0720110018
10-22-2015
Augustine S.,1 Complainant, v. Jeh Johnson, Secretary, Department of Homeland Security (Citizenship and Immigration Services), Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Augustine S.,1
Complainant,
v.
Jeh Johnson,
Secretary,
Department of Homeland Security
(Citizenship and Immigration Services),
Agency.
Appeal No. 0720110018
Hearing No. 550-2009-00077X
Agency No. HS08CIS002697
DECISION
Following its February 4, 2011, final order, the Agency filed a timely appeal which the Commission accepts pursuant to 29 C.F.R. � 1614.405(a). On appeal, the Agency requests that the Commission affirm its rejection of an EEOC Administrative Judge's (AJ) finding of discrimination in violation of Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq. The Agency also requests that the Commission affirm its rejection of the relief ordered by the AJ. For the following reasons, the Commission REVERSES the Agency's final order.
ISSUES PRESENTED
1. Whether the Commission has jurisdiction to hear the complaint;
2. Whether Complainant timely contacted an EEO Counselor;
3. Whether there is substantial evidence in the record to support the AJ's finding of discrimination;
4. If so, whether the AJ's award of remedies was appropriate.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a District Adjudications Officer at the Agency's San Francisco, California office. As a District Adjudication Officer, Complainant was required to conduct personal interviews of applicants for citizenship and naturalization status, and determine whether to grant or deny the application. Complainant worked for the Agency from 1987 until the approval of his disability retirement, on or about January 5, 2008.
On January 18, 2008, Complainant contacted an EEO Counselor and alleged discrimination on the bases of his disability and prior EEO activity when he was forced to take disability retirement, harassment, and the Agency's failure to accommodate his disability. On February 20, 2008, Complainant filed an EEO complaint alleging that the Agency discriminated against him on the basis of disability (Rheumatoid Arthritis) when2:
1. he was forced to take disability retirement, effective January 4, 2008, due to the Agency's inaction on his prior requests for reasonable accommodation;
2. he was subjected to harassment by the Agency during the November 1, 2007, through January 17, 2008, time period regarding his leave requests, and he was not given proper consideration regarding his leave during that time period; and
3. the Agency continually, in recent years, has not granted his requests for reasonable accommodation.
On May 7, 2008, the Agency accepted the complaint as a "mixed case" because Complainant alleged a matter that was appealable to the Merit Systems Protection Board (MSPB). The Agency completed its investigation on September 17, 2008.
On September 18, 2008, when more than 120 days had elapsed without the Agency issuing final decision on his complaint, Complainant filed an appeal with the MSPB claiming that he was forced to take involuntary disability retirement due to the Agency's failure to provide reasonable accommodation. On November 5, 2008, Complainant withdrew his involuntary disability retirement claim that he filed with the MSPB because he was no longer interested in returning to his prior position. On November 12, 2008, the MSPB dismissed his appeal. Complainant then contacted the EEOC and requested a hearing so that it could continue processing his disability claim.
By letter dated December 9, 2008, the Agency issued a final decision dismissing Complainant's EEO complaint because it was "inextricably intertwined" with the constructive discharge claim. Furthermore, it maintained that Complainant elected to move his case to the MSPB, which operated to terminate processing of his EEO complaint.3
On December 10, 2008, the Chief Administrative Judge at the San Francisco District Office ordered the Agency to vacate its dismissal, and provide Complainant with a copy of the Report of Investigation. The Agency filed a Motion arguing the EEOC lacked jurisdiction over the matter.
On January 20, 2009, an EEOC AJ found that he had jurisdiction over the matter because Complainant alleged a repeated failure to accommodate his disability, and timely raised the matter with an EEO Counselor. The AJ held a hearing on April 19 and May 6, 2010, and issued a decision on December 30, 2010.
In his decision, the AJ addressed the Agency's jurisdictional arguments and disagreed with its suggestion that the failure to accommodate was intertwined with the constructive discharge, which had been appealed to the MSPB and withdrawn. The AJ noted that the EEOC retained jurisdiction over matters that were not within the jurisdiction of the MSPB, even if the claim alleged other matters with issues that fall within the MSPB's jurisdiction.
The AJ then proceeded to address the merits of the complaint. In his decision, the AJ made findings of fact dating back as far as 1998, when Complainant had been diagnosed with Rheumatoid Arthritis (RA). The record revealed Complainant took approximately six months off when he was initially diagnosed. When he returned to work, and he provided medical documentation about his condition, and requested more flexible work arrangements, but the AJ found that the Agency did not respond to these requests. The AJ also noted that in 2001, Complainant was terminated for having tested positive for using marijuana, when he began taking hemp seed oil-based products to ease the effects of his RA. In 2001, the Agency ultimately rescinded the removal, reinstated him, and requested that he provide information regarding his accommodation needs.
The AJ found that, over the next decade, Complainant responded to the Agency's various requests for medical documentation, but the Agency failed to engage in a meaningful interactive process with him. In 2001, Complainant requested that he be limited to no more than 70 percent of his regular performance duties and restricted from running, lifting more than 15 pounds, and excessive keyboarding, walking, standing, writing, or sitting. The AJ found that in March 2002, Complainant requested a number of accommodations that would allow him to minimize the stress on his joints; specifically, a duty-station close to the waiting room, voice recognition software, rest opportunities, the ability to remain standby during fire drills, and a reduced workload. The AJ found that, instead of meaningfully responding to the requests, the Agency continually requested additional medical support for the requests.
Contrary to the Agency's position, the AJ found that Complainant was, in fact, responsive to its request for medical documentation. The AJ found that the Agency failed to provide any response to Complainant's requests for reasonable accommodation until July 2, 2002, when it issued him an authorization to work "temporary light duty." In that assignment, Complainant would process certain types of applications, perform no more than 12 interviews per day, and run Interagency Border Inspection Service (IBIS) checks. Further, he was only required to walk twenty feet to call each applicant from the waiting room.
However, the AJ noted that the Agency did not comply with the terms of the light-duty assignment and, as a result, Complainant was required to work outside of the description of the assignment. Complainant performed more typing and interviews than anticipated, which caused him much pain. Further, the Agency denied his request for voice activated software, and made no effort to reduce the walking portion of his job. The AJ found that Complainant voiced his concerns that he was not being accommodated by the Agency's actions, but the Agency did not respond.
In November 2002, the Complainant's District Director requested that Complainant undergo an independent medical examination, which would be conducted by an Agency-appointed medical specialist. On January 5, 2003, the Agency's physician reported to the Agency:
[The d]isease is active enough that it will affect his performance in his position as District Adjudication Officer and all the restrictions and accommodations requested by him are deemed appropriate and warranted. This disease can become progressive and crippling and needs to be addressed immediately. He may suffer harm if he is not restricted or accommodated as requested.
The AJ found the Agency never discussed the report with Complainant, and did not implement it in any way. He further recounted that no managers recalled receiving the report, even though it was conducted at the Agency's request.
In 2004, Complainant's branch moved to a different floor, which required him to walk more on a day-to-day basis. The AJ found no evidence that anyone discussed the increase in walking with Complainant, despite the fact that he had been using a cane for several years. Further, although Complainant initially had been excused from attending the Oath of Citizenship Ceremonies, which involved long periods of standing in a crowded auditorium, Complainant's new supervisor required him to attend the ceremony.4 The AJ found that Complainant objected to attending the Oath of Citizenship Ceremony, but his requests were denied or ignored.
Due to the pain caused by his condition, Complainant was unable to work any longer, and applied for disability retirement in 2006. Initially, the Agency objected to his retirement, stating that Complainant had been accommodated. Complainant went out on leave in October 2007 to have neck surgery. The Office of Personnel Management approved his disability retirement in January 2008.
The AJ found that Complainant had demonstrated that he was a qualified individual with a disability, as his RA caused pain and swelling, which required him to walk with a cane as of the year 2000. The AJ found Complainant was substantially limited in caring for himself, and that normal activities such as running, kneeling, or keyboarding caused "flare ups" of his condition. The AJ determined that Complainant's testimony was credible and corroborated by his physicians, as well as by the Agency's own physician.
The AJ concluded that the Agency failed to engage in any meaningful interactive process to accommodate Complainant. Instead, the Agency, for the most part, ignored Complainant's needs, even when presented with the report of its own doctor. The AJ found, moreover, that the Agency's failure to accommodate Complainant was done in bad faith, and resulted in a hostile work environment. No manager, other than perhaps one, ever engaged in any type of interactive process with Complainant to find out how the Agency could accommodate his needs. The AJ found that any attempt to limit Complainant's keyboarding and interview requirements was insufficient. The AJ found that Agency officials were evasive, not credible, and generally misinformed about their responsibilities under the Rehabilitation Act.
The AJ found that, as a result of the Agency's inaction and avoidance, Complainant's condition progressed significantly, and he began to suffer from severe neurological depression, increased inflammation, and pain and swelling in his joints, as well as a diminution in his heart's ability to function properly.
As relief, the AJ ordered back pay calculated from the last day of work until the day the decision was issued, offset by Complainant's disability benefits, and augmented by compensation for tax consequences as a result of the back pay award. The AJ also awarded Complainant front pay because the Agency's actions rendered him physically unable to work. The AJ awarded Complainant front pay from the date his back pay ends until the date of his 65th birthday, June 3, 2013. The AJ also awarded Complainant $250,000 in non-pecuniary compensatory damages for emotional and physical harm caused by the discrimination, and attorney's fees and costs in the amount of $83,125.
The Agency subsequently issued a final order rejecting the AJ's finding that Complainant proved that the Agency subjected him to discrimination as alleged.
CONTENTIONS ON APPEAL
On appeal, the Agency contends that the AJ did not have jurisdiction to hear the complaint. The Agency's representative recounts that Complainant contacted an EEO Counselor, but then filed an appeal with the MSPB after 120 days had passed without receiving a final decision. The Agency points out that Complainant's withdrawal of the matter from the MSPB terminated the processing of the EEO complaint, as the decision to file the appeal with the MSPB was a binding election which could not be undone.
The Agency also claims that the AJ erred in considering facts that occurred from August 1999 until January 5, 2002, as they were covered by a previously filed, and withdrawn, EEO complaint. The Agency asserts that, in fact, the entire EEO complaint in the instant appeal should be dismissed for untimely EEO contact. In this regard, the Agency maintains that Complainant's alleged failure to accommodate claim ended on October 27, 2007, but that he did not contact an EEO Counselor until January 18, 2008.
As to the merits of the complaint, the Agency contends that Complainant was assigned minimal duties, which required fewer keystrokes than his co-workers. It asserts that Agency supervisors properly relied on the advice of the Labor Management Relations Specialist and engaged in an interactive process by requesting medical documentation from Complainant that would support his accommodation requests. The Agency maintains, however, that Complainant's physician was not forthcoming in fulfilling its requests. The Agency notes that, in July 2002, it did accommodate Complainant by providing him with light-duty assignments, but that it was unable to provide the voice-activated software requested due to the antiquated computers that the Agency used. The Agency states that it provided Complainant with a larger computer monitor with enlarged fonts, and that he was assigned to a table position during oath ceremonies. The Agency maintains that it complied with Complainant's physician's requests that he not stand for more than four hours. Moreover, it asserts that Complainant never complained about the standing he allegedly needed to do at oath ceremonies. Likewise, the Agency contends that Complainant did not have excessive walking when retrieving applicants from the waiting room.
With respect to remedies, the Agency contends that the AJ erred in awarding compensatory damages, back pay, and front pay. The Agency argues that there was no evidence of bad faith, which is required prior to an award of compensatory damages for a denial of accommodation claim. The Agency further argues that Complainant is not entitled to back pay because he was not ready, willing and able to work. Finally, the Agency argues that Complainant is not entitled to front pay where he applied, and was approved, for disability retirement.
In response, Complainant states that he filed an EEO complaint, but was then advised by the Agency that his case was a "mixed case" and he was required to file an appeal with the MSPB. Once he learned of the MSPB jurisdiction standards, and that reinstatement was the only relief he could achieve at the MSPB, he withdrew his claim of involuntary retirement and requested an EEOC hearing. Complainant states that the EEOC did properly have jurisdiction over the complaint, because the failure to accommodate issues described arose long before his retirement, and that the EEOC (not the MSPB) has jurisdiction over these matters. Complainant contends that when the MSPB lacks jurisdiction, the case becomes non-mixed, and is processed accordingly. Complainant states that he withdrew his involuntary retirement claim, and contends that his case is analogous to Blount v. Department of Homeland Security, EEOC Appeal No. 0720080010 (October 21, 2009). There, as here, the claim was not a constructive discharge claim so much as "more properly classified as a denial of reasonable accommodation resulting in the inability to work."
Complainant contends that there is substantial evidence in the record to support the AJ's finding that the Agency failed to accommodate his disability. He further notes that the Agency did not contest the amount of the compensatory damages award, only arguing that no award is appropriate because there has been no showing of bad faith. Complainant maintains that the AJ's finding of bad faith is supported by the evidence, which reveals that the Agency ignored Complainant's medical needs, and acted contrary to the recommendations of its own medical specialist.
ANALYSIS AND FINDINGS
Procedural Arguments
As an initial matter, we address the jurisdictional questions raised by the Agency. The record reveals that, on January 18, 2008, Complainant contacted an EEO Counselor and on February 20, 2008, filed his formal EEO complaint. The Agency conducted an investigation, but then Complainant, pursuant to the Agency's instructions, filed an appeal with the MSPB. Once learning of the jurisdictional requirements of the MSPB, Complainant withdrew his MSPB appeal and requested that the EEO process continue.
Although the Agency argues that Complainant made a binding election to pursue the matter with the MSPB which operated to terminate processing of his failure to accommodate allegations, we disagree. Here, the record reveals Complainant initially elected to pursue through the EEO process matters that were within the Commission's jurisdiction. Although Complainant later filed an appeal with the MSPB, and subsequently withdrew the only claim which could have been appealed to the MSPB, his failure to accommodate claim was properly heard before the EEOC AJ. See Blount v. Department of Homeland Security, EEOC Appeal No. 0720070010, (October 21, 2009), req. for recon. denied, EEOC Request No. 0520100148 (Apr. 16, 2010).
In Blount, the complainant suffered a stroke, and requested to work at home (as others had) as an accommodation. The AJ in that case found that the agency failed to engage in the interactive process, and ultimately denied the request, which culminated in the complainant taking disability retirement. The EEOC AJ retained jurisdiction over the whole claim, including the constructive discharge claim, because it was "inextricably intertwined" with the denial of accommodation, and a remand to the MSPB would cause undue delay.
On appeal, the Commission agreed that the constructive discharge claim was intertwined with the reasonable accommodation claim; however, it also found the claim was more appropriately characterized as a denial of accommodation which resulted in an inability to work. In other words, the complainant's inability to work was not a separate action; but rather, a direct consequence of the agency's failure to accommodate. See Blount, EEOC Appeal No. 0720070010. As relief, the AJ awarded the complainant back pay, reinstatement with an accommodation, and $200,000 in compensatory damages.
Complainant in the instant action, like the complainant in Blount, alleged a repeated denial of accommodation over an extended period of time which culminated in disability retirement due to his inability to work. The consequence, therefore, of the Agency's failure to accommodate was Complainant's inability to work. Accordingly, the AJ's finding of jurisdiction was appropriate.
We likewise find that the Agency's timeliness arguments are without merit. Complainant went out on leave for surgery in October 2007, but had his disability retirement approved in January 2008. He subsequently contacted an EEO Counselor on January 18, 2008. We find the denial of accommodation and other claims were timely raised once he became unable to work (as a result of the Agency's continuing failure to accommodate) in January 2008. The Agency also claims that certain matters were part of a prior EEO complaint and should not have been considered by the AJ. With respect to any prior matters which were the subject of a prior complaint, we find that the AJ properly considered those matters as background evidence.
Failure to Accommodate
Pursuant to 29 C.F.R. � 1614.405(a), all post-hearing factual findings by an AJ will be upheld if supported by substantial evidence in the record. Substantial evidence is defined as "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Universal Camera Corp. v. National Labor Relations Board, 340 U.S. 474, 477 (1951) (citation omitted). A finding regarding whether or not discriminatory intent existed is a factual finding. See Pullman-Standard Co. v. Swint, 456 U.S. 273, 293 (1982). An AJ's conclusions of law are subject to a de novo standard of review, whether or not a hearing was held.
An AJ's credibility determination based on the demeanor of a witness or on the tone of voice of a witness will be accepted unless documents or other objective evidence so contradicts the testimony or the testimony so lacks in credibility that a reasonable fact finder would not credit it. See EEOC Management Directive for 29 C.F.R. � 1614 (MD-110), Chapter 9, at � VI.B. (August 5, 2015).
After a careful review of the record, including arguments and evidence not specifically discussed in this decision, we discern no basis to disturb the AJ's finding of discrimination based on disability. In order to establish that the Agency denied Complainant a reasonable accommodation, Complainant must show that: (1) he is an individual with a disability, as defined by 29 C.F.R. � 1630.2(g); (2) he is a qualified individual with a disability pursuant to 29 C.F.R. � 1630.2(m); and (3) the Agency failed to provide a reasonable accommodation.
Having found that Complainant is an individual with a disability within the regulatory definition, we next consider whether he is a qualified individual with a disability. A qualified individual with a disability is one "who, with or without reasonable accommodation, can perform the essential functions of the position in question ... and who ... [m]eets the experience and/or educational requirements for the position." 29 C.F.R. �1614.203(a)(6).
The Agency does not dispute that Complainant is a qualified individual with a disability. The Rehabilitation Act of 1973 prohibits discrimination against qualified disabled individuals with a disability. See 29 C.F.R. � 1630.
Under the Commission's regulations, an Agency is required to make reasonable accommodation to the known physical and mental limitations of a qualified individual with a disability unless the Agency can show that accommodation would cause an undue hardship. See 29 C.F.R. �� 1630.2(o) and (p). The AJ's decision recounts Complainant's repeated attempts to have the Agency accommodate his disability. On appeal, the Agency essentially attempts to restate the facts which have already been considered before an EEOC AJ. We find this unpersuasive given how much of the AJ's decision was based on credibility determinations. After a careful review of the record, we find there is substantial evidence in the record to support the AJ's finding that Complainant sought various accommodations from the Agency, and was largely ignored.
Specifically, we find the Agency failed to significantly reduce Complainant's typing requirement, or assist him with the walking that was required of his position. When the Agency did attempt to provide him with a light-duty position, there was no compliance. Even though the record establishes that Complainant complained that the accommodation attempts were not sufficient, his complaints went unanswered. The most egregious event occurred after the Agency subjected Complainant to an independent medical examination, but then did not even comply with the recommendations of its own physician. The record further reveals that, although Complainant initially was excused from attending the crowded Oath of Citizenship Ceremonies, this decision was later reversed and Complainant was required to attend the ceremony despite voicing his objection and asking for assistance. Ultimately, Complainant's condition deteriorated so much that he could no longer work. Accordingly, we find the Agency is liable for its failure to accommodate, which resulted in a hostile work environment and led to Complainant's inability to work.
Remedies
Back Pay
The AJ found that, because of the Agency's repeated inaction, bad faith, and failure to accommodate, Complainant essentially was forced off the job by the time he applied for disability retirement in 2006. Accordingly, the AJ found that Complainant was entitled to back pay, and additional compensation for any tax consequences resulting from the back pay award. We agree with the AJ's finding that Complainant was forced off the job and had no choice but to apply for disability retirement because of the Agency's failure to accommodate his disability. An award of back pay is appropriate under these circumstances. Blount, EEOC Appeal No. 0720070010; see also Bartron v. Department of Defense, EEOC Appeal No. 0720100054, req. for recon. denied, EEOC Request No. 0520110399 (Aug. 26, 2011) (award of reinstatement and back pay appropriate where disability retirement flowed from agency's failure to accommodate). Here, we find no evidence that Complainant would have sought retirement but for the Agency's failure to accommodate his disability. See Payne v. Dep't of Veterans Affairs, EEOC Appeal No. 01A42405 (Aug. 24, 2004) (back pay awarded when agency offered no evidence complainant would have sought retirement if agency had provided reasonable accommodation for disability). The record reveals that Complainant remained at work until October 2007, when he went out on leave. His retirement was approved January 5, 2008. Accordingly, we will order the Agency to pay back pay in accordance with the Order below. The back pay period shall be the effective date of Complainant's retirement on January 5, 2008 until the date Complainant accepts or rejects reinstatement back into his position, or once its determined that he cannot be accommodated in the position.
Front Pay
In his decision, the AJ awarded Complainant front pay until his 65th birthday, June 3, 2013. The AJ found that the Agency was liable for front pay because, had the Agency accommodated Complainant, he could have worked indefinitely. Moreover, Complainant contends that his failure to return to work was due directly to the Agency's resistance to its reasonable accommodation responsibilities.
In general, reinstatement is preferred to an award of front pay. Romeo v. Dep't of the Air Force, EEOC Appeal No. 01921636 (July 13, 1992). Front pay is a form of equitable relief that compensates an individual when reinstatement is not possible in certain limited circumstances. The Commission has identified three circumstances where front pay may be awarded in lieu of reinstatement: (1) where no position is available; (2) where a subsequent working relationship between the parties would be antagonistic; or (3) where the employer has a record of long-term resistance to anti-discrimination efforts. See Tyler v. U.S. Postal Serv., EEOC Request No. 05970340 (Feb. 1, 1998). Awards of front pay imply that the complainant is able to work but cannot do so because of circumstances external to the complainant. See Goetze v. Dep't of the Navy, EEOC Appeal No. 01991530 (Aug. 22, 2001).
On appeal, the Agency contends that Complainant is not entitled to front pay because he applied for disability retirement and is physically unable to work. We have previously determined that, in order for an individual to be eligible for an award of front pay, the individual must be available to work. See Finlay v. U.S. Postal Service, EEOC Appeal No. 01942985 (Apr. 30, 1997); York v. Dep't of the Navy, EEOC Appeal No. 01930435 (Feb. 25, 1994). After a review of the record, we find that the AJ erred when he awarded Complainant front pay, as there is no evidence Complainant is physically capable of working. The decisions cited by Complainant and the AJ referred to instances where the complainant was able to return to work if accommodated. Here, there is no evidence that Complainant could return to work at this point. Accordingly, we deny Complainant's request for front pay.
Compensatory Damages
After a review of the evidence and Commission precedent, the AJ in this case awarded Complainant $250,000 in non-pecuniary damages for both the emotional and physical harm he suffered as a result of the Agency's actions. In calculating this award, the AJ found that Complainant suffered both psychologically and physically due to the Agency's inaction, which lasted almost an entire decade. The AJ found that, as a result of the Agency's failure to accommodate, Complainant was diagnosed with depression, which was then aggravated by the Agency's continued inaction. Complainant ultimately began taking prescription medication to ameliorate the effects of his depression. The discriminatory treatment continued when the Agency repeatedly requested medical documentation from Complainant, and then ignored it. The AJ found Complainant also suffered from sleep disturbances, was withdrawn and became fearful of others. The AJ found that Complainant offered "compelling and credible" testimony, which was not rebutted by the Agency. AJ Decision at p. 34.
As for the physical harm, the AJ found that Complainant suffered from excruciating joint pain and swelling caused by the Agency's failure to excuse him from Oath Ceremonies, which required hours of standing and walking. Complainant testified that, over time, his pain increased because his accommodation needs were not met, and his "flare ups" became more consistent. Further, over time, the pain caused by the lack of accommodations aggravated Complainant's spine, cervical disc, and heart. As a result of both the physical and emotional harm, Complainant became unable to work.
After a review of the record and prior Commission decisions, we find that the AJ's award is well-supported, given the emotional and physical distress suffered as a result of a decade-long failure by the Agency to engage in any meaningful interactive process with Complainant, or provide reasonable accommodation for his disability. There is no evidence that the amount is "monstrous" or the result of passion or prejudice. The Commission has awarded comparable amounts in other cases where the discrimination caused depression and other adverse emotional and physical conditions. Blount, EEOC Appeal No. 0720070010 ($200,000 for depression caused by failure to accommodate); McCormick v. Dep't of Justice, EEOC Appeal No. 0720100040 (Nov. 23, 2011) ($200,000 for emotional and physical damage caused by Agency's egregious discrimination and failure to accommodate).
Attorney's Fees
Title VII authorizes the award of reasonable attorney's fees, including for an attorney's processing of a compensatory damages claim. 29 C.F.R. � 1614.501(e). To establish entitlement to attorney's fees, a complainant must first show that he or she is a prevailing party. Buckhannon Bd. and Care Home Inc. v. West Virginia Dept. of Health and Human Resources, 532 U.S. 598 (2001). A prevailing party for this purpose is one who succeeds on any significant issue, and achieves some of the benefit sought in bringing the action. Davis v. Dep't of Transportation, EEOC Request No. 05970101 (Feb. 4, 1999) (citing Hensley v. Eckerhart, 461 U.S. 427, 433 (1983)).
The fee award is ordinarily determined by multiplying a reasonable number of hours expended on the case by a reasonable hourly rate, also known as a "lodestar." See 29 C.F.R. � 1614.501(e)(2)(ii)(B); Bernard v. Dep't of Veterans Affairs, EEOC Appeal No. 01966861 (July 17, 1998). In determining the number of hours expended the Commission recognizes that the attorney "is not required to record in great detail the manner in which each minute of his time was expended." Bernard, EEOC Appeal No. 01966861. However, the attorney does have the burden of identifying the subject matters which he or she spent time by submitting sufficiently detailed and contemporaneous time records to ensure that the time spent was accurately recorded. Id. EEOC regulations provided that, in limited circumstances, the "lodestar" amount may be "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). See Turton v. Dep't of the Interior, EEOC Appeal No. 07A50040 (Sept. 28, 2005) (20 percent enhancement of attorney's fees justified based on degree of success and quality of representation).
In his decision, the AJ used the lodestar method of calculating the attorney's fees award. Complainant's attorney reported that a reasonable hourly rate in the community was $425 per hour, multiplied by the number of hours expended between September 2008 and November 2010, which amounted to 165.7 hours. The AJ also found that, in light of the exceptional results received, a 20 percent attorney fee enhancement should be awarded. The Agency did not object to this award. Accordingly, the AJ awarded $83,125 in fees and $250 in costs. The Agency did not contest this amount on appeal, and we find no reason to modify it. Accordingly, the Agency will pay attorney's fees in accordance with the Order below.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we REVERSE the Agency's final action. The Agency will comply with the ORDER of the Commission set forth below.
ORDER
The Agency is ORDERED to take the following remedial action:
1) Within one hundred and twenty (120) days from the date this decision becomes final, the agency shall offer Complainant reinstatement into his former position, with accommodation. Complainant shall have fifteen (15) days from receipt of the offer to accept or decline the offer. Failure to accept the offer within 15 days will be considered a declination of the offer, unless the individual can show that circumstances beyond his control prevented a response within the time limit. If Complainant chooses reinstatement, the Agency may request updated medical documentation regarding his physical limitations in order to determine if he can be accommodated.
2) The Agency shall determine the appropriate amount of back pay, with interest, and other benefits due Complainant, pursuant to 29 C.F.R. � 1614.501, no later than one hundred and twenty (120) calendar days after the date this decision becomes final. The back pay period shall be the effective date of his retirement on January 5, 2008 until the date Complainant accepts or rejects reinstatement back into the position, or once its determined that he cannot be accommodated in the position. The Agency shall include all lost benefits and pay increases. This amount shall be offset by Complainant's retirement benefits. The Complainant shall cooperate in the Agency's efforts to compute the amount of back pay and benefits due, and shall provide all relevant information requested by the Agency. If there is a dispute regarding the exact amount of back pay and/or benefits, the Agency shall issue a check to the Complainant for the undisputed amount. The Complainant may petition for enforcement or clarification of the amount in dispute. The petition for clarification or enforcement must be filed with the Compliance Officer, at the address referenced in the statement entitled "Implementation of the Commission's Decision."
3) The Agency shall also pay compensation for the adverse tax consequences of receiving back pay as a lump sum. Complainant has the burden of establishing the amount of increased tax liability, if any. Once the Agency has calculated the proper amount of back pay, Complainant shall be given the opportunity to present the Agency with evidence regarding the adverse tax consequences, if any, for which Complainant shall then be compensated.
4) Within one hundred and twenty (120) days from the date this decision becomes final, the agency shall restore all leave taken, or award the value thereof, as a result of the agency's failure to provide reasonable accommodation.
5) Within one hundred and twenty (120) days from the date this decision becomes final, the Agency shall pay Complainant $250,000 in non-pecuniary compensatory damages.
6) Within one hundred and twenty (120) days from the date this decision becomes final, the Agency shall pay Complainant $83,125 in attorney's fees.
7) Within ninety (90) days from the date this decision becomes final, the Agency shall provide a minimum of sixteen (16) hours of training to all of Complainant's supervisors, Assistant Division Directors and Division Directors in the laws prohibiting disability discrimination, paying particular attention to the Agency's obligation to engage in the interactive process and provide a reasonable accommodation.
8) Within ninety (90) days from the date this decision becomes final, the Agency shall consider taking disciplinary action against Complainant's supervisors, Assistant Division Directors and Division Directors. The Agency shall report its decision. If the Agency decides to take disciplinary action, it shall identify the action taken. If the Agency decides not to take disciplinary action, it shall set forth the reason(s) for its decision not to impose discipline.
9) The Agency shall post a notice in accordance with the paragraph below.
10) 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 of the Agency's calculation of back pay and other benefits due Complainant, including evidence that the corrective action has been implemented.
POSTING ORDER (G0914)
The Agency is ordered to post at its San Francisco, California office 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 becomes final, 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 at the address cited in the paragraph entitled "Implementation of the Commission's Decision," within 10 calendar days of the expiration of the posting period.
ATTORNEY'S FEES (H0610)
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 this decision becoming final. 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 (K0610)
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 77960, Washington, DC 20013. 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 (M0815)
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), 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, P.O. Box 77960, Washington, DC 20013. 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 (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, Director
Office of Federal Operations
10-22-2015
__________________
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 This case arose before January 1, 2009, the effective date of the Americans with Disabilities Act Amendments Act of 2008, which made a number of significant changes to the definition of disability under the Americans with Disabilities Act (ADA) and the Rehabilitation Act. Because this matter occurred no later than 2008, the Commission will use the analytical framework as it existed before the enactment of the ADA Amendments Act of 2008, to determine whether Complainant is an individual with a disability.
3 Complainant filed an appeal to the Office of Federal Operations, which was docketed as EEOC Appeal No. 0120091176. This appeal was later administratively closed when the EEOC AJ assumed jurisdiction over the case.
4 The Oath of Citizenship Ceremony was conducted in a large auditorium, at another facility. Employees were required to wait for transportation, stand and sit in a crowded room for several hours, and then return by bus.
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07-2011-0018
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0720110018