0120151360
07-28-2017
Sang G.,1 Complainant, v. John F. Kelly, Secretary, Department of Homeland Security (Immigration and Customs Enforcement), Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Sang G.,1
Complainant,
v.
John F. Kelly,
Secretary,
Department of Homeland Security
(Immigration and Customs Enforcement),
Agency.
Appeal No. 0120151360
Hearing No. 560-2013-00044X
Agency No. HS-ICE-00465-2011
DECISION
On January 20, 2015, Complainant filed an appeal, pursuant to 29 C.F.R. � 1614.403(a), from the Agency's January 25, 2014, final decision concerning his equal employment opportunity (EEO) complaint alleging employment discrimination in violation of Title VII of the Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. � 2000e et seq. For the following reasons, the Commission MODIFIES the Agency's final decision with regard to the amount of compensatory damages and attorney's fees awarded to Complainant.
ISSUE PRESENTED
The issue presented in this case is whether the Agency's award of $15,000 in non-pecuniary compensatory damages and $6,379.35 in attorney's fees was sufficient.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as an Immigration Enforcement Agent (IEA) at the Agency's Office of Enforcement Removal in Omaha, Nebraska. Complainant was terminated from his position during his probationary period. He alleged that his termination was based on discrimination.
On March 11, 2011, Complainant filed an EEO complaint alleging that the Agency discriminated against him on the bases of race (African-American), color (Dark Brown), parental status2 (children) and reprisal for prior protected EEO activity when:
1. On approximately March 9, 2010, an Acting Supervisory Immigration Enforcement Agent (ASIEA) repeatedly called his government-issued cellular telephone in order to ascertain his whereabouts.
2. On April 6, 2010, a co-worker "spiked" his water bottle.
3. During the week of April 12, 2010, a Supervisory Detention and Deportation Officer (SDDO) and another Immigration Enforcement Agent (IEA) made demeaning comments about him during an IEA meeting.
4. On approximately June 9, 2010, the IEA deliberately withheld a file from him.
5. On November 24, 2010, an ASIEA commented to other employees that he had elected to "work on "an email with the Union" [the American Federation of Government Employees (AFGE)] rather than to complete a task as instructed by the ASIEA,
6. Beginning on December 1, 2010, the Supervisory Immigration Enforcement Agent (SIEA) assigned him to cover all Area of Responsibility (AOR) jails.
7. During the week of December 6, 2010, an ASIEA entered his cellular telephone number into the duty phone register "in deviation of a set assigned duty phone schedule" and without informing Complainant of the assignment.
8. During classroom training held on approximately December 10, 2010, the Firing Range Instructor "freely" used the word "n****" on "several occasions," justified the killing of an unarmed African-American by a law enforcement officer, and singled him out in a hypothetical training exercise/scenario as an unethical law enforcement officer.
9. On approximately December 14, 2010, the SDDO refused to relieve him of the improper duty phone assignment.
10. During the week of December 20, 2010, an ASIEA tasked him with processing a detainer and posted the assignment on a public work board.
11. During the week of December 20, 2010, an ASIEA made "veiled threats" against him on two occasions.
12. By letter dated December 27, 2010, the Field Office Director (FOD) placed him administrative leave, suspended his authority to carry a firearm, and directed him to surrender his government-issued firearm and credentials.
13. By letter dated January 11, 2011, the FOD terminated his probationary employment as on IEA.
At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation and notice of his right to request a hearing before an Equal Employment Opportunity Commission Administrative Judge (AJ). Complainant timely requested a hearing but subsequently withdrew his request. Consequently, the Agency issued a final decision pursuant to 29 C.F.R. � 1614.110(b). The decision concluded that Complainant proved that the Agency subjected him to reprisal discrimination with respect to the following two claims:
12. By letter dated December 27, 2010, the FOD placed Complainant on administrative leave, suspended his authority to carry a firearm, and directed him to surrender his government-issued firearm and credentials; and
13. By letter dated January 11, 2011, the FOD terminated Complainant's probationary employment as an Immigration Enforcement Agent (IEA).
The Agency was Ordered to take the following remedial measures:
a. Reinstate Complainant's probationary employment, within sixty (60) days of the date of the FAD, with back pay, retroactive to the date that his employment was terminated. Complainant's employment was to remain probationary for the number of days that remained in his probationary period on the date that his employment was terminated.
b. Conduct EEO training, within sixty (60) days of the date of the FAD, with an emphasis on the prohibition against retaliation. The training was to be conducted for the Field Office Director (FOD) and other management officials and employees affiliated with the Omaha, Nebraska, Office of Enforcement Removal Operations.
c. Post a notice of the finding of discrimination to ICE employees in the Omaha, Nebraska, Office of Enforcement Removal Operations, within thirty (30) days of the date of the FAD, for sixty (60) days, consistent with the requirements of 29 C.F.R. Section 1614.501(a).
Complainant submitted documentation regarding his entitlement to compensatory damages and attorney's fees. Complainant requested $80,000 in nonpecuniary damages and $27,398.89 in attorney's fees and costs. The Agency found that $15,000.00 sufficient.
With regard to the request for $27,398.89 in attorney's fees and costs, the Agency argued that the claim for 100 percent of the attorney's hourly rate for 10.6 hours of travel time should be reduced by 50 percent, citing Black v. Dept't of the Army, EEOC Appeal No. 01943642 (Dec. 9, 1998). The Agency awarded Complainant $6,379.35 in attorney's fees and costs. The Agency argued that Complainant achieved only limited success and therefore should receive only the amount of the fees that is reasonable in relation to the results obtained. First, the Agency reduced by 50 percent the time therefore, the Agency subtracted $1,881.50 from the lodestar, leaving $25,517.39. The Agency then argued that Complainant's attorney made no effort to segregate the time or expenses attributable to the two claims where Complainant prevailed from the time spent on the remaining 11 unsuccessful claims. Therefore, based on Complainant's limited success, the Agency reduced the requested amount for fees and costs to $6,379.35.
CONTENTIONS ON APPEAL
On appeal, Complainant contends that as a result of the Agency's discriminatory actions he experienced physical and mental pain and suffering. He experienced extreme anxiety and panic attacks for many months, he developed insomnia and began drinking alcohol in excess. He also maintains that his continuing and long term inability to obtain employment after being terminated is the result of in severe depression which impacted his relationship with his wife and teenage son.
Complainant maintains that the Agency's award of $15,000 fails to take into consideration the long-term harm caused by its decision to terminate him. Complainant maintains that he was forced to live with the continuing effects that the Agency's improper termination caused. He indicates that not only was he unable to afford mental health treatment due to his termination, his resultant inability to obtain new employment served as a constant reminder of the Agency's actions and exacerbated his depression over an extended period of time. He maintains that the Agency, with no explanatory analysis, seemed to disregard the long-term nature of his suffering. For this reason, Complainant asserts that the Agency's compensatory damage amount should be dismissed and in its place, an award of $80,000 should be made.
Further, with regard to attorney's fees, Complainant's attorney submitted an Attorney Fee and Time Statement, listing 69 timed activities dating from September 23, 2012 to November 10, 2014. The attorney charged an hourly rate of $355, with a total of 72.4 hours. The attorney's statement also included three expense items dating from April 14 to May 6, 2013, including deposition transcripts, travel expenses related to depositions, and meal expenses related to travel for deposition. The fees and expenses totaled $27,398.89. Complainant maintains that while it is true that he did not prove all of his claims, he was however successful with regard to the most important claim, i.e. his termination. Complainant maintains that this constituted the bulk of his concerns and that other matters were intertwined.
The Agency, among other things, requests that its decision be affirmed.
STANDARD OF REVIEW
As this is an appeal from a decision issued without a hearing, pursuant to 29 C.F.R. � 1614.110(b), the Agency's decision is subject to de novo review by the Commission. 29 C.F.R. � 1614.405(a). See Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614, at Chapter 9, � VI.A. (Aug. 5, 2015) (explaining that the de novo standard of review "requires that the Commission examine the record without regard to the factual and legal determinations of the previous decision maker," and that EEOC "review the documents, statements, and testimony of record, including any timely and relevant submissions of the parties, and . . . issue its decision based on the Commission's own assessment of the record and its interpretation of the law").
ANALYSIS AND FINDINGS
Non-pecuniary damages
Non-pecuniary losses are losses that 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). The Commission notes that non-pecuniary compensatory damages are designed to remedy the harm caused by the discriminatory event rather than punish the Agency for the discriminatory action. Furthermore, compensatory damages should not be motivated by passion or prejudice or be "monstrously excessive" standing alone but should be consistent with the amounts awarded in similar cases. See Ward-Jenkins v. Dep't of the Interior, EEOC Appeal No. 01961483 (Mar. 4, 1999).
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 her emotional pain or suffering, inconvenience, mental anguish, loss of enjoyment of life, injury to professional standing, injury to character or reputation, injury to credit standing, loss of health, and any other non-pecuniary losses that are incurred as a result of the discriminatory conduct. Id.
Statements from others including family members, friends, health care providers, other counselors (including clergy) could address the outward manifestations or physical consequences of emotional distress, including sleeplessness, anxiety, stress, depression, marital strain, humiliation, emotional distress, loss of self-esteem, excessive fatigue, or a nervous breakdown. Id. Complainant's own testimony, along with the circumstances of a particular case, can suffice to sustain her 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 requested $80,000 in non-pecuniary damages but the Agency only awarded Complainant $15,000 in non-pecuniary damages. Taking into account the evidence of non-pecuniary damages submitted by Complainant, the Commission finds that an award of $25,000 is more appropriate than the $15,000 awarded by the Agency. Complainant demonstrated that, because of the Agency's conduct, he endured emotional distress that affected not only him but his family relationships (separation from his wife and loss of respect from his son). Moreover, Complainant persuasively established that due to his inability to gain employment, his depression worsened and he was unable to afford healthcare for treatment. We agree with Complainant's that the Agency's award did not adequately account for the duration of his harm. As such, we find that an award of $25,000 is supported by the evidence, is neither 'monstrously excessive' nor the product of passion or prejudice, and is consistent with prior Commission precedent. For example, in Martina S. v. Department of Homeland Security, EEOC Appeal No. 0120160001 (Jan. 24, 2017) ($25,000.00 awarded where Agency discrimination resulted in familial strain, stress, anger, frustration, sleep and eating issues); Complainant v. Department of Defense, EEOC Appeal No. 0720140009 (Sep. 22, 2015) ($25,000.00 awarded where complainant experienced anxiety, panic attacks, insomnia, headaches, tremors, heart palpitation, headaches, and claustrophobia as a result of the agency's discrimination); Parker v. Dep't of the Navy, EEOC Appeal No. 0720080062 (Feb. 26, 2009) (following discriminatory non-selection, complainant was awarded $25,000 in non-pecuniary damages where complainant endured emotional pain and suffering, humiliation, difficulty sleeping, weight gain, and loss of enjoyment of life); and Utt v. U.S. Postal Service, EEOC Appeal No. 0720070001 (Mar. 26, 2009) ($25,000 in non-pecuniary damages awarded where complainant provided testimony that as a result of discrimination he suffered from stress, low self-esteem, difficulty sleeping and weight gain).
Attorney's fees
Attorney's fees may not be recovered for work on unsuccessful claims. Hensley v. Eckerhart, 461 U.S. at 434-35 (1983). Courts have held that fee applicants should exclude time expended on "truly fractionable" claims or issues on which they did not prevail. See Nat'l Ass'n of Concerned Veterans v. Sec'y of Defense, 675 F.2d 1319, 1327 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. In cases where a claim for relief involves "a common core of facts or will be based on related legal theories," however, a fee award should not be reduced simply because the plaintiff failed to prevail on every contention raised in the lawsuit. Id. at 435. "The hours spent on unsuccessful claims should be excluded in considering the amount of a reasonable fee only where the unsuccessful claims are distinct in all respects from the successful claims." EEO MP-110, at Ch. 11 � VI.F (citing Hensley, 461 U.S. at 440).
The Agency reduced Complainant's requested attorney's fees by 75%. The Agency reasoned that Complainant's requested attorney's fees should be reduced because Complainant only prevailed on two out of his thirteen claims. Commission cases have not automatically reduced attorney's fees to a ratio of prevailing claims to non-prevailing claims. See, e.g., King v. Dep't of Treasury, Appeal No. 01A24792 (Jan. 23, 2004) (stating that "the Commission discourages reducing attorney's fees based on mathematical formulas or inflexible ratios comparing litigated claims to claims won").
Complainant prevailed on allegations of discrimination based on reprisal when he was placed on administrative leave, his authority to carry a firearm was suspended, he was directed to surrender his government-issued firearm and credentials; and by letter dated January 11, 2011, he was terminated during his probationary period. Complainant's remaining assertions constituted, for the most part, a hostile work environment claim based on race, color, and reprisal. We find that Complainant's hostile work environment claim is not truly fractionable from his successful claims because they arise out of a common core of facts which took place during his approximately nine months of employment. In fact, the Agency found that direct evidence of retaliation took place regarding issues 12 and 13 when Complainant complained to the FBI about race-based and threatening comments made in his workplace and his fear of potential race-based violence in his workplace. We note that several of the matters Complainant complained to the FBI about were incidents set forth in his unsuccessful hostile work environment claim. The two issues that Complainant prevailed upon were not only the most important of the 13 matters raised but were clearly intertwined with the remaining 11. Therefore, we find that a reduction of attorney's fees in the amount 75% was unwarranted. We find that given that Complainant's allegations cannot be said to be "distinct in all respects," no reduction of attorney's fees is appropriate. See, e.g., Bujalski v. U.S. Postal Serv., EEOC Appeal No. 0720110020 (Aug. 31, 2012) (finding that "since all the [complainant's] claims, both successful and unsuccessful, are based on the same theory of liability, i.e., race, color, retaliation, it cannot be concluded that the unsuccessful claims are "distinctly different" from the successful claims"; as such we find that other than the $1,881.50, deduction for travel there should be no reduction in attorney's fees even though Complainant only prevailed on two out of 13 claims. Therefore, attorney's fees should be paid in the amount of $25,517.39.
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 decision regarding compensatory damages and attorney's fees.
ORDER
To the extent that it has not already done so, the Agency, within one hundred and twenty calendar days (120) is ORDERED to do the following:
1. Pay Complainant $25,000, in non-pecuniary damages.
2. Pay Complainant's attorney's fees and costs in the amount of $25,517.39.
3. Reinstate Complainant's probationary employment, with back pay, retroactive to the date that his employment was terminated. Complainant's employment is to remain probationary for the number of days that remained in his probationary period on the date that his employment was terminated.
4. Conduct EEO training with an emphasis on the prohibition against retaliation discrimination. The training was to be conducted for the Field Office Director and other management officials and employees affiliated with the Omaha, Nebraska, Office of Enforcement Removal Operations.
5. The Agency shall consider taking appropriate disciplinary action against the Field Office Director and other management officials and employees affiliated with the Omaha, Nebraska, Office of Enforcement Removal Operations. The Commission does not consider training to be disciplinary action. The agency shall report its decision to the Compliance Officer. If the agency decides to take disciplinary action, it shall identify the action taken. If the agency decides not take disciplinary action, it shall set forth the reason(s) for its decision not to impose discipline. If any of the responsible management officials have left the agency's employ, the agency shall furnish documentation of their departure date(s).
POSTING ORDER (G0617)
The Agency is ordered to post at its the Immigration and Customs Enforcement's facility located in Omaha, Nebraska copies of the attached notice. Copies of the notice, after being signed by the Agency's duly authorized representative, shall be posted both in hard copy and electronic format by the Agency within 30 calendar days of the date this decision was issued, and shall remain posted for 60 consecutive days, in conspicuous places, including all places where notices to employees are customarily posted. The Agency shall take reasonable steps to ensure that said notices are not altered, defaced, or covered by any other material. The original signed notice is to be submitted to the Compliance Officer as directed in the paragraph entitled "Implementation of the Commission's Decision," within 10 calendar days of the expiration of the posting period. The report must be in digital format, and must be submitted via the Federal Sector EEO Portal (FedSEP). See 29 C.F.R. � 1614.403(g).
ATTORNEY'S FEES (H1016)
If Complainant has been represented by an attorney (as defined by 29 C.F.R. � 1614.501(e)(1)(iii)), he 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 (K0617)
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 in the digital format required by the Commission, and submitted via the Federal Sector EEO Portal (FedSEP). See 29 C.F.R. � 1614.403(g). 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 (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. 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
_7/28/17_________________
Date
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.
2 The Commission notes that parental status is not covered under Title VII.
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