01A35285
12-16-2004
Thomas L. Ketchum, Jr., Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Thomas L. Ketchum, Jr. v. United States Postal Service
01A35285
December 16, 2004
.
Thomas L. Ketchum, Jr.,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A35285
Agency No. 4H-390-1136-96
Hearing No. 130-1998-08254-
DECISION
BACKGROUND
Complainant timely initiated an appeal from the agency's final order
concerning his equal employment opportunity (EEO) complaint of unlawful
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.
The appeal is accepted pursuant to 29 C.F.R. � 1614.405.
Complainant filed an EEO complaint alleging discrimination on the bases
of race (Caucasian) and reprisal when he was removed. Complainant
requested a hearing by the EEOC Administrative Judge (AJ1). When the
agency failed to provide the administrative file to AJ1, AJ1 issued
judgment in favor of complainant. The agency appealed the matter to the
Commission which was docketed as Appeal No. 01990900 (August 7, 2002),
req. for recon. denied, Request No. 05A21232 (March 20, 2003).
The Commission summarily affirmed AJ1's issuance of the decision without a
hearing and ordered, among other things, that the matter be referred back
to another EEOC Administrative Judge (AJ2) on the issue of compensatory
damages and attorneys' fees and costs. The complaint was assigned to
AJ2 for the hearing on compensatory damages and a decision on attorneys'
fees and costs.
AJ2 issued a pre-hearing order dated May 9, 2003, ordering the parties
to conduct discovery, provide to the parties and AJ2 a list of the
persons that the parties request to call as witnesses at the hearing,
and for complainant to provide to the agency and AJ2 an itemized list of
the dollar amount sought along with evidence on which his compensatory
damages claim is based. Complainant provided an outline in the amount
of $ 782,708.00. AJ2 determined that the list was incomplete and
that the only support provided by complainant was his �Explanation of
Benefits� (EOB) statements from his insurance company showing that he
owed his psychologist (Psychologist) the sum of $ 393.00. In addition,
complainant provided documentation which he purported to be in support
of his bankruptcy petition. Complainant indicated that he, his wife
and Psychologist would be testifying at the hearing in support of his
claim for compensatory damages.
The agency submitted a motion for sanctions for complainant's failure
to cooperate in scheduling himself and his wife for depositions.
In addition, the agency noted that complainant's submissions were
not complete. In particular, complainant failed to provide any medical
documentation to support his request for compensatory damages as related
to the testimony to be provided by the Psychologist. The agency then
submitted a second motion stating that complainant had not provided any
notes, records, or documents regarding treatment by the Psychologist other
than the EOB to support his claim for compensatory damages. The record
indicates that complainant listed the Psychologist on his witness list
as an expert witness. The agency's third motion for sanctions indicated
that complainant was still not providing all documents for which his
compensatory damages claim was based.
Despite labeling his Psychologist as an �expert witness,� complainant
responded by arguing that lay testimony would be sufficient to prove
his claim for compensatory damages. Unknown to his representative,
at the day of his deposition, complainant attempted to serve documents
on the agency. There is no indication as to what exactly complainant
tried to provide the agency. The agency representative refused to
accept any documents stating that the representative would not be able
to review them prior to the deposition. Complainant again tried to
serve the agency with documents in a sealed envelope the morning of the
hearing. Complainant did not explain what information was contained in
the documents or whether they were in fact related to testimony to be
provided by the Psychologist. Complainant's representative claimed no
knowledge of complainant's action and did not provide any explanation
for how the documents related to the claim for compensatory damages.
AJ2 determined that complainant failed to provide the documents in support
of his claim for compensatory damages as ordered. Further, AJ2 found
that complainant did not demonstrate good cause for not providing the
documents to AJ2. Therefore, AJ2 excluded those documents as evidence in
this case. AJ2 also did not consider the testimony of the Psychologist
based on complainant's failure to provide any documentation from her
except for his bill.
AJ2's Decision
Following the hearing, AJ2 issued his decision. Among other things,
AJ2 found that complainant was not very forthright in his testimony
and, consequently, not very credible as a witness. AJ2 also noted
that complainant had filed bankruptcy allegedly as a result of the
discrimination. However, AJ2 stated that complainant also indicated that
he filed for bankruptcy to avoid paying $ 13,000.00, which the union was
seeking from him. In addition, complainant asserted that his reputation
was affected. AJ2 indicated that there were several acts of misconduct
attributed to complainant such as applying for a credit card in another
person's name, a fourteen day suspension for receiving compensation
for work he did not perform, and pleading guilty to a criminal offense.
AJ2 noted that complainant has a record of being dishonest. Upon review
of the record, AJ2 was not persuaded that all the events for which
complainant are seeking compensation would logically follow from his
termination by the agency.
The Psychologist diagnosed complainant with Major Depressive Disorder
which she attributed to the treatment by the agency based on her sessions
with complainant. The Psychologist and complainant's wife paint a picture
of a fragile complainant. AJ2 contrasted the depiction of complainant by
the two witnesses to complainant's presence on the witness stand. AJ2
found that in his testimony, complainant showed that he was no stranger
to adversity and quite capable of standing in its wake. AJ2 also noted
that complainant showed signs of being a vindictive person. In a series
of events regarding a former colleague of complainant, complainant showed
a similar pattern of actions for which he was terminated by the agency.
Based on the totality of the record, AJ2 found that complainant did not
support his request for $782,708.00 in damages. In this case, AJ2 found
that complainant presented little to no objective evidence to support
his claim for compensatory damages and determined that complainant was
entitled to $500.00.
As for attorney's fees and costs, complainant's attorneys (CA1 and CA2)
requested the amount of $ 35,887.34. The agency objected to CA1 and CA2's
fee petition asserting that the amount was unreasonable, excessive and not
based on the prevailing market rate in Jackson, Mississippi. Further,
the agency argued that CA1 and CA2 were not complainant's counsel at
the time AJ1 issued the decision on the merits regarding discrimination.
In addition, CA1 and CA2 used the prevailing rate of Baltimore, Maryland
where the case was heard and not where the attorneys are located.
Finally, the agency indicated that the petition was deficient in that
there are no supporting documents regarding the customary hourly rate
and the numbers of years of experience in labor and employment law.
AJ2, after reviewing the petition and the agency's objections, found that
CA1 and CA2's fee petition included items which were in fact excessive,
redundant, and unnecessary. Based on the deficiencies of the fee
petition, AJ2 allowed thirty (30) hours for services rendered. Further,
because CA1 and CA2 provided no support to show the reasonable hourly rate
or experience in labor and employment law, AJ2 determined that $ 150.00
was reasonable for Jackson, Mississippi. Therefore, the total allowed by
AJ2 was $ 4,500.00. As for costs, AJ2 allowed 8 travel hours at $ 75.00
per hour and $ 617.15 in travel related expenses. Finally, AJ2 allowed $
1,800.00 for the services of the expert witness. The total in fees and
costs awarded was $ 7,575.15. The agency implemented AJ2's decision.
Complainant's Appeal
Complainant appealed stating that he made it clear to AJ2 and the agency
that he intended to prove his claim of compensatory damages through
the observations of witnesses to his physical symptoms following the
agency's discriminatory action. At the hearing, complainant provided
numerous symptoms he suffered including constant headaches, difficulty
focusing, worried about supporting his family, excessive weight gain,
nervousness, insomnia, and anxiety. Complainant pointed to testimony
from his wife who indicated that their marriage suffered as a result of
the stress and that they have since separated. An agency distribution
clerk also testified as to the change in complainant since the removal.
Complainant argued that the Psychologist supported his claims regarding
the physical symptoms from which he suffered.
Complainant contends that AJ2's award in compensatory damages was too
low based on the testimonies presented at the hearing. Complainant also
argues that AJ2's finding of complainant's lack of credibility should
not have been considered and charges that AJ2 circumvented AJ1's finding
of discrimination. Complainant asserts that it was inappropriate for
AJ2 to judge his honesty and integrity and then find in his disfavor.
Complainant also argues that AJ2 should not have stricken the testimony of
the Psychologist because he failed to supply his records. Complainant
asserts that he did not intend to use those records as evidence;
therefore, he did not have to supply them. In addition, had AJ2 used
the Psychologist's testimony, AJ2 would have seen that she corroborated
his testimony regarding his symptoms.
As to the award of attorneys' fees and costs, CA1 and CA2 assert that
the amount granted was far too low based on the work they provided for
complainant. They note that complainant provided them with 789 pages of
documents regarding the matter at hand and other matters. Further, they
concede that they were not involved with the liability phase of this case.
CA1 and CA2 also indicate in newly drafted affidavits that they have
been practicing in the area of employment law for the past eight years.
They request that the hourly rate be increased to $ 267.00 for prior
to June 1, 2003, $ 400.00 per hour for work done after June 1, 2003.
In addition, they request that the hours allowed to be raised to fifty
(50) from thirty (30).
FINDINGS AND CONCLUSION
Exclusion of Psychologist
The Commission finds that complainant placed his medical condition at
issue before AJ2 when he listed the Psychologist as well as himself
as witnesses to present evidence of the alleged harm caused by the
agency's action. Since the agency needed to prepare for complainant's
presentation of his medical condition, it is altogether appropriate for
the agency to request an opportunity to review the medical records in
order to prepare for the hearing. Without the medical records, the agency
has no basis upon which to prepare for testimony at the hearing by the
Psychologist or complainant or even for their depositions. Therefore,
regardless of whether the records were to be used by the Psychologist at
the hearing to refresh her memory, it is appropriate for the agency to
request such documents as they would be the basis of the psychologist's
testimony and would allow them to prepare for the depositions and the
hearing before AJ2.
Upon review of complainant's appeal and the record, we find that there
is no evidence in the record establishing sufficient good cause to excuse
complainant's failure to comply. Accordingly, the Commission finds that
AJ2's decision to exclude the Psychologist's testimony was appropriate.
See 29 C.F.R. � 1614.109(f)(3). Because we have affirmed the exclusion
of the Psychologist testimony, we do not need to address complainant's
contention that it corroborated his testimony.
Credibility Determination by AJ2
Complainant argued that the award was too low based on the testimony
presented at the hearing. In particular, complainant contested AJ2's
determination on complainant's credibility. While complainant argued
that AJ2's assessment of his honesty and credibility was inappropriate,
we note that it is the role of the AJ to make findings on the credibility
of witnesses during hearings. The credibility determinations of an AJ
are entitled to deference due to the AJ's first-hand knowledge through
personal observation of the demeanor and conduct of the witnesses. See
Esquer v. United States Postal Serv., EEOC Request No. 05960096 (September
6, 1996). As a result, we note that the Commission will generally
not disturb the credibility determinations of an AJ, where, as here,
such determinations are based on the credibility of the witnesses at
the hearing. Id.
Compensatory Damages
Pursuant to section 102(a) of the Civil Rights Act of 1991, a
complainant who establishes his or her claim of unlawful discrimination
may receive, in addition to equitable remedies, compensatory damages
for past and future pecuniary losses (i.e., out of pocket expenses)
and non-pecuniary losses (e.g., pain and suffering, mental anguish).
42 U.S.C. � 1981a(b)(3). The particulars of what relief may be awarded,
and what proof is necessary to obtain that relief, are set forth in detail
in Enforcement Guidance: Compensatory and Punitive Damages Available
Under � 102 of the Civil Rights Act of 1991, EEOC Notice No. 915.002,
(July 14, 1992) (Guidance). Briefly stated, the complainant must submit
evidence to show that the agency's discriminatory conduct directly or
proximately caused the losses for which damages are sought. Id., at 11-12,
14; Rivera v. Department of the Navy, EEOC Appeal No. 01934157 (July 22,
1994) aff'd, EEOC Request No. 05940927 (December 11, 1995). The amount
awarded should reflect the extent to which the agency's discriminatory
action directly or proximately caused harm to the complainant and the
extent to which other factors may have played a part. See Guidance
at 11-12. The amount of non-pecuniary damages should also reflect the
nature and severity of the harm to complainant, and the duration or
expected duration of the harm. Id., at 14.
Complainant presented testimony by himself and his wife regarding
the alleged harm he suffered. He indicated that his reputation was
damaged, he filed for bankruptcy, and was diagnosed with Major Depressive
Disorder listing all the physical symptoms of that condition. However,
AJ2 determined that complainant's testimony lacked credibility and that
the picture painted by his wife did not match the persona complainant
presented at the hearing. Further, AJ2 found that other factors such as
the union's attempts to collect $ 13,000 from complainant and his attempt
to get a credit card under another name were also part of the alleged
harm and that these events could not be connected to the agency's action.
Complainant also argued that AJ2's determination on compensatory damages
was an attempt by AJ2 to circumvent the finding of discrimination by AJ1.
As noted above, AJ2's findings on credibility were completely appropriate
based on the record developed at the hearing on compensatory damages.
We do not find that AJ2 circumvented the finding of discrimination.
AJ2 made his determination regarding compensatory damages based on
complainant's failure to present sufficient, plausible evidence to
establish that the harm alleged was due to the discriminatory action.
Specifically, AJ2 determined that complainant lacked credibility
as noted above. Additionally, AJ2 found that complainant's wife's
testimony regarding complainant was inconsistent with the person
complainant presented at the hearing. Therefore, AJ2 discredited the
wife's testimony as well. Based on these credibility determinations,
AJ2 concluded that complainant was only entitled a nominal amount,
namely $ 500.00. Upon our review of the record and AJ2's findings on
credibility, we determine that this award is appropriate. See Gross
v. United States Postal Serv., EEOC Appeal No. 01980733 (November 19,
1999) (awarding $750 for non-pecuniary damages for a discriminatory Notice
of Removal based on, among other things, complainant's lack of evidence
and inconsistencies within the record); see also Bowman v. Department of
Commerce, EEOC Appeal No. 07A20054 (March 17, 2003) (denying compensatory
damages based on inconsistencies in statements made at the hearing by
complainant and individuals who knew complainant for a number of years).
Attorney's Fees and Costs
The Commission may award complainant reasonable attorney fees and other
costs incurred in the processing of a complaint regarding allegations
of discrimination in violation of Title VII. 29 C.F.R. � 1614.501(e).
A finding of discrimination raises a presumption of entitlement to an
award of attorney's fees. Id. Attorney's fees shall be paid for services
performed by an attorney after the filing of a written complaint. Id.
As to the amount determined by AJ2, an award of attorney's fees
is determined by calculating the lodestar, i.e., by multiplying a
reasonable hourly fee times a reasonable number of hours expended. Hensley
v. Eckerbart, 461 U.S. 424 (1983); 29 C.F.R. � 1614.501(e)(2)(ii)(B).
There is a strong presumption that the number of hours reasonably expended
multiplied by a reasonable hourly rate, 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). The
circumstances under which the lodestar may be adjusted are extremely
limited, and are set forth in EEO Management Directive 110 (MD-110)
(November 9, 1999). A fee award may be reduced: in cases of limited
success; where the quality of representation was poor; the attorney's
conduct resulted in undue delay or obstruction of the process; or where
settlement likely could have been reached much earlier, but for the
attorney's conduct. MD-110, at p. 11-7. The party seeking to adjust
the lodestar, either up or down, has the burden of justifying the
deviation. Id. at p. 11-8.
Reasonable Hourly Fees
Based on the CA1 and CA2's submission to AJ2 providing their hourly
rate, AJ2 determined that $ 150.00 for the prevailing market of Jackson,
Mississippi. We note that the attorneys provided the prevailing rate
for Baltimore, Maryland, rather than the market in which complainant
resides or where the hearing on compensatory damages was heard, namely
in Birmingham, Alabama. CA1 stated that he has been practicing in
the fields of employment law and personal injury since 1995, when
he graduated from law school. CA2 did not provide any information
regarding his legal experience beyond the hourly rates he received
pursuant to arbitration awards and settlement agreements. It should
be noted that it is unclear as to the causes of action related to the
agreements and awards. Therefore, we find that CA1 and CA2 did not
provide sufficient information to support their requested hourly rates
of $ 267.00 and $ 405.00. Therefore, we shall calculate the fees for
CA1 and CA2 based on the rates as determined by the AJ.
Reasonable Hours Expended
The AJ reduced the number of hours expended for travel time and other
excessive hours requested in the fee petition. Based on a review of the
Attorney's submission, we agree with the AJ's reductions. On appeal,
the agency does not contest the AJ's decision regarding hours expended.
We determine no basis to modify the AJ's determination of thirty (30)
hours expended. Therefore, the total fees awarded to CA1 and CA2 is
$ 4,500.00.
Costs
We note that the agency does not contest AJ2's award of costs.
Upon review, we discern no basis to alter AJ2's award of $ 1,800.00 for
services of complainant's expert witness; eight (8) travel hours at $
75.00 per hour; and $ 617.15 in travel related expenses. Accordingly,
we uphold AJ2's award of $ 3,017.15 in costs.
CONCLUSION
Therefore, after a careful review of the record, including arguments
and evidence not specifically discussed in this decision, the Commission
affirms the agency's final order implementing AJ2's decision and remands
the matter to the agency to take corrective action in accordance with
this decision and the Order below.
ORDER (C0900)
The agency is ordered to take the following remedial action:
Within thirty (30) calendar days of the date of this decision is final,
the agency shall issue complainant compensatory damages in the amount
of $ 500.00; and
Within thirty (30) calendar days of the date this decision is final,
the agency shall issue CA1 and CA2 fees in the amount of $ 4,500.00
and costs in the amount of $ 3,017.15.
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.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0501)
Compliance with the Commission's corrective action is mandatory.
The agency shall submit its compliance report within thirty (30)
calendar days of the completion of all ordered corrective action. The
report shall be submitted to the Compliance Officer, Office of Federal
Operations, Equal Employment Opportunity Commission, P.O. Box 19848,
Washington, D.C. 20036. The agency's report must contain supporting
documentation, and the agency must send a copy of all submissions to
the complainant. If the agency does not comply with the Commission's
order, the complainant may petition the Commission for enforcement
of the order. 29 C.F.R. � 1614.503(a). The complainant also has the
right to file a civil action to enforce compliance with the Commission's
order prior to or following an administrative petition for enforcement.
See 29 C.F.R. �� 1614.407, 1614.408, and 29 C.F.R. � 1614.503(g).
Alternatively, the complainant has the right to file a civil action on
the underlying complaint in accordance with the paragraph below entitled
"Right to File A Civil Action." 29 C.F.R. �� 1614.407 and 1614.408.
A civil action for enforcement or a civil action on the underlying
complaint is subject to the deadline stated in 42 U.S.C. 2000e-16(c)
(1994 & Supp. IV 1999). If the complainant files a civil action, the
administrative processing of the complaint, including any petition for
enforcement, will be terminated. See 29 C.F.R. � 1614.409.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
The Commission may, in its discretion, reconsider the decision in this
case if the complainant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. The appellate decision involved a clearly erroneous interpretation
of material fact or law; or
2. The appellate decision will have a substantial impact on the policies,
practices, or operations of the agency.
Requests to reconsider, with supporting statement or brief, must be filed
with the Office of Federal Operations (OFO) within thirty (30) calendar
days of receipt of this decision or within twenty (20) calendar days of
receipt of another party's timely request for reconsideration. See 29
C.F.R. � 1614.405; Equal Employment Opportunity Management Directive for
29 C.F.R. Part 1614 (EEO MD-110), 9-18 (November 9, 1999). All requests
and arguments must be submitted to the Director, Office of Federal
Operations, Equal Employment Opportunity Commission, P.O. Box 19848,
Washington, D.C. 20036. In the absence of a legible postmark, the
request to reconsider shall be deemed timely filed if it is received by
mail within five days of the expiration of the applicable filing period.
See 29 C.F.R. � 1614.604. The request or opposition must also include
proof of service on the other party.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely, unless extenuating circumstances
prevented the timely filing of the request. Any supporting documentation
must be submitted with your request for reconsideration. The Commission
will consider requests for reconsideration filed after the deadline only
in very limited circumstances. See 29 C.F.R. � 1614.604(c).
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (S0900)
You have the right to file a civil action in an appropriate United States
District Court within ninety (90) calendar days from the date that you
receive this decision. If you file a civil action, you must name as
the defendant in the complaint the person who is the official agency head
or department head, identifying that person by his or her full name and
official title. Failure to do so may result in the dismissal of your
case in court. "Agency" or "department" means the national organization,
and not the local office, facility or department in which you work. If you
file a request to reconsider and also file a civil action, filing a civil
action will terminate the administrative processing of your complaint.
RIGHT TO REQUEST COUNSEL (Z1199)
If you decide to file a civil action, and if you do not have or cannot
afford the services of an attorney, you may request that the Court appoint
an attorney to represent you and that the Court permit you to file the
action without payment of fees, costs, or other security. See Title VII
of the Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e et seq.;
the Rehabilitation Act of 1973, as amended, 29 U.S.C. �� 791, 794(c).
The grant or denial of the request is within the sole
discretion of the Court. Filing a request for an attorney does not
extend your time in which to file a civil action. Both the request and
the civil action must be filed within the time limits as stated in the
paragraph above ("Right to File A Civil Action").
FOR THE COMMISSION:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
December 16, 2004
__________________
Date