01A01872_01A02727
12-27-2001
Marianne Costello, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, (Northeast Area), Agency.
Marianne Costello v. United States Postal Service
01A01872; 01A02727
December 27, 2001
.
Marianne Costello,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
(Northeast Area),
Agency.
Appeal Nos. 01A01872; 01A02727
Agency No. 4B-028-1072-94
Hearing No. 160-95-8238X
DECISION
Complainant timely initiated an appeal from two final agency decisions
concerning her entitlement to compensatory damages and attorney's fees
and costs. Complainant initially filed a formal EEO complaint on July 1,
1994 alleging that she was subjected to a hostile work environment on
the basis of her sex (female) and that she was retaliated against for
prior protected activity arising under Title VII of the Civil Rights
Act of 1964 (Title VII), as amended, 42 U.S.C. � 2000e et seq., when on
March 24, 1994, she was involuntarily transferred from the Wayland Square
facility to the East Side Annex.<1> In Costello v. United States Postal
Service, EEOC Appeal No. 01965397 (May 15, 1998), request to reconsider
denied, EEOC Request No. 05980845 (September 30, 1999), the Commission
affirmed an EEOC Administrative Judge's findings that: (1) complainant
was not subjected to a hostile work environment on the basis of her sex;
and (2) the involuntary transfer was motivated by retaliatory animus.
These appeals are consolidated and accepted for the Commission's de novo
review pursuant to 29 C.F.R. � 1614.405. For the reasons set forth
below, the agency's decision on compensatory damages is modified, and
the agency's decision on attorney's fees and costs is affirmed.
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 this agency, the limit of liability for non-pecuniary and future
pecuniary damages is $300,000.00. Id. 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) (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.
Complainant made the following claim: (1) $16,305.88 for past
pecuniary expenses; (2) $10,597.16 for future pecuniary expenses; and
(3) $65,000.00 for non-pecuniary damages, for a total of $91,903.04.
In support of her claim, complainant states that she has been receiving
treatment in the form of therapy and medication since 1993 as a result
of the agency's actions and inactions, including but not limited to:
(1) the harassment at work; (2) being cornered by her supervisor; (3)
being involuntarily transferred after complaining about her supervisor's
conduct; and (4) the agency's refusal to offer her a job. In its final
decision on compensatory damages, the agency found that complainant was
not entitled to any damages because she failed to establish the requisite
nexus between the agency's retaliatory action and the damages sought.
Specifically, the agency found that complainant attributed the harm she
experienced to the alleged hostile work environment and the conduct of
her supervisor, rather than to the involuntary transfer.
Initially we note that complainant was receiving treatment for depression,
anxiety, and Post Traumatic Stress Disorder before the agency retaliated
against her. The Commission applies the principle that �a tortfeasor
takes its victims as it finds them.� Wallis v. United States Postal
Service, EEOC Appeal No. 01950510 (November 13, 1995) (quoting Williamson
v. Handy Button Machine Co., 817 F.2d 1290, 1295 (7th Cir. 1987)).
The Commission also applies two exceptions to this general rule. First,
when a complainant has a pre-existing condition, the agency is liable
only for the additional harm or aggravation caused by the discrimination.
Second, if the complainant's pre-existing condition inevitably would have
worsened, the agency is entitled to a reduction in damages reflecting
the extent to which the condition would have worsened even absent the
discrimination, the burden of proof being on the agency to establish
the extent of this entitlement. Wallis, EEOC Appeal No. 01950510
(citing Maurer v. United States, 668 F.2d 98 (2d Cir. 1981); Finlay
v. United States Postal Service, EEOC Appeal No. 01942985 (April 29,
1997). The Commission notes, however, that complainant is entitled to
recover damages only for injury, or additional injury, caused by the
discriminatory action. Terrell v. Department. of Housing and Urban
Development, EEOC Appeal No. 01961030 (October 25, 1996); EEOC Notice
No. N 915.002 at 12.
Upon review of the record in its entirety, we find that the agency erred
when it determined that complainant failed to establish any connection
between the involuntarily transfer and the damages she incurred.
The record establishes that the involuntary transfer caused complainant
to feel betrayed and helpless, emotions which aggravated her already
precarious emotional health. Accordingly, we find that complainant
is entitled to some compensatory damages. However, the amount due to
complainant is a small fraction of the total she requested because the
record also clearly establishes that complainant attributed the majority
of her suffering to the behavior of her supervisor. Since complainant
failed to meet her burden of proving that she was subjected to a hostile
work environment based on sex, the agency is only liable for the harm
caused by its retaliatory action.
Past Pecuniary Damages
Comprising complainant's request for past pecuniary damages are payments
made for therapy, medication, dental bills, health and dental insurance,
telephone calls for job searches and to her attorney, express mail charges
regarding documentation of her damages, mileage to and from therapists and
dues paid to the Chamber of Commerce in order to secure health insurance.
We are not persuaded by the evidence of record that the involuntary
transfer was a direct or even proximate cause of complainant's decision
to stop working. Thus the agency is not liable for insurance premiums,
dental bills, telephone calls regarding job searches or dues paid to
the Chamber of Commerce. Moreover, the evidence of record establishes
that the involuntary transfer was one of at least four reasons that
complainant sought emotional counseling for conditions she experienced
prior to the agency's actions. Accordingly, of the $16,305.88 complainant
requested for past pecuniary damages, the Commission finds that an award
of $2,000.00 is appropriate. In reaching this conclusion, we find that to
assume that a larger percentage of complainant's past pecuniary expenses
were due to the agency's retaliation would be purely speculative.
Future Pecuniary Damages
Comprising complainant's request for future pecuniary damages are
payments intended for delinquent taxes, therapy, mileage to and from
therapy, health insurance premiums and dues for the Chamber of Commerce.
Whether or not the agency retaliates against complainant, complainant
is still required to pay her taxes, and as noted above, it cannot be
said that �but for� the agency's retaliation, complainant would not
have stopped working. Accordingly, the agency is not liable for her
health insurance premiums, Chamber of Commerce dues, taxes, or any
penalties complainant incurred as a result of her delinquency. Also in
accordance with our finding above, since the involuntary transfer was one
of at least four reasons that complainant sought emotional counseling
for conditions she experienced prior to the agency's actions, we find
that an award of $1,300.00 for future therapy expenses is sufficient
to compensate complainant for the agency's retaliatory action. Again,
to assume that a larger percentage of complainant's future expenses
were due to the agency's retaliation would be purely speculative.
Non-Pecuniary Damages
Non-pecuniary compensatory damages are designed to remedy a harm, not to
punish the agency for its discriminatory actions. See Memphis Community
School Dist. v. Stachura, 477 U.S. 299, 311-12 (1986). Non-pecuniary
damages are available to compensate the injured party for actual harm,
even where the harm is intangible. Carter v. Duncan-Higgins, Ltd., 727
F.2d 1225 (D.C. Cir. 1984). Emotional harm will not be presumed simply
because the complainant is a victim of discrimination. See Guidance at 5.
The existence, nature, and severity of emotional harm must be proved. Id.
The method for computing non-pecuniary damages should typically be based
on a consideration of the severity and duration of harm. Carpenter
v. Department of Agriculture, EEOC Appeal No. 01945652 (July 17, 1995);
Guidance at 8. 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)
(citing Cygnar v. City of Chicago, 865 F.2d 827, 848 (7th Cir. 1989)).
In support of her request for a compensatory damage award of $65,000.00,
complainant declares that as a result of the agency's actions and
inactions, including the retaliatory transfer, she has experienced
the following emotions and physical discomfort for over six years:
intense helplessness; betrayal; fear; anxiety; rage; hatred; anger;
low self esteem; lack of confidence; panic attacks; erratic sleep;
emotional paralysis; weight fluctuation; headaches; nervous stomach;
and a weakened immune system. The Commission finds that this evidence,
which is supported by medical documentation from various physicians, is
sufficient to establish that complainant's emotional harm was significant
and severe. However, it is also clear that the involuntary transfer
was only one of the many workplace-related causes for her suffering.
We note that the Commission has awarded compensatory damages in cases
somewhat similar to complainant's case in terms of the harm sustained.
In Hull v. Department of Veterans Affairs, EEOC Appeal No. 01951441
(September 18, 1998), the Commission awarded $12,000.00 in non-pecuniary
damages based on complainant's testimony of emotional distress due to
retaliatory harassment. In Roundtree v. Department of Agriculture,
EEOC Appeal No. 01941906 (July 7, 1995), the Commission awarded
$8,000.00 in non-pecuniary damages where medical evidence testimony was
provided regarding complainant's emotional distress, but the majority
of complainant's emotional problems were caused by factors other than
the discrimination, and in Cooper v. United States Postal Service, EEOC
Appeal No. 01972655 (June 25, 1998), the Commission awarded $8,000.00
in non-pecuniary damages where medical evidence testimony was provided
regarding various disorders related to a discriminatory reassignment
including stress, anxiety, depression and physical problems.
After analyzing the evidence which establishes the harm sustained by
complainant and upon consideration of damage awards reached in comparable
cases, the Commission finds that complainant is entitled to an award of
non-pecuniary damages in the amount of $10,000.00. We find this case
analogous to the above-referenced cases with respect to the nature,
severity and duration of the harm. Finally, we note that this award is
not motivated by passion or prejudice, is not "monstrously excessive"
standing alone, and is consistent with the amounts awarded in similar
cases. See Cygnar, 865 F.2d at 848.
In conclusion, the agency's final decision on damages is modified, and
we find that complainant is entitled to $3,300.00 in pecuniary damages
and $10,000.00 in non-pecuniary damages for a total compensatory damage
award of $13,300.00. We decline to find that complainant is entitled
to interest on this award since interest is only appropriate when an
agency excessively delays compliance with a final decision. See McCann
v. Department of the Air Force, EEOC Appeal No. 01971851 (October 23,
1998), petition for enforcement granted, EEOC Petition No. 04990041
(October 20, 2000).
Attorney's Fees and Costs
The Commission may award complainant reasonable attorney fees and other
costs incurred in the processing of a complainant 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.
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. Eckerhart, 461 U.S. 424 (1983); 29 C.F.R. �
1614.501(e)(2)(ii)(B). �There is a strong presumption that this amount
represents the reasonable fee.� 29 C.F.R. � 1614.501(e)(2)(ii)(B).
A reasonable hourly fee is the prevailing market rate in the relevant
community. Blum v. Stenson, 465 U.S. 886 (1984). A petition for fees
and costs must take the form of the verified statement required by the
Commission's regulations at 29 C.F.R. � 1614.501(e)(2)(i).
Complainant submitted a fee petition on October 14, 1999 requesting
$34,085.19 plus interest for fees and costs. The agency did not contest
that the reasonableness of a $200.00 hourly rate. However, the agency
awarded complainant $17,042.60 with no interest. In support of this
decision, the agency found that since complainant only prevailed on
one of two distinct claims, a 50% reduction in her fees was appropriate
and that an interest payment was inappropriate since the agency was not
responsible for any delay in the processing of the instant complaint.
Although complainant appealed this decision, she did not file a statement
setting forth why she believed the agency's decision should be reversed.
The fact that the complainant does not prevail on every aspect of
her complaint does not automatically justify a reduction in the hours
expended where the claims are intertwined, and it would be impossible
to segregate the hours involved in each claim. However, attorney's
fees cannot be recovered for work on unsuccessful claims. Hensley,
461 U.S. at 433. Courts have held that fee applicants should exclude
time expended on "truly fractionable" claims or issues on which they
did not prevail. See National Association of Concerned Veterans (NACV)
v. Secretary of Defense, 675 F.2d 1319, 1337, n.13 (D.C. Cir. 1982).
Claims are fractionable or unrelated when they involve "distinctly
different claims for relief that are based on different facts and legal
theories." Hensley, 461 U.S. at 434-35. Thus, "work on an unsuccessful
claim cannot be deemed to have been expended in pursuit of the ultimate
result achieved." Id. at 435.
The Commission finds that the record fails to support a finding that the
fees incurred for work performed in prosecuting the claim of retaliation
were inextricably intertwined with the work performed prosecuting the
claim of sex based harassment. We also note that the two claims were not
based on related legal theories. Id. For these reasons, we agree with
the agency's decision to reduce the lodestar. See McGinnis v. Department
of Defense, EEOC Request No. 05920150 (July 15, 1992); Quinn v. United
States Postal Service, EEOC Appeal No. 01923186 (February 5, 1993).
However, the Commission is not persuaded that the two claims involved
such an uncommon core of facts or that the hours spent on work performed
were so excessive as to warrant reducing the award by less than 75%
of the lodestar figure. See EEOC Management Directive 110, November 9,
1999, 11-8. Therefore, we find that complainant is entitled to $25,564.00
in attorney's fees and costs.
ORDER
Within thirty days from the date this decision becomes final, the agency
shall pay complainant $13,300.00 in compensatory damages; and
Within thirty days from the date this decision becomes final, to the
extent it has not already done so, the agency shall tender to complainant
$25,564.00 in attorney's fees and costs.
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 of the
agency's payments to complainant.
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 decisions 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
December 27, 2001
__________________
Date
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days after it was mailed. I certify
that this decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
__________________
Date
______________________________
1 The facilities, located in Providence, Rhode Island, were approximately
one mile apart.