01a33363
12-14-2004
Janet Davis, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Janet Davis v. United States Postal Service
01A33363
December 14, 2004
.
Janet Davis,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A33363
Agency No. 4E-800-0233-99
DECISION
INTRODUCTION
Complainant timely initiated an appeal from a final agency decision
(FAD) concerning her 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. Sec. 2000e et seq. The appeal is accepted pursuant
BACKGROUND
This matter, which has an extended procedural history, has been before the
Commission before. In Davis v. United States Postal Service, EEOC Appeal
No.01A01352 (January 23, 2003) we summarized that history as follows:
In August, 1991, complainant, a training technician at the agency's Postal
Education and Development Center, General Mail Facility, Denver, Colorado,
was transferred to the agency's Communications Department. Starting
in September, 1991, complainant's co-worker began hugging and
kissing complainant, who objected to and rejected the co-worker's
behavior. Complainant did not initially report the co-worker's behavior
to her superiors. On one occasion, complainant's supervisor observed
the co-worker hug complainant. The supervisor told the co-worker to stop
the behavior. According to the complainant, the co-worker continued the
same kissing and hugging behavior with complainant. On March 2, 1992,
the co-worker grabbed complainant by the hips and rubbed his pelvis
against her. Complainant reported this event to the EEO manager, who urged
complainant to file a formal complaint. According to complainant, the EEO
Office took complainant's statement, but did not further pursue the claim,
despite knowledge of reports of the co-worker's sexual harassment made
by other women in the agency. Complainant asserted that she believed
that she had satisfied all administrative prerequisites for filing a
formal complaint. The co-worker harassed complainant twice after she
reported his behavior. One of these events arose because the supervisor
who previously observed and told the co-worker to stop the harassing
behavior later assigned complainant to ride in a car with the co-worker,
who harassed complainant during the car ride.
According to the agency, effective March 6, 1992, the co-worker
was returned to his former position at the agency's North Pecos
Station. According to the complainant, the co-worker continued to work
with complainant and continued his harassing behavior until early April,
1992, when he was transferred away from the Communications Department.
On June 2, 1995, complainant filed a civil action in U.S. District Court,
alleging, among other things, sexual harassment discrimination. In a
summary judgment opinion, the court found that complainant's claims were
untimely filed, and in any event, because complainant was satisfied with
her job, she could not show that her work environment was intolerable
(hostile). On appeal, the circuit court reversed, holding among other
things, that as a matter of law, a genuine issue of material fact
existed about whether the complaint was timely filed, and a claimant
who is satisfied with a job can nonetheless subjectively perceive the
work environment to be hostile. Davis v. United States Postal Service,
142 F.3d at 1334, 1341 (10th Cir. 1998). On May 6, 1998, the circuit
court remanded the case for further proceedings before the district court.
On complainant's motion, the district court remanded the matter to the
agency on December 31, 1998, for investigation and final decision. On
remand, the agency investigated complainant's claim of sexual harassment,
and, on July 8, 1999, issued a report of investigation. [FN1] The
report of investigation does not contain any record of the March, 1992
EEO counseling, nor does it show what further action was taken by the
agency. The investigation consists wholly of the district court trial
transcripts. On October 22, 1999, the agency issued a decision finding
the sexual harassment claim was not timely brought, and that nonetheless,
the complainant failed to prove discrimination on the basis of sexual
harassment.
Complainant appealed that decision to the Commission. In Davis v. United
States Postal Service, EEOC Appeal No. 01A01352 (January 23, 2003) we
reversed the final agency decision, finding that complainant had filed
a timely formal administrative complaint. On the merits, we found
that complainant had been subjected to a hostile work environment.
We remanded the matter to the agency for, inter alia, a determination
of complainant's entitlement to compensatory damages and an award of
attorney's fees. On remand the agency determined that complainant should
be awarded $5000 in compensatory damages but failed to make any finding
regarding complainant's entitlement to attorney's fees. Complainant
has now appealed to us again, contending that the compensatory damages
awarded her are inadequate and seeking an award of attorney's fees in
excess of $100,000.
ANALYSIS AND FINDINGS
Legal Services Related To Federal Court Litigation
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. Sec. 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. West Virginia 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. Department of
Transportation, EEOC Request No. 05970101 (February 4, 1999) (citing
Hensley v. Eckerhart, 461 U.S. 427, 433 (1983)).
Complainant's counsel seeks reimbursement for attorney fees incurred in
connection with the prosecution of complainant's claim in federal District
Court and in the United States Court of Appeal for the 10th Circuit.
The agency opposes reimbursement for those services on the ground that
the Commission's regulations authorize an award of attorney's fees only
for services rendered in connection with administrative EEO proceeding.
The agency's position is well taken.
Commission precedent of long standing holds that attorney's fees will
generally not be awarded for legal services rendered in fora other than
the Commission. See Cole v. United States Postal Service. EEOC Request
No. 05910450 (February 1997) It is true that the Commission recognized
an exception to that general rule in Hall v. Department of Air Force,
EEOC Request No. 05880561 (May 1, 1990) where it held that legal services
in connection with the filing of a civil action could be reimbursable
if a complainant could show that the filing served as a �catalyst� that
prompted the agency to take action favorable to complainant. However,
the Supreme Court's subsequent decision in Buckhannon Bd. and Care
Home Inc, supra, rejected the catalyst theory of attorney fees awards,
holding that in order to be considered a prevailing party entitled to
an award, a plaintiff must have obtained some court approved relief,
such as a judgment or consent decree. Since complainant did not receive
any such relief in the District Court or the Court of Appeals, she was
not a prevailing party in those proceedings.
Legal Services Related To Administrative EEO Complaint
Complainant is entitled to reimbursement for fees incurred in connection
with the processing of the administrative complaint. In the context
of this case, that process began, for all practical purposes, when the
District Court granted complainant's motion to remand the case to the
agency on December 31, 1998 and ended when the Commission issued its
decision on January 23, 2003 reversing the agency's final decision.
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. Sec. 1614.501(e)(2)(ii)(B);
Bernard v. Department 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 on which he spent his time by submitting sufficiently detailed
and contemporaneous time records to ensure that the time spent was
accurately recorded. Id.
Further, a reasonable fee award may be assessed in light of factors such
as: (1) the time required (versus time expended) to complete the legal
work; (2) novelty or difficulty of the issues; (3) the requisite skill
to properly handle the case; (4) the degree to which counsel is precluded
from taking other cases; (5) the relief sought and results obtained; and
(6) the nature and length of the attorney-client relationship. See Cerny
v. Department of the Army, EEOC Request No. 05930899 (October 19, 1994).
Complainant is only entitled to an award for time reasonably expended.
It does not always follow that the amount of time actually expended is
the amount of time reasonably expended. Elvin v. Department of Labor,
EEOC Request No. 01943425 (August 31, 1995). Rather, "billing judgment"
is an important component in fee setting, and hours that would not be
properly billed to a private client are also not properly billed to
the agency pursuant to a successful EEO claim. Id. Counsel for the
prevailing party should make a "good faith effort to exclude from a fee
request hours that are excessive, redundant or otherwise unnecessary."
See Bernard, EEOC Appeal No. 01966861.
In the instant case, complainant's counsel has submitted evidence
to support the hourly rates he is seeking to charge for himself and
co-counsel. The agency has raised no objection to the claimed hourly
rates. Complainant's counsel has also provided a reasonably detailed
listing of the legal services performed on complainant's behalf.
The agency has raised no objection to reimbursement for any of the
legal services performed in 1999, the year in which the bulk of the
legal work on the administrative EEO process was performed. Therefore,
as summarized below, all of the legal services performed in 1999 for
which complainant's counsel seeks compensation will be reimbursed at
the hourly rates requested.
Hourly Rate Hours Subtotal Total
$200 66.15 $13,230.00
$185 12.9 $2,386.50
$75 .4 $30
$15,646.50
For the period January 1, 2000 through January 23, 2003, the date of
the Commission's decision on complainant's appeal, the agency objects
to reimbursement for any legal services, contending that no hours were
reasonably expended because complainant's appeal was pending before
the Commission and there was no need for any legal work to be done.
We do not agree. Even during the pendency of an appeal, there may be a
continuing obligation on an attorney to keep his client informed of the
status of the case or take other actions to protect his client's interest.
Legal services of that nature are reimbursable. We have reviewed the
fee petition and determined that services rendered on the following
dates and in the following amounts should be reimbursed:
Counsel
Date Amount Hourly Rate Subtotals Total
9/14/00 .8 hours $230 $184.00
9/15/00 1.3 hours $230 $299.00
1/14/01 .5 hours $255 $127.50
4/7/01 .6 hours $255 $153.00
11/21/01 .2 hours $255 $ 51.00
10/22/02 .8 hours $255 $204.00
$1,018.50
Co-Counsel
9/18/00 .35 hours $200 $70.00
$1,718.50
On the basis of the foregoing, complainant is entitled to an award of
attorney's fees in the amount of $17,365.00 for the period ending January
23, 2003.<1>
Costs
Reasonable costs incurred by the prevailing complainant in the course of
litigating an EEO claim are compensable. Hafiz v. Department of Defense,
EEOC Petition No. 04960021 (July 11, 1997). These may include such
items as mileage, postage, telephone calls, photocopying, and any other
reasonable expenses incurred in connection with the complaint. Carver
v. United States Postal Service, EEOC Petition No. 04950004 (June 19,
1996). It is complainant's burden to prove that she incurred such
costs, by providing documentation to support a claim for costs, such
as bills for copying, telephone bills, or receipts for mailings. Hafiz,
supra. Although complainant's attorney lists several costs, and the amount
incurred, the record contains no documentation to support complainant's
claim. Accordingly, we deny complainant's claim for costs.
Compensatory Damages
When discrimination is found, the agency must provide the complainant
with a remedy that constitutes full, make whole relief to restore her
as nearly as possible to the position she would have occupied absent
the discrimination. See, e.g., Franks v. Bowman Transportation Co.,
424 U.S. 747, 764 (1976); Albemarle Paper Co. v. Moody, 422 U.S. 405,
418-19 (1975); Adesanya v. Postal Service, EEOC Appeal No. 01933395 (July
21, 1994). Pursuant to section 102(a) of the Civil Rights Act of 1991,
a complainant who establishes unlawful intentional discrimination under
either Title VII of the Civil Rights Act of 1964 (Title VII), as amended,
42 U.S.C. Sec. 2000e et seq. or Section 501 of the Rehabilitation
Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. Sec. 791 et
seq. may receive 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) as part of this make whole relief.
42 U.S.C. Sec. 1981a(b)(3). In West v. Gibson, 119 S.Ct. 1906 (1999),
the Supreme Court held that Congress afforded the Commission the authority
to award compensatory damages in the administrative process. 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.
42 U.S.C. Sec. 1981a(b)(3)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. Department of
the Navy, EEOC Appeal No. 01934157 (July 22, 1994), req. for recons. den.,
EEOC Request No. 05940927 (December 11, 1995); Enforcement Guidance:
Compensatory and Punitive Damages Available Under Section 102 of the Civil
Rights Act of 1991, EEOC Notice No. 915.002 (July 14, 1992), at 11-12, 14.
Compensatory damages may be awarded for the past pecuniary losses,
future pecuniary losses, and non-pecuniary losses which are directly or
proximately caused by the agency's discriminatory conduct. EEOC Notice
No. 915.002 at 8. Objective evidence of compensatory damages can include
statements from the complainant concerning his or her emotional pain or
suffering, inconvenience, mental anguish, loss of enjoyment of life,
injury to professional standing, injury to character or reputation,
injury to credit standing, loss of health, and any other nonpecuniary
losses that are incurred as a result of the discriminatory conduct.
Statements from others, including family members, friends, health
care providers, other counselors (including clergy) could address the
outward manifestations or physical consequences of emotional distress,
including sleeplessness, anxiety, stress, depression, marital strain,
humiliation, emotional distress, loss of self-esteem, excessive fatigue,
or a nervous breakdown. See Lawrence v. United States Postal Service,
EEOC Appeal No. 01952288 (April 18, 1996), citing Carle v. Department
of the Navy, EEOC Appeal No. 01922369 (January 5, 1993).
Evidence from a health care provider or other expert is not a mandatory
prerequisite for recovery of compensatory damages for emotional harm.
A complainant's own testimony, along with the circumstances of a
particular case, can suffice to sustain his or her burden in this regard.
The more inherently degrading or humiliating the defendant's action is,
the more reasonable it is to infer that a person would suffer humiliation
or distress from that action. The absence of supporting evidence,
however, may affect the amount of damages appropriate in specific cases.
Lawrence, EEOC Appeal No. 01952288.
Non-Pecuniary Compensatory Damages
There is no precise formula for determining the amount of damages for
non-pecuniary losses, except that the award should reflect the nature
and severity of the harm and the duration or expected duration of the
harm. Loving v. Department of the Treasury, EEOC Appeal No. 01955789
(August 29, 1997); Rountree v. Department of Agriculture, EEOC
Appeal No. 01941906 (July 7, 1995). We note that for a proper award
of non-pecuniary damages, 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 Ward-Jenkins v. Department of the Interior, EEOC
Appeal No. 01961483 (March 4, 1999).
In this case, complainant adduced evidence from several health care
providers who testified regarding the impact on her of the sexual
harassment to which she had been subjected. A psychiatrist averred
as follows:
My current diagnosis of [complainant] is depression (major depression,
single episode with psychotic features).
[Complainant] remains depressed as evidenced by lowered mood, decreased
energy, increase irritability, social withdrawal, decreased trust,
decreased libido, and impaired sleep . . .
I have treated [complainant] with supportive psychotherapy and
anti-depressant medication. Please note that the emotional trauma
resulting from the retaliation and harassment which she experienced at
work has made it very difficult to trust anyone . . . It is my opinion
that [complainant] absolutely requires continued psychotherapy and
anti-dpressent medication to maintain her current level of functioning.
Complainant averred that as a result of the harassment she was, for
several years, �a virtual prisoner in [her] own home� because of her fear
of contact with others. She experienced �panic attacks� on visits to the
grocery store. Because of her depression, complainant's relationship
with her young daughter also suffered.
Based on the evidence reviewed above, we find that complainant proved
that she experienced severe emotional distress which was caused by the
harassment. The record reveals that complainant's suffering started in
early 1992 and persisted until at least 2003. The Commission finds the
$5000 awarded by the agency to be inadequate. An award of $20,000.00
in non- pecuniary damages would be appropriate. This amount takes into
account the severity of the harm suffered, and is consistent with
prior Commission precedent. See Money v. United States Department
of Agriculture, EEOC Appeal No. 01974494 (May 24, 2000) ($20,000.00
where complainant suffered from depression and anxiety for 6-7 months,
followed by a 4-5 month period of Major Depression, due to the agency's
discrimination); Minardi v. USPS, EEOC Appeal No. 01981955 (October 3,
2000) ($20,000.00 where statements from complainant's friends established
he suffered depression, stress, and a loss of patience, self-control
and self-esteem). We point out that non-pecuniary compensatory damages
are intended to remedy a harm and not to punish the agency for its
discriminatory actions. See Memphis Community School Dist. v. Stachura,
477 U.S. 299, 311-12 (1986) (stating that a compensatory damages
determination must be based on the actual harm sustained and not the
facts of the underlying case). Therefore, we conclude that complainant
shall be awarded $20,000.00 in damages because the amount is adequate,
and not excessive, to compensate complainant for her suffering.
Pecuniary Compensatory Damages
Complainant also seeks an award of damages to compensate her economic
losses, including medical expenses, resulting from the harassment to
which she was subjected. Complainant bears the burden of proving that
such losses were proximately caused by the illegal discrimination
and proving the amount of such costs by producing documentation
of out-of-pocket expenses. As the agency points out, although in
the course of the supplemental investigation complainant was asked
to produce documentation of her claimed losses, she failed to do so.
We conclude that complainant did not bear the burden of proof on this
issue and decline to award pecuniary damages in any amount.
CONCLUSION
For the foregoing reasons, after a careful review of the record, including
complainant's contentions on appeal, the agency's response, and arguments
and evidence not specifically addressed in this decision, we MODIFY the
agency's final decision and order that complainant be awarded $17,365.00
in attorney's fees and $20,000.00 in compensatory damages.
ORDER (C0900)
The agency is ordered to take the following remedial action:
Within 30 days of this order becoming final, the agency shall pay to
complainant $17,365.00 in attorney's fees and $20,000.00 in compensatory
damages
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.
ATTORNEY'S FEES (H0900)
If complainant has been represented by an attorney (as defined by 29
C.F.R. Sec. 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. Sec. 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. Sec. 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. Sec. 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. Secs. 1614.407, 1614.408, and 29 C.F.R. Sec. 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. Secs. 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. Sec. 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. Sec. 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. Sec. 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. Sec. 1614.604(c).
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (R0900)
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 (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. Sec. 2000e et seq.;
the Rehabilitation Act of 1973, as amended, 29 U.S.C. Secs. 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
December 14, 2004
__________________
Date
1Complainant may be entitled to an additional
award of attorney's fees for legal services rendered after January 23,
2003. Complainant may submit a fee petition to the agency in accordance
with the order below.