Pamala L.,1 Complainant,v.Megan J. Brennan, Postmaster General, United States Postal Service (Capital Metro Area), Agency.

Equal Employment Opportunity Commission

Sep 27, 2019

0120181511 (E.E.O.C. Sep. 27, 2019)

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.
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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.
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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.
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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.
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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.
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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.
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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).

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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.

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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.
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“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.
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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.

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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).
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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.
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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