Pamala L.,1 Complainant,v.Megan J. Brennan, Postmaster General, United States Postal Service (Capital Metro Area), Agency.Download PDFEqual Employment Opportunity CommissionSep 27, 20190120181511 (E.E.O.C. Sep. 27, 2019) Copy Citation U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Pamala L.,1 Complainant, v. Megan J. Brennan, Postmaster General, United States Postal Service (Capital Metro Area), Agency. Appeal No. 0120181511 Hearing No. 430-2014-00055X Agency No. 4K-230-0195-13 DECISION On March 28, 2018 and March 30, 2018, Complainant filed appeals with the Equal Employment Opportunity Commission (EEOC or Commission), pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s March 12, 2018 and March 15, 2018 final decisions addressing her entitlement to compensatory damages and attorneys’ fees concerning her equal employment opportunity (EEO) complaint alleging employment discrimination in violation of Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq. As the matters at issue here involve related events, we are exercising our discretion, pursuant to 29 C.F.R. § 1614.606, to consolidate Complainant's two appeals together for adjudication in the instant decision. For the following reasons, the Commission MODIFIES the Agency's final decisions. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Mail Processing Clerk, PS-06, at the Agency’s Post Office in Crewe, Virginia. On September 3, 2013, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the basis of disability (lumbar strain/sprain, lumbar herniated nucleus pulposus, and lumbar degenerative disease) when, on July 11, 2013, management denied her requests for 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. 0120181511 2 accommodation, including modifying the front counter; providing an ergonomic chair; and permitting Complainant to work a continuous eight-hour shift. At the conclusion of the investigation into the allegations, the Agency provided Complainant with a copy of the ROI and notice of her right to request a hearing before an Equal Employment Opportunity Commission Administrative Judge (AJ). Complainant timely requested a hearing. Over Complainant's objections, the AJ assigned to the case granted the Agency's motion for summary judgment and issued a decision on May 27, 2015. The Agency subsequently issued a final order fully adopting the AJ's finding that Complainant did not prove that the Agency denied her reasonable accommodation. Complainant appealed and, in Pamala L. v. U.S. Postal Serv., EEOC Appeal No. 0120152493 (Nov. 21, 2017), the Commission reversed the Agency’s final order and found that the Agency had denied Complainant reasonable accommodation. To remedy the discrimination, the Commission ordered the Agency to provide Complainant with the necessary reasonable accommodations; conduct a supplemental investigation into Complainant’s entitlement to compensatory damages; provide training to the responsible management officials; consider taking discipline against the responsible management officials; to award attorney’s fees as appropriate; and to post a notice. The Agency conducted a supplemental investigation and sought information from Complainant as to the damages she suffered as a result of the Agency’s failure to accommodate her. Supplemental Investigation During the supplemental investigation, Complainant argued that she was entitled to pecuniary and non-pecuniary compensatory damages because the Agency’s failure to accommodate her exacerbated her conditions such that she worked reduced hours and eventually became unable to work. Complainant averred that absent accommodations, her feet swell and hurt. She occasionally loses the feeling in her feet, which causes her to trip and fall. Complainant also experienced pain in her lower back and legs when she stands too long at an unmodified counter. She was forced to work a split shift, which reduced the amount of time she could set aside for physical therapy and rest. Complainant also averred that she suffered from severe migraines as a result of the Agency’s failure to accommodate her. Further, Complainant contended she “suffered psychiatric injuries such as stress, anxiety, depression and worry.” However, Complainant disavowed any treatment by a psychologist or psychiatrist. Complainant noted that the Office of Workers’ Compensation Program (OWCP) doctor removed her from work for eight months, which caused her to have no income. Complainant provided medical records from her doctor encompassing the time before, during, and after her requests for accommodation. Complainant also provided statements from her children. One of her children noted that Complainant’s sister suffered from cancer and passed away. 0120181511 3 Complainant’s doctor also noted, on July 15, 2013, that Complainant was providing care for her sister, and that it was very difficult to do so given her back and leg injuries. In the same report, the doctor noted that he prescribed an ergonomic chair and questioned why the Agency required Complainant to work a split shift, which did not make sense given her injuries. In addition, Complainant submitted receipts evidencing expenses for medical prescriptions and other medical expenses, and requested that they be reimbursed under the collateral source doctrine. Complainant identified $355.00 in bills from one medical provider (Provider 1) for three visits on May 13, 2015, August 2, 2017, and September 20, 2017; $1,707.54 from another medical provider (Provider 2) for three visits in 2016 and a fourth in 2017; and estimates that she spent $172.97 on medication between April 28, 2016 and September 20, 2017.2 In her affidavit seeking damages, Complainant requested that she be reimbursed for bills she incurred due to medical care regardless of insurance based on the collateral source rule. In support of her request for reimbursement of medical bills, Complainant provided a billing statement from Provider 2. A review of that statement indicates that for each visit, except one visit on April 26, 2016, the OWCP shouldered the financial responsibility. As to the April 26, 2016 visit, Complainant paid $331.00 out of pocket. On March 15, 2018, the Agency issued its final decision concerning Complainant’s entitlement to compensatory damages. In its decision, the Agency rejected Complainant’s additional requests for back pay, leave restoration, and contributions to her Thrift Savings Plan on the grounds that the Commission’s prior decision ordered only compensatory damages. Regarding pecuniary damages, the Agency determined that Complainant was not entitled to these damages as she failed to establish a causal link between the expenses incurred and the discrimination involved in this complaint. Next, the Agency analyzed Complainant’s entitlement to non-pecuniary compensatory damages. The Agency reviewed the medical documentation and statements Complainant provided and found that Complainant provided little evidence to show that the exacerbation of her injuries was directly attributable to the Agency’s failure to accommodate her, as opposed to the progression of her degenerative conditions. In doing so, the Agency noted the lack of contemporaneous medical records evidencing emotional distress and lack of prescribed anti-depressants. The Agency reviewed Commission precedent and awarded Complainant $20,000 in compensatory damages. Attorneys’ Fees Petition In Complainant’s December 18, 2017, Verified Statement of Fees and Expenses, Complainant sought $27,795.00 in attorneys’ fees. 2 Complainant states she does not have the actual cost for these medications, so she researched the cost. In support, Complainant provides a printout from GoodRx evidencing the cost of various prescriptions from various pharmacies. 0120181511 4 Complainant also stated that she incurred $115.50 in mileage, $3.00 in tolls, $30.00 for copying expenses, and $23.92 in postage for a total of $172.42 in costs. Complainant’s two attorneys billed $450.00 and $400 per hour respectively while the attorneys’ paralegal billed $100 per hour. One attorney and the paralegal submitted affidavits in support of their hourly rates. Attorney 1 avers that he is Complainant’s attorney and has been admitted to legal practice since 1983. Attorney 1 operates a law firm that employs, among other attorneys, Attorney 2. Attorney 1 regularly practices before the Commission and the Merit Systems Protection Board (MSPB), as well as federal and state courts. In practice, Attorney 1 charges $450.00 per hour for his work, and notes that his hourly rate has previously been approved by the Commission and the MSPB. Attorney 1 notes that Attorney 2 left his law firm on December 31, 2014. However, Attorney 1 avers that Attorney 2’s rate of $400.00 per hour is reasonable and commensurate with experience; Attorney 2 has been admitted to practice for more than 25 years and has substantial experience before the EEOC and MSPB. The paralegal averred that she has been employed with the law firm since 1984 and that her hourly rate has previously been approved by administrative judges with both the Commission and the MSPB. Complainant also provided affidavits from three other attorneys vouching for Attorney 1 and for the rates charged by Attorney 1’s law firm. In support of her request for attorneys’ fees, Complainant provided invoices from Attorney 1’s law firm for work done as early as July 11, 2013, when Attorney 1 spent 0.3 hours on “letter on getting chair; review letters on accommodation” and 0.1 hours on July 27, 2013 for “message reviewed on DRAC.” Attorney 1 then billed for the following entries: “completed a new complaint” on August 13, 2013 (0.4 hours); “call with client on form to complete for 2nd case” on August 14, 2013 (0.3 hours); “call with client on case” on August 30, 2013 (0.1 hours); and “review formal and go formal” on September 3, 2013 (0.1 hours). The record contains a January 23, 2018, invoice from Attorney 1 for work done in support of Complainant’s request for damages. In all, Attorney 1 performed 19.8 hours of work between December 18, 2017, and January 23, 2018, totaling $8,835.00 in legal fees. Out of the 19.8 hours listed, 11.6 hours were devoted to three entries. Attorney 1 met with Complainant on December 27, 2017 to review her damages and respond to her questions on damages; on January 2, 2018, Attorney 1 spoke with Complainant regarding her medical information, worked on her statement, and reviewed her medical information; and on January 3, 2018, Attorney 1 responded to Complainant’s email regarding the Agency’s questions, reviewed medical documentation that Complainant sent, spoke to Complainant, and worked on responses to questions. In a final decision dated March 12, 2018, the Agency denied a portion of Complainant’s request for attorneys’ fees and costs. 0120181511 5 The Agency first denied attorneys’ fees for $675.00 of work performed before Complainant filed her formal complaint because it was “apparent from the petition that the time expended was not for the purpose of determining representation.” The Agency found that the expenditure of 1.3 hours ($585.00) by Attorney 1 and 0.9 hours ($90.00) administrative work by the paralegal was not recoverable. The Agency reasoned that Complainant had already retained her attorneys. The Agency then denied $1,480.00 because it was attributed to time Attorney 2 spent consulting with Attorney 1, and time Attorney 2 spent on calls with the Agency’s reasonable accommodation committee. In doing so, the Agency argued that Attorney 2’s participation was duplicative and unnecessary because “[t]his case was not inherently complex.” The Agency denied an additional $1,590.00 in time spent by Attorney 1 consulting with, writing, and reviewing letters of the Agency’s reasonable accommodation committee because these tasks did not advance Complainant’s case before the EEOC. Further, the Agency represents that Attorney 1 voluntarily withdrew $45.00 because it was related to a prior EEO complaint. The Agency noted that Complainant’s second attorneys’ fees petition as it related to the presentation of evidence in support of damages was excessive ($8,835.00), and in some instances appeared to be clerical. The Agency did not indicate, however, whether it was refusing this petition in whole or in part. Turning to Complainant’s request for costs, the Agency determined Complainant did not provide any copies of bills or receipts, and therefore, $53.92 of costs must be denied. In sum, the Agency awarded Complainant a total of $29,223.00, a reduction of $7,579.42. The instant appeals followed for both final decisions. CONTENTIONS ON APPEAL On appeal, Complainant argues that the Commission merely remanded the matter for an investigation into compensatory damages and did not comment on what those damages may be. Therefore, Complainant contends that she is entitled to back pay, including time lost from work due to the Agency’s failure to accommodate her. As to the issue of compensatory damages, Complainant argues that the Agency’s decision ignores that it failed to accommodate her for four and a half years, which caused a gradual progression of Complainant’s problems. Therefore, the $20,000 award does not fully and fairly compensate her for her damages. Complainant cites two cases in support of an increase in compensatory damages to $250,000. Complainant contends that, in Augustine S. v. Dep’t of Homeland Sec., EEOC Appeal No. 0720110018 (Oct. 22, 2015), the Commission awarded $250,000 where the complainant suffered both physically and psychologically for a lengthy period of time and was forced to file for disability retirement. In addition, in McCormick v. Dep’t of Justice, EEOC Appeal No. 0720100040 (Nov. 23, 2011), the Commission awarded $200,000 when the Agency failed to accommodate the complainant for four years, which led to an increase in physical pain and damage to the complainant’s neck and shoulder and caused the complainant to be concerned for her job. 0120181511 6 With respect to attorneys’ fees, Complainant argues that the Agency improperly reduced fees. Complainant contends that she is entitled to fees for work performed before the filing of the formal complaint because it was a reasonable expenditure of time and involved work required as a result of the Agency’s failure to accommodate Complainant. Complainant denies that work performed by Attorney 1 and Attorney 2 was duplicative. Further, Complainant contends that the Agency improperly disallowed time spent in addressing the DRAC. Additionally, Complainant challenges the Agency’s denial of $53.92 in costs. In response, the Agency contends that Complainant proffered no authority supporting her right to back pay and that Complainant’s appeal ignores the quality of the evidence she submitted in support of a claim to compensatory damages. Specifically, the Agency argues that Complainant exaggerates the strength of evidence and distinguishes the OWCP physician’s decision to take Complainant off work from the Agency’s failure to accommodate her. Further, the Agency argues that, “[a]t no point does the complainant present evidence concerning the extent to which her pre- existing condition or the pain associated with it might have increased as a result of the agency’s actions; she simply references ‘pain’ and makes no effort to establish to what extent, if at all, it was increased.” The Agency notes that Complainant’s medical records demonstrated she was suffering from the pain ever since her 2003 injuries. The Agency responds to Complainant’s use of Augustine and McCormick. In both cases, an AJ held a hearing and issued a decision. Further, the injuries suffered in Augustine were more serious and well documented. In addition, in McCormick, the Agency notes that the complainant benefited from an additional claim of retaliation in which the complainant was considered a disruption to the workforce. The Agency requests that the Commission affirm its damages award of $20,000. The Agency presented no arguments regarding its award of attorneys’ fees. ANALYSIS AND FINDINGS As an initial matter, we note that Complainant did not raise any challenges regarding the Agency’s award of pecuniary compensatory damages. Accordingly, we find no basis to disturb that aspect of the Agency’s decision. Back Pay Complainant contends that she is entitled to back pay because the Commission’s prior order did not specify a specific type of damage. Complainant’s argument is not well taken. The Commission’s prior decision specified that the Agency was to investigate whether Complainant was entitled to compensatory damages. The Commission’s previous decision did not award Complainant back pay. If Complainant believed that the Commission’s prior decision improperly limited her ability to recover damages, Complainant could have filed a request for reconsideration with the Commission to address that matter. See 29 C.F.R. § 1614.405(c). Complainant did not do so. Accordingly, Complainant is not entitled to back pay. 0120181511 7 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 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. § 1981a(b)(3). To receive an award of compensatory damages, Complainant must demonstrate that 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. Complainant v. Dep’t of the Navy, EEOC Appeal No. 01934157 (July 22, 1994), req. for recon. den’d. EEOC Request No. 05940927 (Dec. 8, 1995); EEOC's Enforcement Guidance: Compensatory and Punitive Damages Available Under Section 102 of the Civil Rights Act of 1991, EEOC Notice No. 915.002 at 11-12, 14 (July 14, 1992) (“Guidance”). Complainant is required to provide objective evidence that will allow an Agency to assess the merits of her request for damages. See Complainant v. Dep’t of the Navy, EEOC Appeal No. 01922369 (Jan. 5, 1993). Furthermore, the award should take into account the severity and duration of the harm. Carpenter v. Dep’t of Agric., EEOC Appeal No. 01945652 (July 17, 1995). Section 102(a) of the 1991 Civil Rights Act authorizes an award of compensatory damages for non-pecuniary losses, such as, but not limited to, emotional pain, suffering, inconvenience, mental anguish, loss of enjoyment of life, injury to character and reputation, and loss of health. We note that damage awards for emotional harm are difficult to determine and that there are no definitive rules governing the amount to be awarded in given cases. A proper award must meet two goals: that it not be “monstrously excessive” standing alone, and that it be consistent with awards made in similar cases. See Cygnar v. City of Chicago, 865 F.2d 827, 848 (7th Cir. 1989). Non-pecuniary losses are not subject to precise quantification, i.e., emotional pain, suffering, inconvenience, mental anguish, loss of enjoyment of life, injury to professional standing, injury to character and reputation, injury to credit standing, and loss of health. See EEOC Notice No. 915.302 at 10 (July 14, 1992). 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. See Loving v. Dep't of the Treasury, EEOC Appeal No. 01955789 (Aug. 29, 1997). 0120181511 8 Evidence from a health care provider or other expert is not a mandatory prerequisite for recovery of compensatory damages for emotional harm. See Lawrence v. U.S. Postal Serv., EEOC Appeal No. 01952288 (Apr. 18, 1996) (citing Carle v. Dep’t of the Navy, EEOC Appeal No. 01922369 (Jan. 5, 1993)). Objective evidence of compensatory damages can include statements from Complainant concerning 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 non-pecuniary losses that are incurred as a result of the discriminatory conduct. Id. Statements from others including family members, friends, health care providers, and 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. Id. Complainant’s own testimony, along with the circumstances of a particular case, can suffice to sustain his burden in this regard. Id. 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. Id. The absence of supporting evidence, however, may affect the amount of damages appropriate in specific cases. Id. Complainant has the burden of proving the existence, nature and severity of the alleged emotional harm. Man H. v. Dep’t of Homeland Sec., EEOC Appeal No. 0120161218 (May 2, 2017). Complainant must also establish a causal relationship between the alleged harm and the discrimination. Id. Absent such proof of harm and causation, a Complainant is not entitled to compensatory damages, even if there were a finding of unlawful discrimination. Id. See also e.g. Wilda M. v. U.S. Postal Serv., EEOC Appeal No. 0120141087 (Jan. 12, 2017) (awards for emotional harm are warranted only if Complainant establishes a sufficient causal connection between the Agency’s illegal actions and her injury). In this case, Complainant seeks $250,000 in compensatory damages. However, we emphasize that a prevailing party’s right to compensatory damages is dependent upon the party’s ability to demonstrate that the harm she suffered was the result of discrimination. In her testimony, Complainant endeavors to connect every injury she suffered after the Agency denied her request for accommodation to that request. However, a fair review of Complainant’s medical records demonstrate that Complainant suffered from numerous injuries following her motor vehicle accident in 2003. Moreover, Complainant complains that the Agency’s actions caused her increased stress, but the evidence presented indicates several other potential sources of stress. While we are sympathetic to Complainant for assuming caregiving duties during her sister’s illness, the law requires Complainant to demonstrate that her increased emotional distress resulted from the Agency’s actions. Here, Complainant does not carry that burden. We do not have the benefit of a psychological or psychiatric assessment because Complainant denied having received such treatment. 0120181511 9 Moreover, it is difficult, based on the evidence available to us, to determine the extent to which the Agency aggravated Complainant’s pre-existing conditions. Nonetheless, based on the review of the evidence in light of Commission cases regarding non-pecuniary compensatory damages awarded for emotional harm, the Commission finds that the Agency's award of $20,000 is insufficient to remedy the harm experienced by Complainant. Here, Complainant requested accommodation in 2013, and her condition worsened over time following the Agency’s denial. The Agency failed to accommodate Complainant for approximately four and a half years and she experienced physical pain and severe emotional distress. Accordingly, we find that an award of $25,000 in compensatory damages is reasonable and in line with our precedent. See Liza B. v. Dep’t of Agric., EEOC Appeal No. 0120152098 (Aug. 31, 2017) ($22,500 awarded where complainant experienced depression and anxiety which at times were severe, partly due to her declining physical health, not the Agency's discrimination); Minna Z. v. Dep’t of the Air Force, EEOC Appeal No. 0720160009 (March 10, 2017) (award of $25,000 for failure to engage in the interactive process to find the employee a reasonable accommodation where the employee suffered from insomnia, depression, migraine headaches, anxiety, harm to her reputation, and aggravation of pre-existing physical and mental conditions); and Dallas D. v. U.S. Postal Serv., EEOC Appeal No. 0120150319 (Mar. 24, 2017) ($30,000 awarded where complainant experienced emotional and mental distress, exacerbation of his pre-existing conditions, anxiety, and isolation from his family and social gatherings). The Commission finds that this amount considers the severity of the harm suffered and is consistent with prior Commission precedent. Finally, the Commission finds this award 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 Jackson v. U.S. Postal Serv., EEOC Appeal No. 01972555 (Apr. 15, 1999) (citing Cygnar v. City of Chicago, 865 F. 2d 827, 848 (7th Cir. 1989)). Attorneys’ Fees By federal regulation, the agency is required to award attorney’s fees for the successful processing of an EEO complaint in accordance with existing case law and regulatory standards. 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. Hensley v. Eckerhart, 461 U.S. 424, 434 (1983). There is a strong presumption that 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). All hours reasonably spent in processing the complaint are compensable, but the number of hours should not include excessive, redundant or otherwise unnecessary hours. Id. at 11-15. A reasonable hourly rate is based on prevailing market rates in the relevant community for attorneys of similar experience in similar cases. Id. at 11-6. 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. at 11-9. 0120181511 10 “If the agency contests the fee request, it must provide equally detailed documentation in support of its arguments.” Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), Ch. 11, § (VI)(G)(2) (citing Nat’l Ass’n of Concerned Veterans v. Sec’y of Def., 675 F.2d 1319 (D.C. Cir. 1982)). Here, the Agency does not dispute the reasonableness of the hourly rates charged in this case. However, the Agency reduced Complainant’s awarded fees for several reasons. Pre-Complaint Fees First, the Agency denied $675.00 as work performed prior to the time Complainant filed her formal complaint because the Agency believed it was clear the attorney had already agreed to represent Complainant. EEOC Regulation 29 C.F.R. § 1614.501(e)(1)(iv) provides, in pertinent part, that agencies are not required to pay attorney's fees on services performed during the pre- complaint process. Furthermore, an attorney may reasonably expend up to two hours to determine whether to represent a complainant. Nenita S. v. Dep’t of Veterans Affairs, EEOC Appeal No. 0120151925 (May 23, 2017). We find that Attorney 1’s entries for July 11, 2013 for “letter on getting chair; review letters on accommodation” (0.3 hours) and July 27, 2013 for “message reviewed on DRAC” (0.1 hours) do not appear related to the processing or determination to file the present complaint. The entries for “completed a new complaint” on August 13, 2013 (0.4 hours); “call with client on form to complete for 2nd case” on August 14, 2013 (0.3 hours); “call with client on case” on August 30, 2013 (0.1 hours); and “review formal and go formal” on September 3, 2013 (0.1 hours), all appear to be connected to the determination and actions related to representing Complainant in the present matter. In addition, we find the administrative work performed by the paralegal in preparation of the complaint is recoverable for 0.9 hours at the hourly rate of $100 for a total of $90.00. Therefore, we find that 0.9 hours at the rate of $450 and 0.9 hours at the rate of $100 is appropriate for services performed during the pre-complaint process for a total of $495.00. Duplicative Fees 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 Ch. 11 § VI.F. The Commission has ruled that, when reviewing fee petitions which contain many excessive, redundant, unnecessary or inadequately documented expenditures of time, in lieu of engaging in a line-by-line analysis of each charge claimed, the Commission may calculate the number of hours compensable by applying an across-the-board reduction to the number of hours requested. See Bernard v. Dep't of Veterans Affairs, EEOC Appeal No. 01966861 (July 17, 1998). While we agree that time spent by Attorney 2 to consult with Attorney 1 or sit in on conferences with Attorney 1 are not compensable, Attorney 2’s billing entries do not reflect that the entirety of his time was spent in such a manner. For example, on April 17, 2014, Attorneys 1 and 2 discussed the case, but Attorney 2 went on to discuss the case with Complainant and another person, and engage in a DRAC conference. The invoice indicates that Attorney 1 did not participate in this call. 0120181511 11 We note that the Agency’s reduction of Complainant’s fee petition for Attorney 2’s work amounted to a five percent across the board reduction. Given the mixed nature of Attorney 2’s work, we think it more appropriate to apply a three percent reduction across the board for duplicative work. Accordingly, we reduce the Agency’s reduction of $1,480 to $833.00. Reduction for Time Spent not in Advancement of the Complaint The Agency reduced Complainant’s request for fees by $1,590.00 because “consulting with, writing, and reviewing letters of the Postal Service DRAC . . . was not spent in advancement of [Complainant’s] case before this Commission.” The Commission specifically reversed the Agency’s decision and found that the Agency failed to reasonably accommodate Complainant. Such actions necessarily involve the DRAC. The Agency provides only the barest of explanation for disallowing these fees and does not adequately support its position. See EEO MD-110, Ch. 11, § (VI)(G)(2). Accordingly, we reverse the Agency’s decision in this respect. Costs The Agency denied $53.92 in postage and costs. We have consistently held that fee applicants who wish to be reimbursed for incurred costs must submit adequate documentation in support of the expenses incurred, such as copies of telephone bills or receipts. See Davis v. U.S. Postal Serv., EEOC Appeal No. 0120053186 (Apr. 24, 2007); Poquiz v. Dep't of Homeland Sec., EEOC Appeal No. 0720050095 (Apr. 10. 2008). In this case, Complainant's attorney acknowledges that no such receipts were provided. Accordingly, we find that the Agency correctly disallowed $53.92 in costs. Attorneys’ fees for presentation of damages The Agency carries the burden of demonstrating that Complainant is not entitled to attorneys’ fees. As noted, the Agency appears to have disallowed some portion, if not all, of Complainant’s January 23, 2018, invoice on the basis that the petition was “excessive, and in some instances the tasks appear to be of a clerical nature.” Upon review of the January 23, 2018, invoice ($8,835.00), the Commission can discern no tasks that were clerical in nature and no other evidence supporting the Agency’s position. Accordingly, the Agency’s disallowance of these fees was improper. Without further explanation, we see no reason not to award Complainant attorneys’ fees for work done in support of her request for damages. In conclusion, we find that Complainant’s attorneys’ fees petition for $27,795 merited a reduction of $833 for duplicative work, along with $45 of legal work that was voluntarily withdrawn, and a reduction of $180 for pre-complaint billings, for a total of $26,737. Plus the fees for the work done on damages of $8,835.00, we find Complainant is entitled to $35,572 in attorneys’ fees and $53.92 in costs. 0120181511 12 CONCLUSION Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we MODIFY the Agency’s final decision, and REMAND the matter in accordance with the ORDER below. ORDER Within 60 days of the date this decision is issued, to the extent it has not already done so, the Agency is ordered to take the following actions: 1. Pay Complainant $25,000.00 in compensatory damages; and 2. Pay Complainant $35,625.92 in attorneys’ 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 verifying that the corrective action has been implemented. 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). 0120181511 13 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. 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 CFR § 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. 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. 0120181511 14 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’s signature Carlton M. Hadden, Director Office of Federal Operations September 27, 2019 Date Copy with citationCopy as parenthetical citation