07a20124_01a22134
08-06-2003
Barbara M. Myklebust, Complainant, v. Anthony J. Principi, Secretary, Department of Veterans Affairs, Agency.
Barbara M. Myklebust v. Department of Veterans Affairs
07A20124, 01A22134
August 6, 2003
.
Barbara M. Myklebust,
Complainant,
v.
Anthony J. Principi,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal Nos. 07A20124; 01A22134
Agency Nos. 95-2127; 96-1618; 97-0481
Hearing Nos. 260-97-9097x; 260-97-9098x; 260-97-9099x
DECISION
An EEOC Administrative Judge (AJ) found that the agency retaliated against
complainant on the basis of her prior protected EEO activity in violation
of Title VII of the Civil Rights Act of 1964 (Title VII), as amended,
42 U.S.C. � 2000e et seq, when it unlawfully terminated her. The agency
appealed this finding to the Commission. In Myklebust v. Department of
Veterans Affairs, EEOC Appeal No. 01982377 (June 15, 2001) (Decision I),
we determined that the AJ's finding of discrimination in regard to the
reprisal claim was supported by substantial evidence and ordered the AJ to
determine the damages due to complainant and for the agency to determine
the attorney's fees due to complainant. The same AJ scheduled a hearing
on the issue of damages, and ultimately awarded complainant $115,000.00
in non-pecuniary damages, as well as $58,523.00 in past pecuniary and
$300.00 in future pecuniary damages. On May 30, 2002 the agency issued
a final order rejecting the $115,000.00 non-pecuniary damages award and
accepting the AJ's award of pecuniary and future pecuniary damages and
concurrently filing its appeal which the Commission docketed as EEOC
Appeal No.07A20124.
In accordance with the Commission's order in Decision I, complainant
timely submitted an attorney's fee petition to the agency in order to
determine the amount of the attorney's fees due to her. Complainant
requested $71,875.00 for 287.50 hours of work at the rate of $250.00
per hour. Complainant also requested an �upward adjustment� of 25%.
Additionally, complainant requested $2,267.82 in costs. The agency
issued a final decision (FAD) determining that complainant was entitled
to $52,000.00 for 208 hours at $250.00 per hour for attorney's fees,
$1,500.00 for 6 hours at $250.00 per hour for preparation of the fee
petition, and $1,444.90 in costs. The agency rejected complainant's
request for an upward adjustment. Complainant filed an appeal which
the Commission docketed as EEOC Appeal No. 01A22134.
The Commission accepts these appeals pursuant to 29 C.F.R. � 1614.405
and, at complainant's request, consolidates these two appeals. For the
following reasons, the Commission affirms the agency's request to reduce
the non-pecuniary damage award and its decision on attorney's fees.
07A20124
In its appeal of the compensatory damages awarded by the AJ in the
amount of $115,000.00, the agency argues that: (1) the agents of the
Medical College of Wisconsin (MCW), and not officials of the agency,
caused the majority of complainant's alleged psychological injuries
when they terminated her soon after the agency terminated her; (2)
complainant exaggerated her emotional injuries; and (3) the amount
awarded by the AJ is not in keeping with awards in similar EEOC cases.
Complainant requests that we reverse the agency's final order and award
complainant the full amount of the AJ's award.
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). Whenever an agency is liable for
unlawful employment discrimination, it must provide complainant
with full, �make-whole� relief to restore the complainant as nearly
as possible to the position he or she would have been in absent the
discrimination. Cf. Franks v. Bowman Transportation Co., 424 U.S. 747,
764 (1976); Albemarle Paper Co. v. Moody, 422 U.S. 405, 418-19 (1975).
In light of the Civil Rights Act of 1991, this �make-whole� relief now
includes the payment of compensatory damages for intentional employment
discrimination violating Title VII and the Rehabilitation Act. See,
e.g., 42 U.S.C. � 1981a(a); see also West v. Gibson, 527 U.S. 212 (1999)
(where the Supreme Court affirmed the EEOC's statutory authority to award
compensatory damages to complainants who prevail on administrative federal
sector complaints). Compensatory damages, however, are limited to the
amount necessary to compensate an injured party for actual harm caused
by the agency's discriminatory action, even if the harm is intangible.
Damiano v. United States Postal Service, EEOC Request No. 05980311
(February 26, 1999). Compensatory damages should consider the extent,
nature and severity of the harm and the length of time the injured party
endured the harm. See Enforcement Guidance: Compensatory and Punitive
Damages Available under Section 102 of the Civil Rights Act of 1991, EEOC
Notice No. 915.002 (July 14, 1992), at 11-12, 14 (Enforcement Guidance).
The Commission notes that in a proper award of non-pecuniary compensatory
damages, the amount of the award should not be �monstrously excessive�
standing alone, the product of passion or prejudice, and consistent with
the amount awarded in similar cases. See Ward-Jenkins v. Department
of Interior, EEOC Appeal No. 01961483 (March 4, 1999) (citing Cygnar
v. City of Chicago, 865 F.2d 827, 848 (7th Cir. 1989).
We find that the agency's arguments (1) and (2) are without merit.
In so finding, we note that there is sufficient evidence to support
the AJ's finding that complainant's major depressive episode and onset
of post traumatic stress disorder (PTSD) were caused by the agency's
discriminatory actions. This finding is based on the credited testimony
of complainant's expert witness/psychiatrist (P1). The AJ additionally
determined that, among other things, the agency's expert medical witness'
testimony did not merit as much weight as P1's diagnosis. Furthermore,
the AJ explicitly stated that the damages awarded would not reflect the
injury to complainant from rumors or specific acts by employees of MCW
and would be limited to the injury caused when complainant's position
was subject to a reduction in force, her lab was closed, and she was
constructively discharged. AJ Decision, 8. Based on the evidence of
record, we find that the AJ's finding that the agency was liable for
the harms suffered by complainant as a result of its discriminatory
actions is supported by substantial evidence. Further, we find that the
agency's allegation that complainant exaggerated her emotional injuries
is without merit.
We find, however, that the AJ erred in awarding $115,000.00 to complainant
in compensatory damages. We find this amount is �monstrously excessive�
standing alone and inconsistent with the amounts awarded in similar
cases. We note that the duration and severity of complainant's injuries
are significantly less than those in the decisions cited by the AJ
in support of her award. Complainant's emotional injuries occurred
during the relatively short duration during the summer and fall of 1996.
Testimony from complainant's husband and psychotherapist indicated that by
fall of 1996, complainant was recovering. The AJ found that from May 10,
1996 to July 11, 1996, complainant felt like a failure; spent most days
at home either sleeping or crying; slept through the day and was unable
to sleep at night; had nightmares; had no social interactions and left
the house during the first month only for appointments with doctors;
was unable to produce or concentrate; had no control of her emotions;
and lost weight. The AJ also found that complainant also ceased her
nightly walks and developed a hyper arousal state: she is easily startled
by loud noses in an environment that would not affect a normal person.
Complainant's husband also testified to complainant's feelings of
hopelessness and despair. Complainant was ultimately diagnosed with PTSD
and major depression by P1 and was prescribed medication. P1 testified
that complainant's depression, at the time of the hearing, was in full
remission and had been in partial remission since late 1996 and early
1997, however, complainant would continue to have residual symptoms
of both major depressive episode and PTSD. P1 further testified that
complainant would continue to require medication and see a psychiatrist
for an indefinite period. Complainant's husband also testified that
she had improved greatly but is no longer as resilient as in the past.
P1 testified that complainant is now different psychologically and
physiologically.
We find that based on the evidence of record that an award of $40,000.00
is appropriate. See Anderson v. United States Postal Service, EEOC Appeal
No. 01A14976 (April 2, 2003) ($40,000.00 in non-pecuniary damages awarded
where the agency subjected complainant to harassment by her supervisor
which resulted in continuing back problems and complainant was diagnosed
with major depression and post traumatic stress disorder); Turner
v. Department of Interior, EEOC Appeal No. 01956390 (April 27, 1998)
($40,000.00 in non-pecuniary damages awarded where the agency subjected
complainant to sexual harassment and retaliation, which resulted in
depression, anger, anxiety, frustration, sleeplessness, crying spells,
loss of self-esteem and strained relationships). Accordingly, we reduce
the AJ's award and direct the agency to pay complainant $40,000.00 in
compensatory damages.
01A22134
On appeal, complainant requests $71,875.00 for 287.50 hours in attorney's
fees, an �upward adjustment� of 25% and $2,267.82 in costs. The agency
requests that we affirm its FAD.
As a preliminary matter, we note that we review the decision on an appeal
from a FAD issued without a hearing de novo. 29 C.F.R. � 1614.405(a).
A finding of discrimination raises a presumption of entitlement to an
award of attorney's fees. 29 C.F.R. � 1614.501(e). Attorney's fees
shall be paid for services performed by an attorney after the filing
of a written complaint. Id. The attorney requesting the fee award
has the burden of proving, by specific evidence, entitlement to the
requested fees and costs, and the statement of attorney's fees and costs
shall be accompanied by an affidavit executed by the attorney or record
itemizing the attorney's charges for legal services and related costs.
Equal Employment Opportunity Management Directive for 29 C.F.R. Part
1614 (EEO MD-110), 11-5 through 11-7, (November 9, 1999). While counsel
need not provide great detail, the Commission has held that the attorney
should attempt to identify the subject matter involved, in accord with
the obligations to make a good faith effort to exclude hours that are
excessive, redundant, or otherwise unnecessary. Benard v. Department
of Veterans Affairs, EEOC Appeal No. 01966861 (July 17, 1998). If the
agency contests the fee request, it must provide specific reasons
for its determination. Id.; see National Ass'n of Concerned Veterans
v. Secretary of Defense, 675 F.2d 1319 (D.C. Cir. 1982).
The starting point in calculating attorney's fees is the number of hours
reasonably expended multiplied by a reasonable hourly rate. 29 C.F.R. �
1614.501(e); EEO MD-110, at 11-5. This result is the �lodestar,�
and there is a strong presumption that this amount represents the
reasonable fee. EEO MD-110, supra; Hensley v. Eckerhart, 461 U.S. 424,
434 (1983). A reasonable hourly fee is the prevailing market rate in
the relevant community. Blum v. Stenson, 465 U.S. 886 (1984). In very
limited circumstances, the lodestar may be reduced or increased in
consideration of the degree of success, and quality of representation.
EEO MD-110, at 11-5.
In the absence of any argument to the contrary, we find that the parties
agree that the reasonable hourly fee to which complainant's attorney is
entitled is $250.00. The agency approved 208 hours at $250.00 per hour
rather than the 287.50 hours claimed by complainant. In its FAD, the
agency cites various reasons for rejecting portions of the fees claimed:
The agency rejected 7.6 hours and awarded 2 hours for time spent
reviewing the merits of the case before accepting the case.
The agency rejected 187.1 hours and awarded 134.0 hours for the period
from July 24, 1995 through the end of the hearing on July 29, 1997.
The agency rejected the total requested 9.3 hours for time spent on a
third post-hearing, pre-decision brief that the agency was unable to find
in the record. As a result, the agency declined to review this claim.
The agency rejected 9.2 hours and awarded 6.0 hours for time spent
preparing a fee petition.
The agency rejected complainant's request for an �upward adjustment�
of 25% of the lodestar.
We affirm the portions excluded by the agency for the reasons stated in
the FAD and based on the evidence of record. Further, we affirm the
FAD's denial of an upward adjustment of the lodestar. In so finding,
we note that there is a strong presumption that the lodestar represents
the reasonable fee. 29 C.F.R. � 1614.501(e)(2)(ii)(B). In limited
circumstances, the lodestar figure may be adjusted upward, taking into
account the degree of success, the quality of representation, and long
delay caused by the agency. MD-110, at 11-7. Complainant has failed
to demonstrate that the circumstances of this case warrant an upward
adjustment. Accordingly, complainant is awarded attorney's fees of
$52,000.00 for 208 hours and $1,500.00 for 6 hours for the preparation
of the fee petition.
Next, we turn to the issue of costs. Although the only recoverable
costs cited in the regulations are for transcript reporter fees, expert
witnesses, and copying, the Commission has held that recoverable costs
may include reasonable out-of-pocket expenses incurred during the normal
course of representation. Hatfield v. Department of the Navy, EEOC Appeal
No. 01892902 (December 12, 1989). To be reimbursed for incurred costs,
the fee applicant must submit adequate documentation in support of the
expenses incurred, e.g., copies of receipts. See Canady v. Department
of Army, EEOC Request No. 05890226 (December 27, 1989). The agency
disallowed $1,233.92 in costs for telefax services, photocopies and
courier services, and awarded $1,444.90 for costs of expert witness fees
and reporter fees. According to the FAD, the agency advised complainant's
attorney that additional documentation supporting the costs for facsimile,
copying and courier costs may have been necessary. Because complainant
failed to produce adequate documentation supporting these costs, we
affirm the FAD. Accordingly, complainant is awarded $1,444.90 for costs.
Therefore, after a careful review of the record, including arguments
and evidence not specifically discussed in this decision, the Commission
directs the agency to take action in accordance with this decision and
the Order below.
ORDER
The agency shall take the following action, to the extent that it has
not already done so, within sixty (60) days of the date this decision
becomes final:
Pay complainant $40,000.00 in non-pecuniary damages.
Pay complainant $58,523 in pecuniary damages.
Pay complainant $300.00 in future pecuniary damages.
Pay complainant $53,100.00 for attorney's fees.
Pay complainant $1,444.90 for costs.
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. �� 16 in non-pecuniary damages awarded where 14.407, 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
August 6, 2003
__________________
Date