of compensatory damages, Complainant must demonstrate that he 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 (EEOC Notice No. 915.002) (July 14, 1992), at 11-12, 14. Compensatory damages may be awarded for past and future pecuniary losses (i.e., out-of-pocket expenses) and non-pecuniary losses (e.g., pain and suffering, mental anguish) 2019002327 6 which are directly or proximately caused by the agency's discriminatory conduct. EEOC Notice No. 915.002 at 8. 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. Id. 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, see Goetze v. Dep't. of the Navy, EEOC Appeal No. 01991530 (Aug. 23, 2001). In Carle v. Dep’t 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 (Jan. 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. 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. Dep’t of Agric., EEOC Appeal No. 01945652 (July 17, 1995). Here, the Agency awarded Complainant $80,000 in non-pecuniary damages and $6,000 in pecuniary damages. We agree with the Agency that the awards were appropriate. We note the Commission has found other non-pecuniary awards in similar situations to be appropriate as well. See Ricardo K. v. Dep’t of Justice, EEOC Appeal No. 07020170030 (Oct. 12, 2017) (complainant awarded $75,000 after experiencing emotional distress anxiety, Post Traumatic Stress Disorder, depression, humiliation, & embarrassment. He also took sick leave to alleviate the pressure he was under, avoided social events, & he was still struggling with the trauma three years after the harassment); see also Ileana H. v. Dep’t of Justice, EEOC Appeal No. 0720170016 (Apr. 21, 2017) (complainant awarded $75,000 after being subjected to a hostile work environment based on race and reprisal and experienced fear of economic security, mental anguish, physical disorders, and emotional distress). Based on the record, we find no reason to disturb this determination. After a review of the record, we find that the Agency, unsuccessfully but repeatedly, reached out to Complainant’s Counsel to process payment for compensatory damages. Counsel must comply with the Agency’s request regarding the processing of payment. Attorneys’ Fees and Costs The Commission's regulations authorize the award of reasonable attorney's fees and costs to a prevailing complainant. 29 C.F.R. § 1614.501(e); see also EEO MD-110, at Chap. 11, § I. Fee awards are typically calculated by multiplying the number of hours reasonably expended times a reasonable hourly rate, an amount also known as a lodestar. See 29 C.F.R. §1614.501(e)(ii)(B); Blum v. Stenson, 465 U.S. 886, 899 (1984); Hensley v. Eckerhart, 461 U.S. 424, 435 (1983). 2019002327 7 All hours reasonably spent in processing the complaint are compensable, but the number of hours should not include excessive, redundant or otherwise unnecessary hours. EEO MD-110 at Chap. 11, § VI. F. A reasonable hourly rate is based on prevailing market rates in the relevant community for attorneys of similar experience in similar cases. Id. An application for attorney's fees must include a verified statement of attorney's fees accompanied by an affidavit executed by the attorney of record itemizing the attorney's charges for legal services. Id. 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 MD-110, at Chap. 11, §VI. F. 1. 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 (emphasis added) or obstruction of the process; or where settlement likely could have been reached much earlier, but for the attorney’s conduct. Id. The party seeking to adjust the lodestar, either up or down, has the burden of justifying the deviation. Id. at Chap. 11, § VI. F. 2. The Agency’s final decision dated September 10, 2013, provided Complainant the ability to seek attorneys’ fees and costs. It also specifically stated that failure to provide requested documentary for such fees and costs would result in the denial of the claim. Based on the record, it appeared that Complainant’s counsel failed to timely submit such documentation. However, given this particular matter, we remand the matter concerning attorneys’ fees and costs to the Agency for proper processing. Complainant’s Counsel is reminded of the importance of timely submissions. CONCLUSION Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we REMAND the matter to the Agency in order to comply with the ORDER below. Complainant’s Counsel is reminded to comply with any Agency request made in order to timely process Complainant’s payments. ORDER To the extent that the Agency has not already done so, the Agency is ordered to: 1. Within sixty (60) calendar days of the date on which this decision is issued, pay Complainant $80,000 in non-pecuniary damages; 2. Within sixty (60) calendar days of the date on which this decision is issued, pay Complainant $6,000 in pecuniary damages; 3. Within sixty (60) calendar days of the date on which this decision is issued, calculate the back pay and interest, as well as any tax consequences, owed to Complainant. 2019002327 8 The Agency shall provide a copy of these calculations to Complainant. If there is still a dispute regarding the exact amount of back pay and/or benefits, the Agency shall issue a check to the Complainant for the undisputed amount within sixty (60) calendar days of the date the Agency determines the amount it believes to be due. The Complainant may petition for enforcement or clarification of the amount in dispute. The petition for clarification or enforcement must be filed with the Compliance Officer, at the address referenced in the statement entitled “Implementation of the Commission's Decision.” 4. As to the issue of attorney's fees and costs, process Complainant’s entitlement to an award. Complainant, through counsel, shall submit a request for attorney's fees and costs within thirty (30) calendar days of the date this decision is issued. No later than sixty (60) days after the Agency's receipt of the attorney's fees statement and supporting affidavit, the Agency shall issue a final agency decision addressing the issues of attorney's fees and costs. The Agency is further directed to submit a report of compliance in digital format as provided in the statement entitled “Implementation of the Commission's Decision.” The report shall be submitted via the Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). ATTORNEY'S FEES (H1016) If Complainant has been represented by an attorney (as defined by 29 C.F.R. § 1614.501(e)(1)(iii)), 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 the date this decision was issued. 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 (K0719) Under 29 C.F.R. § 1614.405(c) and § 1614.502, compliance with the Commission’s corrective action is mandatory. Within seven (7) calendar days of the completion of each ordered corrective action, the Agency shall submit via the Federal Sector EEO Portal (FedSEP) supporting documents in the digital format required by the Commission, referencing the compliance docket number under which compliance was being monitored. Once all compliance is complete, the Agency shall submit via FedSEP a final compliance report in the digital format required by the Commission. See 29 C.F.R. § 1614.403(g). The Agency’s final report must contain supporting documentation when previously not uploaded, and the Agency must send a copy of all submissions to the Complainant and his/her representative. 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 2019002327 9 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. Failure by an agency to either file a compliance report or implement any of the orders set forth in this decision, without good cause shown, may result in the referral of this matter to the Office of Special Counsel pursuant to 29 C.F.R. § 1614.503(f) for enforcement by that agency. STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0617) 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. A party shall have twenty (20) calendar days of receipt of another party’s timely request for reconsideration in which to submit a brief or statement in opposition. See 29 C.F.R. § 1614.405; Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at Chap. 9 § VII.B (Aug. 5, 2015). All requests and arguments must be submitted to the Director, Office of Federal Operations, Equal Employment Opportunity Commission. Complainant’s request may be submitted via regular mail to P.O. Box 77960, Washington, DC 20013, or by certified mail to 131 M Street, NE, Washington, DC 20507. 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 agency’s request must be submitted in digital format via the EEOC’s Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). The request or opposition must also include proof of service on the other party. 2019002327 10 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 (R0610) This is a decision requiring the Agency to continue its administrative processing of your complaint. However, if you wish to file a civil action, you have the right to file such action in an appropriate United States District Court within ninety (90) calendar days from the date that you receive this decision. 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 filed your appeal with the Commission. 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. Filing a civil action will terminate the administrative processing of your complaint. RIGHT TO REQUEST COUNSEL (Z0815) If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may request permission from the court to proceed with the civil action without paying these fees or costs. Similarly, if you cannot afford an attorney to represent you in the civil action, you may request the court to appoint an attorney for you. You must submit the requests for waiver of court costs or appointment of an attorney directly to the court, not the Commission. The court has the sole discretion to grant or deny these types of requests. Such requests do not alter the time limits for filing a civil action (please read the paragraph titled Complainant’s Right to File a Civil Action for the specific time limits). FOR THE COMMISSION: ______________________________ Carlton M. Hadden, Director Office of Federal Operations September 22, 2020 Date