01A52869
09-07-2006
Lori A. Hedgepeth, Complainant, v. Dirk Kempthorne, Secretary, Department of the Interior, (National Park Service), Agency.
Lori A. Hedgepeth,
Complainant,
v.
Dirk Kempthorne,
Secretary,
Department of the Interior,
(National Park Service),
Agency.
Appeal No. 01A52869
Agency No. FNP03016
DECISION
On March 14, 2005, complainant filed an appeal from the agency's final
decision concerning her application for compensatory damages and attorneys
fees. The appeal is deemed timely and is accepted pursuant to 29 C.F.R.
� 1614.405(a). For the following reasons, the Commission MODIFIES the
agency's final decision.
BACKGROUND
The procedural history of the instant case is as follows: complainant filed
a complaint alleging disability discrimination when she was denied a
reasonable accommodation for her spastic paraplegia. Following the
agency's investigation, the agency issued a final decision (FAD) on May 14,
2004 finding that complainant was a qualified individual with a disability
and that agency management did not effectively engage in the interactive
process with complainant during the period between December 2001 and June
2002. As such, the FAD found that the agency failed to provide a
reasonable accommodation for her disability during the period at issue.
The record reflects that, among other remedies, the FAD ordered the agency
to obtain evidence concerning complainant's claim for compensatory damages
and attorney's fees. Complainant was requested, through her
representative, to provide medical and other documentation and information
to support her compensatory damages claim and attorney's fees. Upon
submission of the requested information to the agency, the agency issued a
supplemental decision on March 15, 2005 regarding compensatory damages and
attorney's fees, based on information provided by complainant and evidence
in the administrative record.
In the decision, the agency noted that complainant requested $300,000.00 in
non-pecuniary damages for emotional distress, as well as $2,914.26 in
pecuniary damages for medical expenses, laboratory tests, cost of gasoline
and the cost of a wheel chair. In addition, complainant sought 274.45
hours in leave restoration.[1] The agency considered the circumstances
surrounding the acts of discrimination, and noted that complainant alleged
that she suffered post-traumatic stress disorder and anxiety, profound
depression with suicidal tendency, fatigue, inability to sleep, frequent
crying and fear that she would lose her job for a period of about 2 years
and 5 months. The decision noted that complainant advised agency
management of her disability on November 27, 2001 and she made requests for
reasonable accommodation on December 27, 2001. However, the decision noted
that the agency did not engage in the interactive process with complainant
until June 4, 2002. As such, the decision found that the agency denied
complainant's reasonable accommodation request for a period of almost seven
(7) months, rather than the 29 months alleged by complainant. The decision
noted that complainant's medical condition which for which she requested
the accommodation (spastic paraplegia) was due to a genetic abnormality and
was not due to her work. However, the decision noted that the condition
was likely to be progressive and she could not perform certain work-related
functions. In addition, the decision noted that emotional pain or stress
could aggravate the underlying genetic condition or its progress, with
several witnesses testifying that complainant's overall physical condition
had deteriorated since the events in question and improved since her
disability had been accommodated by the agency.
The decision found that complainant was entitled to non-pecuniary
compensatory damages in the amount of $10,000.00. In so finding, the
decision noted that the amount took into account the severity and duration
of the harm done to complainant by not being timely accommodated as well as
the agency's repeated failure to accommodate her in a timely manner. While
the decision noted that the damages were meant to compensate complainant
for the aggravation of her illness, the injury did not render her totally
incapacitated either for work or personal life. In addition, the decision
awarded complainant the amount of $2,198.63 in pecuniary damages. In so
finding, the decision noted that complainant failed to provide
documentation for her cost of wheel chair in the amount of $565.00 and
other expenses. The decision also noted that complainant has not requested
future pecuniary damages and thus no future pecuniary damages were awarded.
Considering complainant's request for attorney's fees, the decision noted
that complainant requested the amount of $15,872.00, for 102.40 hours of
work at an hourly fee of $155.00. The decision disallowed 28 requested
hours as they were pre-complaint services rendered prior to complainant's
filing of the EEO complaint, and awarded complainant $11,532.00 for a total
of 74.4 hours at the requested hourly rate.
In her appeal, complainant disagreed with the decision's finding that she
was "under duress" for six months. Complainant alleged that while her
Division Chief met with her in June 2002, this was more than six (6) months
after she had filed her verbal request for reasonable accommodation in
November 2001. According to complainant, the Information Desk and employee
entrance located at her primary worksite were not made minimally disability
and wheelchair accessible until April/May 2003.
ANALYSIS AND FINDINGS
I. Compensatory Damages
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. � 2000e
et seq. or Section 501 of the Rehabilitation Act of 1973 (Rehabilitation
Act), as amended, 29 U.S.C. � 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. � 1981a(b)(3). In West v. Gibson, 527 U.S.
212 (1999), the Supreme Court held that the Commission has the authority to
award compensatory damages in the federal sector EEO process.
The particulars of what relief may be awarded, and what proof is necessary
to obtain that relief, are set forth in detail in EEOC's Enforcement
Guidance, Compensatory and Punitive Damages Available Under Section 102 of
the Civil Rights Act of 1991 (July 14, 1992) (Enforcement Guidance).
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. Guidance 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.
Addressing the issue of compensatory damages, we find that complainant's
request for $300,000.00 in non-pecuniary damages is excessive. We find,
however, that an award of $10,000.00 is sufficient to compensate
complainant for her non-pecuniary losses. Non-pecuniary compensatory
damages are designed to remedy 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). An award of $10,000.00 is not "monstrously excessive"
standing alone, is not the product of passion or prejudice, and is
consistent with the amount awarded in similar cases. See generally,
McCleese v. USPS, EEOC Appeal No. 01A32993 (April 22, 2004)(award of
$7,500.00 where complainant, due to the denial of an accommodation,
suffered, among other things, pain to his knee); Pitchford v. USPS, EEOC
Appeal No. 01A23409 (July 28, 2003)(award of $7,000 in non-pecuniary and
$50.00 in pecuniary damages where complainant, due to the denial of an
accommodation, experienced, among other things, an exacerbation of his
medical condition, pain, and headaches); and Hughes v. USPS, EEOC Appeal
No. 01A14868 (February 11, 2003)(award of $7,000 where complainant, due to
the denial of an accommodation, experienced emotional harm and physical
pain). In the instant case, we concur with the decision's finding that
complainant suffered stress and other conditions as the result of the
agency's failure to accommodate her over a several month period, but the
stress could also have been caused by other factors in her life. In
addition, the record indicates that the agency's inaction may have
aggravated complainant's condition, but was not its primary cause and her
condition would likely have progressed even without the acts of
discrimination.
Further, we concur with the award of $2,198.63 in pecuniary damages. We
find that the decision properly found that as complainant failed to provide
documentation for certain submitted expenses, these expenses could not be
included in the award of pecuniary damages. As found in the agency's
decision, complainant failed to provide evidence for the cost of her wheel
chair ($565.00) or that the need for the wheel chair was due to the
agency's acts of discrimination. In addition, we concur with the
decision's finding that complainant failed to provide the requested
receipts or cancelled checks for proof of medication she was prescribed
during the period the discrimination occurred, and thus she could not be
compensated for these expenses. Agency's Decision at 13.
II. Attorney's Fees
By federal regulation, the agency is required to award attorney's fees for
the successful processing of an EEO complaint that alleged discrimination
under Title VII of the Civil Rights Act and the Rehabilitation Act. EEOC
Regulation 29 C.F.R. � 1614.501(e)(1)(ii). To determine the proper amount
of the fee, a lodestar amount is reached by calculating the number of hours
reasonably expended by the attorney on the complaint multiplied by a
reasonable hourly rate. Blum v. Stenson, 465 U.S. 886 (1984); Hensley v.
Eckerhart, 461 U.S. 424 (1983). The attorney requesting the fee award has
the burden of proving, by specific evidence, his or her entitlement to the
requested amount of attorney's fees and costs in the matter. Copeland v.
Marshall, 641 F.2d 880, 892 (D.C. Cir. 1983).
With regard to the fees authorized for complainant's counsel, we note that
while the agency's decision awarded most of the requested fees; however, it
disallowed all 28 hours sought for pre-complaint services. The Commission
notes that, with certain exceptions, agencies are not required to pay
attorney's fees for services performed during the pre-complaint process. 29
C.F.R. � 1614.501(e)(1)(iv). In the present case, we find that 8 hours are
reasonable for counsel's services prior to the date that the formal
complaint was filed. This amount reflects the Commission's determination,
based on the complexity of the case, that 8 hours is a reasonable amount of
time to compensate counsel for services performed in determining whether to
formally represent complainant. As such, we will award complainant an
additional $1,240.00 for legal services. The total amount for attorney's
fees and associated costs to be awarded to complainant will be $12,772.00.
CONCLUSION
Accordingly, the agency's Decision is modified. The agency will comply
with the order below.
ORDER (D0900)
The agency, within 60 calendar days of the date of this decision becoming
final, is ordered to take the following remedial action:
1. To the extent it has not already done so, the agency shall pay
complainant reasonable attorneys fees and costs in the amount of
$12,772.00.
2. To the extent it has not already done so, the agency shall pay
complainant $2,198.63 in pecuniary damages and $10,000.00 in non-pecuniary
damages.
3. 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 evidence that the corrective actions
have been implemented.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0900)
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)(Supp. V 1993). 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 (S0900)
You have the right to file a civil action in an appropriate United States
District Court within ninety (90) calendar days from the date that you
receive this decision. If you file a civil action, you must name as the
defendant in the complaint the person who is the official agency head or
department head, identifying that person by his or her full name and
official title. Failure to do so may result in the dismissal of your case
in court. "Agency" or "department" means the national organization, and
not the local office, facility or department in which you work. If you file
a request to reconsider and also file a civil action, filing a civil action
will terminate the administrative processing of your complaint.
RIGHT TO REQUEST COUNSEL (Z1199)
If you decide to file a civil action, and if you do not have or cannot
afford the services of an attorney, you may request that the Court appoint
an attorney to represent you and that the Court permit you to file the
action without payment of fees, costs, or other security. See Title VII of
the Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e et seq.; the
Rehabilitation Act of 1973, as amended, 29 U.S.C. �� 791, 794(c). The
grant or denial of the request is within the sole discretion of the Court.
Filing a request for an attorney does not extend your time in which to file
a civil action. Both the request and the civil action must be filed within
the time limits as stated in the paragraph above ("Right to File A Civil
Action").
FOR THE COMMISSION:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
____9-7-06______________
Date
-----------------------
[1] The agency noted in its decision that complainant requested
reimbursement of annual and sick leave for leave used during the period
from November 2002 to March 2004. The decision noted that this leave
restoration was being requested for time after the agency accommodated
complainant's disability. Further, the decision noted that complainant did
not stipulate how and why this leave was used or how it connected to the
agency's discrimination. Decision at 8. Further, the decision noted that
while complainant did not get the exact accommodations she requested, she
did receive several accommodations which were sufficient to allow her to
perform her position. Id. We note that complainant has not challenged the
decision's findings regarding reimbursement of annual and sick leave on
appeal.