01976913
06-29-2000
Ahmad Parvin, Complainant, v. Togo D. West, Jr., Secretary, Department of Veterans Affairs, Agency.
Ahmad Parvin v. Department of Veterans Affairs
01976913
June 29, 2000
Ahmad Parvin, )
Complainant, )
) Appeal No. 01976913
v. ) Agency Nos. 92-1299; 94-0181;
) 94-0889; 96-0753
Togo D. West, Jr., ) Hearing Nos. 160-96-8047X;160-96-8048X;
Secretary, ) 160-96-8527X
Department of Veterans Affairs, )
Agency. )
)
DECISION
Complainant timely initiated an appeal of a final agency decision (FAD)
concerning his equal employment opportunity (EEO) complaint of unlawful
employment discrimination on the bases of national origin (Iranian),
religion (Muslim) and reprisal (prior EEO activity), in violation of Title
VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e et
seq.<1> The appeal is accepted in accordance with EEOC Order No. 960.001.
For the following reasons, the agency's decision is MODIFIED AND REMANDED.
BACKGROUND
The record reveals that during the relevant time, complainant was
employed as the Chief of Radiology at the agency's Castle Point, New
York, Medical Center. On June 5, 1992, complainant filed his first
EEO complaint with the agency (No. 92-1999), alleging that due to
his national origin: (1) he was insulted by the Chief of Staff (COS)
(Canadian) at the Medical Staff meeting on January 8, 1992; (2) his
1991-1992 evaluation was delayed by the COS until April 1992 and then
was unfairly low; (3) on May 10, 1992, he was subjected to a harassing
telephone call by the COS at his (complainant's) home; (4) on June 1,
1992, the COS threatened to fire him; and (5) the COS bypassed complainant
and undermined his supervisory authority. On August 24, 1993, complainant
filed a second complaint with the agency (No. 94-0181), alleging that
due to retaliation and discrimination based on his religion and national
origin, the COS relieved him of his duties and detailed him to the Office
of the Chief of Staff. On December 17, 1993, complainant was informed
that his employment with the agency was terminated, and this was the
basis for complainant's third complaint with the agency (No. 94-0889)
on January 7, 1994, again alleging discrimination and retaliation.
Based on a decision from the agency's Disciplinary Appeals Board (DAB),
complainant was reinstated to his former position of Chief of Radiology
at the facility in 1995, but only after taking an interim position in
Virginia in mid-1993 which caused him to be separated from his family.
Upon complainant's return to the facility, complainant alleged that the
COS failed to implement the Order of the DAB and thereby hindered his
ability to perform his position. As such, complainant filed a fourth
complaint with the agency (No. 96-0753).
Regarding complainant's first EEO complaint, the Commission ultimately
overturned the agency's FAD finding no discrimination and concluded
that complainant had indeed proven direct evidence of national origin
discrimination by the COS. Parvin v. Dept. of Veterans Affairs, EEOC
Appeal No. 01940366 (September 1, 1994), reversed on reconsideration, EEOC
Appeal No. 05950017 (June 20, 1996). In its decision on reconsideration,
the Commission found that as the same actions regarding complainant's
performance would have been taken absent the discrimination, the
relief permitted was limited, and thus, the agency was not obligated
to pay compensatory damages, or be subject to any order requiring
backpay or reinstatement, but that attorney's fees were appropriate.
The Commission's decision on reconsideration was then clarified on
complainant's petition for clarification. The Commission found that
despite complainant's reinstatement into his previous position by the DAB,
further relief was unavailable unless a separate finding of discrimination
was made in the EEO process regarding complainant's removal. Parvin
v. Dept. of Veterans Affairs, EEOC Petition No. 04960027 (July 11, 1997).
The three remaining allegations were consolidated and, following a
hearing, the Administrative Judge (AJ) issued a Recommended Decision
(RD), which concluded that based on an adverse inference regarding
the agency's non-compliance with complainant's discovery requests, a
default judgement against the agency on all three pending complaints was
appropriate. Due to the findings of discrimination resulting from the
default judgement, the AJ recommended complainant's full reinstatement,
with costs, expenses, attorney's fees and compensatory damages from the
three pending cases. On March 18, 1997, the agency issued a decision
stating that it intended to adopt, reject and clarify, in part, the AJ's
RD, but declined to award backpay to complainant and asked him to submit
further evidence regarding attorney's fees and compensatory damages.
The agency awarded complainant $19,213.00 in gross pecuniary losses and
$15,000.00 for non-pecuniary losses, for a gross total award of damages
of $34,213.00 for his three pending complaints, but noted that its
decision would not become final until attorney fees had been awarded.
Complainant provided the agency with information on attorney's fees
as well as additional information and clarification of his statement in
support of compensatory damages. The agency then awarded attorney fees
of $28,251.15 for work performed on complainant's three latter claims.
Based on the AJ's findings of discrimination, the agency issued a
supplemental FAD dated September 29, 1997, regarding the issue of
compensatory damages and attorney fees on complainant's initial claim.
Complainant requested a total of $25,000.00 in compensatory damages and
$19,733.43 in attorney's fees and costs on the initial claim, but the
agency found that he was entitled to $1,000.00 in compensatory damages
for the actions of the COS in 1992, and $12,485.80 in attorney's fees
regarding his initially filed claim. In justifying the $1,000.00 in
compensatory damages, the agency noted that although complainant's claim
was that he was distressed by criticism and intimidation by the COS, there
was no concrete personnel action involved, and the facts demonstrated
that the COS was warranted in criticizing complainant. The FAD also
authorized payment of all compensatory damages and attorney's fees
which had previously been determined in the FAD dated March 18, 1997.
Complainant appeals the agency's FAD on the issues of compensatory
damages and attorney's fees and makes numerous arguments concerning his
assertion that the agency incorrectly reduced his attorney's fees award
and incorrectly calculated his award of pecuniary and non-pecuniary
compensatory damages.<2> The agency requests that we affirm its FAD.
ANALYSIS AND FINDINGS
I. Compensatory damages
Complainant alleges that the agency's award of compensatory damages in
his four claims was inadequate and the evidence supports an award of
$225,000.00 of non-pecuniary damages for his four claims. While the
agency fragmented the claims and awarded complainant $15,000.00 in
non-pecuniary damages for the agency's actions in the latter three claims
and subsequently awarded him $1,000.00 in non-pecuniary damages for the
actions of the COS alleged in the first claim, the Commission declines
to address the issue of compensatory damages in this fragmented manner.
As such, we will consider all four of complainant's claims as a whole
and award a single amount of compensatory damages for the pattern of
discriminatory conduct by the agency.
Section 102(a) of the 1991 Civil Rights Act authorizes an award
of compensatory damages for all post-Act pecuniary losses, and for
nonpecuniary 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. In this regard,
the Commission has authority to award such damages in the administrative
process. See West v. Gibson, 527 U.S. 212 (1999). Compensatory damages
do not include back pay, interest on back pay, or any other type
of equitable relief authorized by Title VII. To receive an award of
compensatory damages, a complainant must demonstrate that he 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. Rivera v. Department of the Navy, EEOC Appeal No. 01934157
(July 22, 1994), req. for reconsid. denied, EEOC Request No. 05940927
(December 11, 1995); 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). A complainant is required to provide evidence
that will allow an agency to assess the merits of a complainant's request
for emotional distress damages. See Carle v. Department of the Navy,
EEOC Appeal No. 01922369 (January 5, 1993).
Applying the above legal standards, we find that complainant has submitted
sufficient unrebutted evidence to establish that he suffered emotional
harm as a result of the agency's continuing pattern of discrimination.
The record reflects that complainant testified as to the effect the
discrimination had on his mental health and family life. Complainant
testified that due to his treatment by the COS in 1992, he experienced
stress at home and at work, and interference with the enjoyment of life
in general. The record establishes that the injuries sustained by
complainant from the agency's conduct in detailing him to the Office
of the Chief of Staff resulted in depression, loss of self-esteem
and emotional distress.<3> In addition, complainant stated that his
termination from the agency resulted in anger, pain, marital problems,
anxiety about his family's financial predicament, embarrassment and
doubts about his self-worth. Complainant testified that he was on the
brink of a nervous breakdown during the time he relocated to Virginia in
1993-1995 due to his separation from his family and related pressures.
We also find that complainant's wife credibly testified that there was an
increased strain on their marriage and that complainant became pressured,
depressed, confused and anxious. We find that this uncontroverted
evidence establishes complainant's entitlement to compensatory damages.
See Sinott v. Department of Defense, EEOC Appeal No. 01952872 (September
19, 1996)(stating that an complainant's own testimony, along with the
circumstances of a particular case, can establish mental or emotional
harm).
However, while we find complainant's testimony credible regarding his
harassing treatment by the COS and the effects on his mental health,
we also find that this evidence does not rise to the level of severity
meriting a large nonpecuniary award. The Commission generally awards
large nonpecuniary awards in cases where an complainant establishes severe
emotional harm and/or a long-term injury. See Finlay v. United States
Postal Service, EEOC Appeal No. 01942985 (April 29, 1997) ($100,000 in
nonpecuniary damages for severe psychological injury over four years which
was expected to continue for an indeterminate period of time); Wallis
v. United States Postal Service, EEOC Appeal No. 01950510 (November 13,
1995)($50,000.00 in nonpecuniary damages for aggravation of pre-existing
emotional condition). In the instant case, while complainant credibly
testified that he suffered emotional distress and marital problems due
to the discrimination and relocation to Virginia for eighteen months,
his psychological injury has not been proven to be severe and apparently
ended upon his return to New York. Furthermore, there is no evidence
in the record indicating that complainant's emotional distress was
sufficiently severe that he was required to seek medical care.
Several Commission decisions have awarded compensatory damages which
involved a pattern or series of discriminatory events over time, and have
involved emotional distress symptoms similar to complainant's. Feris
v. Environmental Protection Agency, EEOC Appeal No. 01983167 (September
18, 1998)($35,000 for anger, anxiety, damage to self-esteem, and
sleeplessness due to agency's repeated failure to provide sign language
interpreter as an accommodation); Willena v. Department of Interior,
EEOC Appeal No. 01961812 (June 18, 1992) ($35,000 for frustration and
anger which led to irritability, due to race and reprisal discrimination
when she received unfair work assignments, a fully successful performance
rating and subjected to harassment); Olsen v. Department of Defense, EEOC
Appeal No. 01956675 (July 29, 1998) ($16,000 for depression, anxiety,
sleep deprivation, worry, marriage and family problems, due to a pattern
of reprisal and age discrimination, when he was given a low rating on his
performance evaluation which downgraded his promotional potential, and
was not selected for a position). After consideration of the evidence of
record and consideration of past Commission decisions in cases similar to
complainant's, we find that the evidence presented by complainant supports
his claim for compensatory non-pecuniary damages in the amount of $35,000.
Complainant has also claimed entitlement to $44,573.00 in pecuniary losses
for the latter three claims, as due to his termination he was forced
to relocate to Virginia until he was reinstated after eighteen months.
The FAD found that complainant was entitled to a total of $19,213.00 in
pecuniary losses for all of his complaints. Complainant initially stated
that he was forced to move several times, and the agency allowed $2,000
but disallowed $1,739 in moving expenses and costs of temporary lodging
as complainant failed to provide complete receipts. The Commission finds
that complainant has not established his entitlement to the disputed
damages claimed, as he has submitted no documentation to substantiate
the moving expenses claimed. Accordingly, the Commission finds that no
part of the remaining moving expenses or temporary lodging costs may be
recovered as compensatory damages. See Canady v. Department of the Army,
EEOC Request No. 05890226 (December 27, 1989)(pecuniary losses cannot be
awarded without specific documentation to support the claimed expenses).
Complainant also claimed reimbursement for expenses related to airplane
and car travel between his temporary residence in Virginia and his
permanent residence in New York. The agency approved $3,293.00 in mileage
for car trips, but disallowed his claim for reimbursement of $4,375.00
for airplane trips as he failed to provide adequate documentation of his
travel from his temporary home to his family home. While complainant
has provided credit card statements which detail repeated airplane trips
between Roanoke, Virginia and Pittsburgh, Pennsylvania, we agree with
the agency's finding that he has failed to prove that these trips were to
his home in New York. Thus, we find that no part of his airline travel
expenses may be recovered.
In addition, the agency disallowed $10,382.00 in expenses for daily
travel in 1994 and 1995 between his temporary housing and his workplace.
The Commission agrees with the agency's denial of complainant's request
for additional travel expenses he incurred as a result of the agency's
discriminatory actions. Increased transportation expenses resulting
from complainant's termination, e.g., higher commuting costs to a
new job, are compensable. See Batieste v. Dept. of the Air Force,
Document No. 01974616 (May 26, 2000). However, complainant has
submitted no documentation to substantiate the amount of transportation
expenses claimed and thus he is not entitled to be compensated for
daily commuting expenses. Finally, complainant has claimed pecuniary
losses for additional expenses in the amount of $6,018.00, primarily for
phone, gas and electric bills incurred while he lived in Virginia for
eighteen months. While we decline to disturb the agency's approval of
$5,147.00 for these expenses, we note that complainant has provided no
documentation to substantiate expenses for the telephone or other bills
he incurred while living in Virginia and thus we cannot award further
pecuniary losses for these claimed expenses.
II. Attorney's Fees
The Commission found in its FAD that complainant was entitled to
reasonable attorney's fees on his initially filed claim. The agency
considered the fee request in the amount of $19,733.43 made by
complainant's counsel for time spent on the initial allegations, and
awarded a fee of $12,485.80.
Regarding the hourly fee requested by complainant's counsel, the agency
initially declined to award complainant's primary counsel $30.00 per hour
increases each year between 1994/95 and 1997/98. The Commission finds
that based on the "Laffey matrix," which we have found to be credible
evidence of prevailing Washington, D.C. rates for attorney's fees, an
attorney with the level of experience of complainant's primary counsel
is entitled to the hourly rates she requested. Thus, the Commission
awards the requested hourly rates of between $140.00 and $170.00 for
complainant's primary counsel. Of the hours requested by complainant's
primary counsel and her law firm's senior counsel, the agency approved
all requested except for 12.80 hours in October of 1994, and we find the
agency's determination to be reasonable. Due to our approval of increased
hourly rates for complainant's primary counsel, we approve an additional
payment for attorney's fees in the amount of $2,709.00. The agency
also approved certain costs and expenses requested by counsel where
adequate documentation was provided, but denied payment for paralegals
due to inadequate documentation. Subsequent documentation establishes
that "LLB" and "MAC" were paralegals with complainant's law firm, both
of whom worked on complainant's case between 1994 and 1997. Thus, we
approve additional payment in the amount of $1,150.00 for paralegals.
In addition, the Commission agrees with the FAD's approval of costs
for copying, fax and postage, and the FAD's denial of the law firm's
request for reimbursement for certain postage costs, phone bills, file
administration and computer research, due to inadequate documentation.
We also agree with the FAD's denial of the claimed expense of $625.00 for
legal consultation, as the necessity of this expense has not been proven.
Regarding fees for an attorney who represented complainant in the earlier
stages of No. 92-1999, the agency noted his request for $175.00 per hour,
but found that his fee agreement with complainant provided for $125.00
per hour and counsel did not produce evidence that he routinely discounts
fees for federal sector EEO complainants. After a review of the record,
we agree with the agency that the attorney who represented complainant
in the early stages of the EEO process has failed to demonstrate that he
routinely discounts fees or that he customarily receives $175.00 hour
in non-federal sector EEO case work. Thus, we agree with the agency's
finding that the $125.00 hourly fee for counsel was appropriate.
CONCLUSION
Based upon a thorough review of the record, and for the foregoing reasons,
it is the decision of the Equal Employment Opportunity Commission to
MODIFY the final agency decision, and REMAND this case to the agency to
take remedial actions in accordance with this decision and ORDER below.
ORDER (D1092)
The agency is ORDERED to take the following remedial action:
1. Within thirty (30) days of the date on which this decision becomes
final, the agency shall tender to complainant additional nonpecuniary
compensatory damages in the amount of $19,000.00.
Within thirty (30) days of the date on which this decision becomes
final, the agency shall tender to the law firm of Passman and Kaplan,
SC additional attorney and paralegal fees in the amount of $3,859.00.
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, including
evidence that the corrective action has been implemented.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K1199)
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 64
Fed. Reg. 37,644, 37,659-60 (1999) (to be codified and hereinafter
referred to as 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)(Supp. V 1993). If the complainant files a civil action, the
administrative processing of the complaint, including any petition for
enforcement, will be terminated. See 64 Fed. Reg. 37,644, 37,659 (1999)
(to be codified and hereinafter referred to as 29 C.F.R. � 1614.409).
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0300)
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 64
Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter referred
to as 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 64 Fed. Reg. 37,644, 37,661 (1999) (to be codified and hereinafter
referred to as 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).
COMPLAINANTS' RIGHT TO FILE A CIVIL ACTION (R0400)
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 (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:
June 29, 2000
Date Carlton M. Hadden, Acting Director
Office of Federal Operations
1 On November 9, 1999, revised regulations governing the EEOC's federal
sector complaint process went into effect. These regulations apply to all
federal sector EEO complaints pending at any stage in the administrative
process. Consequently, the Commission will apply the revised regulations
found at 64 Fed. Reg. 37,644 (1999), where applicable, in deciding the
present appeal. The regulations, as amended, may also be found at the
Commission's website at www.eeoc.gov.
2 Complainant's counsel also argues that the agency waived its right to
contest the fees sought because it failed to issue its FAD on attorney's
fees in a timely manner. While the Commission does not condone such a
delay, an agency's delay in the issuance of a decision on attorney's
fees does not constitute a waiver of its right to challenge the
reasonableness of the claimed fees. See Thomas v. Dept. of the Navy,
EEOC Appeal No. 01985094 (July 9, 1999); Huyck v. Dept. of Defense,
EEOC Appeal No. 01952015 (October 31, 1997).
3 We note that complainant alleged that the COS discussed his detail
to the Office of the Chief of Staff in the media, which complainant
contends caused him public humiliation and damaged his reputation.
However, there is no evidence in the record to support this assertion.