0120080520
01-21-2011
Carl W. Reed, Complainant, v. Ray Lahood, Secretary, Department of Transportation (Federal Aviation Administration), Agency.
Carl W. Reed,
Complainant,
v.
Ray Lahood,
Secretary,
Department of Transportation
(Federal Aviation Administration),
Agency.
Appeal No. 0120080520
Agency No. 5-98-5077
DECISION
On November 9, 2007, Complainant filed this appeal from the Agency's
October 12, 2007 final decision concerning remedies due as a result
of the Agency's unlawful employment discrimination in violation of
Title VII of the Civil Rights Act of 1964 (Title VII), as amended,
42 U.S.C. � 2000e et seq. The Commission accepts the appeal pursuant
to 29 C.F.R. � 1614.405(a). For the following reasons, the Commission
MODIFIES the Agency's final decision.
ISSUE PRESENTED
The issue presented is whether the Agency erred in determining the
remedies to which Complainant is entitled pursuant to a finding of
discrimination issued by the Commission.
BACKGROUND
On March 10, 1998, Complainant, an Operations Supervisor, FG-2152-15,
at the Houston Air Route Traffic Control Center, in Houston, Texas,
filed a formal complaint in which he alleged discrimination on the
basis of reprisal when, on November 1, 1997, his first-line supervisor
(Supervisor) threatened to examine Complainant's assets as a preliminary
step to filing a civil action against him for testifying before a
congressional subcommittee about sexual harassment at the Agency.
The complaint ultimately reached the Commission, which found that the
supervisor's actions constituted retaliatory discrimination and ordered
the agency to take remedial action in the form of, among other things,
conducting a supplemental investigation on the issue of compensatory
damages. Reed v. Department of Transportation, EEOC Appeal No. 01A05085
(May 20, 2003) (Reed I).1
On June 17, 2004, the Agency issued a final decision on compensatory
damages and awarded Complainant $15,000 in non-pecuniary compensatory
damages. Believing he was entitled to more than $15,000 in non-pecuniary
damages as well as a determination on past and future pecuniary losses,
leave restoration, and back pay, Complainant appealed the Agency's
decision to the Commission. Upon request, the Agency provided the
Commission with a copy of the Report of Investigation (ROI) but failed
to include the information Complainant submitted to support his damages
request. Despite repeated requests from the Commission to provide this
information, the Agency did not do so and offered no justification as
to why. Therefore, the Commission vacated the June 17, 2004 decision and
ordered the Agency to issue new findings on Complainant's entitlement to
compensatory damages, including past and future pecuniary losses, and also
leave restoration and back pay. Reed v. Department of Transportation,
EEOC Appeal No. 0120044821 (May 17, 2007) (Reed II).
The Agency's supplemental investigation on remedies revealed that
Complainant alleged he is entitled to an estimated 750 hours of restored
leave, pecuniary compensatory damages for past expenses and future costs
exceeding $113,000, and non-pecuniary compensatory damages in the amount
of $300,000 for the harm caused by the Agency's discrimination.
According to Complainant, he used approximately 150 hours of annual and
sick leave every year for five years as a direct result of the Agency's
discrimination. Complainant alleged that the record clearly establishes
that he would not have taken this time from work but for the impact
the discrimination had on his physical and emotional well-being and
his inability to get the Agency to prevent its managers and other high
level personnel from engaging in discriminatory behavior. Complainant's
Supplemental Response to Decision Regarding Compensatory Damages at 10.
Complainant also alleged the Agency's actions cost him $17,624 in rent
payments and $5,300 in utilities and food for his wife, who relocated
from their home in Houston to an apartment she shared with her brother in
San Antonio because the depression and behavioral changes he underwent
as a result of the Agency's discrimination made her life intolerable.
Complainant's Initial Submission of Damages at 2-5.
Complainant also alleged that from March 1998 to July 1, 2002, he spent
$18,571 in travel expenses for the 53 trips his wife took from San
Antonio to Houston to care for him and an additional $7,818 in weekly
travel expenses from July 26, 2002, to August 18, 2003, for 45 trips he
took to visit his wife after he purchased her a home in San Antonio.
For medical costs, Complainant contended that he is entitled to $500
in past pecuniary damages. See Complainant's Supplemental Response to
Decision Regarding Compensatory Damages at 10. He further contended
he is owed $8,246 in future pecuniary damages because, as a result of
the Agency's discriminatory actions, he has to remain on blood pressure
medication for the rest of his life. Id. at Complainant's Attachment.
Lastly, Complainant alleged he is entitled to an additional $55,781.25 in
loss or diminution of earning capacity. Complainant derived this figure
by taking the 150 hours of annual and sick leave he allegedly used every
year for five years following the discrimination and multiplied it by his
hourly salary of $74.38 to deduce $11,156.25 per year. Complainant noted
that this was the best information available because the Agency refused
to surrender his leave and attendance records.
Pursuant to the Commission's order in Reed II, the Agency issued its
new findings on October 12, 2007, in which it again found Complainant
was entitled to $15,000 in non-pecuniary compensatory damages and
nothing else. The Agency also found that Complainant failed to show he
suffered any pecuniary losses as a result of the Supervisor's retaliatory
statements. According to the Agency, Complainant was not entitled to
leave restoration because he failed to offer evidence concerning the
amount and dates of leave taken or a nexus showing how such leave was
related to the Supervisor's behavior. The Agency noted it was unclear
why Complainant believes he is entitled to back pay because presumably he
was compensated through the leave program for any time spent from work.
In a footnote, the Agency stated that Complainant was not entitled to
attorney's fees because his attorney withdrew his initial attorney's
fee request after determining it to be premature and did not file a
subsequent request. Complainant thereafter filed this appeal.
CONTENTIONS ON APPEAL
In Complainant's Brief in Support of Appeal, Complainant asserts that
he is entitled to non-pecuniary compensatory damages above the $15,000
granted by the Agency and an award on past and future pecuniary losses.
He notes the evidence submitted by his physician, and the affidavits
provided from family members and co-workers, which he contends proves how
the Agency's discrimination directly impacted his physical and mental
health, from which he incurred medical expenses, became detached from
his family, and disengaged at work. He also challenges the Agency's
footnote on attorney's fees as inaccurate. The Agency submitted no
arguments on appeal.
STANDARD OF REVIEW
In determining the appropriate type and amount of relief due Complainant
because of the discrimination he suffered at the hands of the Agency,
we review the propriety of the remedies awarded pursuant to the relief
ordered de novo (or "anew"). See 29 C.F.R. � 1614.405(a). This means that
in deciding this case, we must "examine the record without regard to the
factual and legal determinations" of the Agency, "review the documents,
statements, and testimony of record, including any timely and relevant
submissions of the parties," and then issue our decision "based on the
Commission's own assessment of the record and ... interpretation of the
law." Equal Employment Opportunity Management Directive for 29 C.F.R. Part
1614 (EEO MD-110), at 9-15 (Nov. 9, 1999). Accordingly, we have carefully
reviewed the entire record before us in our attempt to discern whether
a preponderance of the evidence warrants a modification of the Agency's
remedy award. See 29 C.F.R. � 1614.405(a). Complainant's contentions
on appeal are addressed in one or more of the sections below.
ANALYSIS AND FINDINGS
I. EQUITABLE RELIEF
When discrimination is found, the agency must provide complainant with
full, make-whole relief to restore him as nearly as possible to the
position he would have occupied absent the discrimination. See, e.g.,
Franks v. Bowman Transportation Co., 424 U.S. 747, 764 (1976); Albemarle
Paper Co. v. Moody, 422 U.S. 405, 418-19 (1975); Wan v. US Postal Serv,
EEOC Appeal No. 01995204 (July 11, 2001). The Commission recognizes that
not all harms done are amenable to precise quantification; the burden
of limiting the remedy, however, rests with the employer. Smallwood
v. United Airlines, Inc., 728 F.2d 614, 616 n.5 (4th Cir.), cert. denied,
469 U.S. 832 (1984).
A. Back Pay
In Reed II, the Commission ordered the Agency to determine the appropriate
amount of back pay with interest due Complainant for the discriminatory
actions that occurred on November 1, 1997. Complainant alleged that
he is entitled to back pay because of the amount of leave he used as
a result of the discrimination. The Agency stated that it is unclear
why Complainant believes he is entitled to back pay because any leave
used would have been reimbursed in the form of leave. It appears
Complainant has conflated the issue of back pay with his request for
leave restoration, which we address below. There is no evidence that
an allowance for back wages would be an appropriate remedy in this case,
and therefore Complainant's request for back pay is denied.
B. Leave Restoration
The Commission previously ordered the Agency to determine the appropriate
amount of leave restoration to which Complainant was entitled as a result
of the discriminatory actions. Complainant alleged entitlement to an
estimated 750 hours of restored leave, which he referred to as lost wages,
presumably because he is now retired from the Agency. According to the
Agency, Complainant is not entitled to restored leave because he failed to
provide documentation showing the amount of leave used and how that leave
was related to the discriminatory act. Complainant stated that the Agency
refused upon request to provide his leave usage history. Complainant's
Supplemental Response to Decision Regarding Compensatory Damages at 11.
Complainant is entitled to restoration of leave which was taken for
purposes of avoiding or recovering from discriminatory conduct. In order
to be entitled to leave restoration, the employee must demonstrate a
causal nexus between the discrimination and need to take leave. Velez
v. U.S. Postal Serv., EEOC Appeal No. 01902746 (Nov. 16, 1990).
Several of Complainant's co-workers presented testimony indicating
that Complainant took an unusual amount of leave following the Agency's
actions. One co-worker stated, "It appeared [Complainant] took a lot
of leave and began volunteering to work mid-shifts to avoid being at
the facility when management was there." Another stated, "He has taken
quite a bit of leave and having known how conscientious he was prior
to these threats from management, it is obvious that [Complainant] is
avoiding coming to work due to the environment." Another one stated,
"[Complainant] has used a large amount of leave, both sick and annual.
I know [Complainant] well enough to say that his use of leave is
directly related to how he is treated at work." And another co-worker
stated, "[Complainant] has taken a lot of leave since these events."
One of his daughters stated that in the time after January 1998, she
noticed that her father's absences from work became "more often and more
excessive." Based on this evidence, we find that Complainant has shown
a causal nexus between the discriminatory act and the need to take leave
after November 1, 1997.
The remaining outstanding issue regarding this matter is the amount of
annual and sick leave taken by Complainant as a result of the Agency's
actions. At this time, we are unable to determine the amount of leave
owed to Complainant in accordance with our previous order. While the
Agency contends Complainant is not due any restoration of leave because
he failed to provide evidence showing the amount of leave taken, we
find that it is more likely than not that the Agency had access to
Complainant's leave records and yet chose not to supplement the record
with evidence showing the amount of leave Complainant used after he
was discriminated against. Therefore, we shall order the Agency to
determine Complainant's annual and sick leave usage from November 1,
1997, until the date of his retirement from the Agency, and reimburse
him for the entire amount.
II. COMPENSATORY DAMAGES
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. See Rivera v. Dep't of the Navy, EEOC Appeal No. 01934157
(July 22, 1994), request for recon. den., EEOC Request No. 05940927
(Dec 11, 1995); EEOC's Enforcement Guidance: 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 objective evidence that will allow an agency to
assess the merits of his request for damages. See Carle v. Dep't of the
Navy, EEOC Appeal No. 01922369 (Jan. 5, 1993).
A. Out-of-Pocket Losses/Expenses
Pecuniary losses are out-of-pocket expenses that are incurred as a
result of the employer's unlawful action. Typically, these damages
include reimbursement for medical expenses, job-hunting expenses, moving
expenses, and other quantifiable out-of-pocket expenses. EEOC Enforcement
Guidance: Compensatory and Punitive Damages, at 14. Past pecuniary losses
are losses incurred prior to the resolution of a complaint through a
finding of discrimination, the issuance of a full-relief offer, or a
voluntary settlement. Id. at 8-9. Future pecuniary losses are losses
that are likely to occur after resolution of a complaint. Id. at 9. For
claims seeking pecuniary damages, such objective evidence should include
documentation of out-of-pocket expenses for all actual costs and an
explanation of the expense, e.g., medical and psychological billings,
other costs associated with the injury caused by the agency's actions,
and an explanation for the expenditure. Id. at 9.
1. Past Pecuniary Losses
Complainant requests for past pecuniary damages include rent and travel
expenses he incurred as a result of his wife's move from Houston to
San Antonio, and past medical expenses for doctor's visits he alleged
were made necessary as a result of the Agency's discriminatory action.
However, he failed to provide specific evidence in the form of medical
receipts, bills, or other objective documentation tending to support
any of these claims, and therefore has not provided sufficient evidence
showing he is entitled to an award for past pecuniary damages.
2. Future Pecuniary Expenses
Complainant also claimed future pecuniary damages for blood-pressure
medication he will likely have to take for the rest of his life.
Complainant alleged that in April 1998, he underwent an Agency mandated
annual physical, the results of which showed his blood pressure to
be elevated. In a letter dated August 2003, Complainant's physician
(Physician) stated that Complainant had a significant history for
high blood pressure and likely must remain on blood medication for
the rest of his life. The Physician also stated that Complainant had
reported encountering undue stress at work since 1997. Complainant also
provided other medical documents, none of which indicate he was originally
diagnosed with high blood pressure in April 1998. Thus, he has failed to
establish a link between his medical condition and the Agency's action.
We therefore find he has not shown that he is entitled to future pecuniary
damages for anticipated medical costs.
Complainant also claimed future pecuniary damages for loss of or
diminution in earning capacity. Where an employee has shown that his
future earning power has been diminished as a result of the agency's
discrimination, the Commission has awarded future pecuniary damages for
the loss of future earning capacity. Brinkley v. U.S. Postal Serv., EEOC
Request No. 05980429 (August 12, 1999); Hernandez v. U.S. Postal Serv.,
EEOC Appeal No. 07A30005 (July 16, 2004). Proof of entitlement to loss of
future earning capacity involves evidence suggesting that the individual's
injuries have narrowed the range of economic opportunities available
to him. Carpenter v. Dep't of Agriculture, EEOC Appeal No. 01945652
(July 17, 1995). Generally, the party seeking compensation for loss
of earning capacity needs to provide evidence which demonstrates with
reasonable certainty or reasonable probability that the loss has been
sustained. Id. (citing Annotation, Evidence of Impaired Earnings Capacity,
18 A.L.R. 3d 88, 92 (1968)).
Complainant has alleged he is entitled to an award for loss of earning
capacity because the estimated amount of annual and sick leave he
used in each of the five years following the Agency's discrimination
affected his earnings and retirement. This contention appears related
to Complainant's argument for leave restoration but is insufficient to
show that his earning power was somehow impacted by the Agency's action.
Because the record is devoid of evidence which shows the Agency's action
narrowed the range of economic opportunities available to Complainant,
we deny this claim.
B. Non-Pecuniary Compensatory Damages
Non-pecuniary losses are losses that are not subject to precise
quantification, i.e., emotional pain, suffering, inconvenience, mental
anguish, loss of enjoyment of life, injury to professional standing,
injury to character and reputation, injury to credit standing, and
loss of health. See EEOC Notice No. 915.002 at 10 (July 14, 1992).
There is no precise formula for determining the amount of damages for
non-pecuniary losses except that the award should reflect the nature and
severity of the harm and the duration or expected duration of the harm.
See Loving v. Dep't of the Treasury, EEOC Appeal No. 01955789 (Aug. 29,
1997). We note that non-pecuniary compensatory damages are designed to
remedy the harm caused by the discriminatory event rather than punish
the Agency for the discriminatory action. Furthermore, compensatory
damages should not be motivated by passion or prejudice or "monstrously
excessive" standing alone but should be consistent with the amounts
awarded in similar cases. See Ward-Jenkins v. Dep't of the Interior,
EEOC Appeal No. 01961483 (Mar. 4, 1999).
Evidence from a health care provider or other expert is not a mandatory
prerequisite for recovery of compensatory damages for emotional harm. See
Lawrence v. U.S. Postal Serv., EEOC Appeal No. 01952288 (Apr 18, 1996)
(citing Carle v. Dep't of the Navy, EEOC Appeal No. 01922369 (Jan. 5,
1993)). Objective evidence of compensatory damages can include
statements from the Complainant concerning his emotional pain or
suffering, inconvenience, mental anguish, loss of enjoyment of life,
injury to professional standing, injury to character or reputation,
injury to credit standing, loss of health, and any other non-pecuniary
losses that are incurred as a result of the discriminatory conduct. Id.
Statements from others, including family members, friends, health
care providers, other counselors (including clergy) could address the
outward manifestations or physical consequences of emotional distress,
including sleeplessness, anxiety, stress, depression, marital strain,
humiliation, emotional distress, loss of self-esteem, excessive fatigue,
or a nervous breakdown. Id. Complainant's own testimony, along with the
circumstances of a particular case, can suffice to sustain his burden
in this regard. Id. The more inherently degrading or humiliating the
defendant's action is, the more reasonable it is to infer that a person
would suffer humiliation or distress from that action. Id. The absence of
supporting evidence, however, may affect the amount of damages appropriate
in specific cases. Id.
In the instant case, Complainant asserted that he has suffered emotional
and physical suffering since the Agency's discrimination. He asserted
that he has become detached from his family and disengaged at work.
Complainant provided affidavits from several family members and co-workers
to support his assertions.
Complainant's wife stated that in the aftermath of the Agency's
discrimination she has had a difficult time coping with his problems.
She stated that she has had to seek medical help because of the demand
of having to take care of the household and their daughters alone.
She stated that Complainant spent many hours on the telephone talking
to his co-workers about how was treated at work, which took a toll on
the family. Complainant's Wife Affidavit, at 1. Complainant's wife
stated that the tension created by Complainant's work situation made it
unbearable to live together as a family and caused her to move out from
their home in 1998 even though she still cared for and loved her husband.
Id. at 2.
Complainant's oldest daughter (Daughter 1) stated over the five years
following the Agency's discriminatory action, Complainant remained
in a constant state of tension, and that his body language and
lack of interaction with the family created a very tense atmosphere.
Daughter 1 Aff. at 1. She stated that her father, formerly outgoing and
family-oriented, was now isolated at home, which caused her mother to
move out of their bedroom and eventually out of their home. She stated
that her father missed her wedding because he did not have the emotional
state to deal with family events. Id. at 2.
Complainant's youngest daughter (Daughter 2) stated that Complainant's
job was a major part of his life before the discriminatory event but he
always found a way to spend time with his family. Daughter 2 Aff. at 1.
She stated that after her father was discriminated against, the look in
her father's eyes and his lack of enthusiasm for life deeply saddened her.
Id. at 3. She stated that her efforts to communicate with him in the
aftermath of what he experienced at the Agency were met with mean and
hurtful statements. Id. at 4. She stated that her father also missed
her wedding because of his mental state.
Complainant's brother, sister, and brother-in-law submitted affidavits
as well. All of these affidavits in one form or another indicated
that after Complainant was discriminated against, he became further
and further removed from the family, and that his attendance at family
events diminished. They also indicated that when they saw Complainant in
person, he was less talkative and withdrawn. Complainant's brother-in-law
referred to Complainant as "reclusive." His sister referred to his
condition as "a mood swing." His brother stated that Complainant "would
not return any phone calls."
Complainant provided affidavits from twelve former co-workers, several of
whom he supervised. One of his former employees stated that Complainant
was an effective supervisor but after he was discriminated against,
he loss his effectiveness. This employee stated that he and several of
his colleagues changed specialties because they could no longer work for
Complainant. Another employee confirmed that she and her colleagues knew
that whatever Complainant requested of them was reasonable and logical
because they watched how he worked but after he was discriminated against
he became very guarded in his actions and conversations.
Complainant's fellow supervisors stated that after Complainant was
discriminated against they often discussed Complainant's change in
personality among themselves. They indicated that he became preoccupied
and withdrawn and that the relationship he had with his co-workers changed
drastically. One colleague stated that Complainant became less engaged
in the operations of the organization, and described his behavior as
"constantly looking over his shoulder" and "approaching paranoia."
Another colleague stated Complainant was shunned at work and became
an outcast. Still another one stated that before the Agency's action,
Complainant was an attentive and resourceful colleague but afterwards
he became more distant, reserved and isolated.
Taking into account the evidence of non-pecuniary damages submitted by
Complainant, we find the Agency's award of non-pecuniary, compensatory
damages in the amount of $15,000 to be inadequate. As a result of the
Agency's action, Complainant experienced emotional mood swings, mental
anguish, and damage to his professional standing and reputation, which
included several of his staff members requesting a change in supervisors.
He also experienced marital and familial strain, a general loss of
self-esteem, and stopped enjoying life.
Based on the record, the Commission finds that Complainant is entitled
to an award of $50,000. This amount takes into account the nature
of the discriminatory actions and the severity of the harm suffered,
and is consistent with prior Commission precedent. Lindsay v. Dep't
of Veterans Affairs, EEOC Appeal No. 0720070016 (July 26, 2007),
request for recon. den., EEOC Request No. 0520070874 (Sept. 26, 2007)
($50,000 awarded where Complainant experienced stress and weight loss,
became withdrawn, lost energy, and interacted less with friends);
Claflin v. Dep't of Defense, EEOC Appeal No. 07A50069 (May 26, 2006)
($53,000 awarded where Complainant suffered emotional distress, believed
her reputation was ruined, became afraid to go outside, and became
cold and less affectionate toward her spouse); Scheels v. U.S. Postal
Serv., EEOC Appeal No. 07A50005 (July 28, 2005) ($50,000 awarded where
Complainant experienced emotional distress and marital problems, and
was described by her co-workers as unhappy, upset, and frustrated).
An award of $50,000 meets the goals of not being motivated by passion or
prejudice, not being "monstrously excessive" standing alone, and being
consistent with the amounts awarded in similar cases. See Cygnar, supra.
III. ATTORNEY'S FEES
A. Entitlement
On June 17, 2003, the Agency requested that Complainant provide
documentation showing his entitlement to remedies, including attorney's
fees. On July 11, 2003, Complainant's attorney submitted a petition for
attorney's fees requesting $13,212 in legal fees and costs. After being
notified that the petition included fees and costs related to an EEO
complaint where Complainant was not the prevailing party, Complainant's
attorney withdrew the request as premature.
On September 29, 2004, Complainant's attorney submitted an amended
petition requesting $9,136 in legal fees and associated costs.
The attorney noted that his request was no longer premature as the
Agency had just released its decision in Complainant's compensatory
damages claim on June 17, 2004. The Agency's February 9, 2005, response
informed Complainant's attorney that the June 17, 2004, decision concluded
that because he withdrew his initial request for attorney's fees and
no subsequent request had been submitted, Complainant would not be
awarded attorney's fees. The Agency noted that the decision notified
Complainant of his appeal rights, and since no appeal had been timely
filed the matter was now closed.
On May 17, 2007, the Commission vacated the Agency's June 17, 2004,
decision and ordered the Agency to issue new findings. Those findings,
issued on October 12, 2007, included a footnote stating that Complainant
had withdrawn his request for attorney's fees and that "[t]he file d[id]
not contain any subsequent submissions by the Complainant's attorney
regarding attorney's fees; therefore, no attorney's fees w[ould] be
awarded." On appeal, Complainant challenged the Agency's footnote on
attorney's fees as inaccurate.
The Agency's reliance on its June 17, 2004, decision as the reason to
deny Complainant's attorney's fee request was in error because that
decision was vacated in Reed II. And the notion that it could not award
attorney's fees in its October 12, 2007, decision because the file did not
contain a subsequent request for attorney's fees is a misrepresentation
of the facts; the file clearly contained Complainant's September 29,
2004 request for attorney's fees when the Agency rendered its decision on
October 12, 2007. In the instant appeal, Complainant timely challenged
all aspects of the Agency's October 12, 2007, decision, and that includes
the finding on attorney's fees. Thus Complainant's request for attorney's
fees is not a closed matter but an issue ripe for appellate review.
B. Attorney's Fees Calculation
Title VII and the Commission's regulations authorize the award of
reasonable attorney's fees and costs to a prevailing Complainant. 29
C.F.R. � 1614.501(e); see also Equal Employment Opportunity Management
Directive for 29 C.F.R. Part 1614 (EEO MD-110), at 11-1 (Nov. 9,
1999). Fee awards are typically calculated by multiplying the number of
hours reasonably expended times a reasonable hourly rate, an amount also
known as a lodestar. See 29 C.F.R. � 1614.50l(e)(ii)(B); Blum v. Stenson,
465 U.S. 886, 899 (1984); Hensley v. Eckerhart, 461 U.S. 424, 435 (1983).
All hours reasonably spent in processing the complaint are compensable,
but the number of hours should not include excessive, redundant or
otherwise unnecessary hours. Id. at 11-15. A reasonable hourly rate is
based on prevailing market rates in the relevant community for attorneys
of similar experience in similar cases. Id. at 11-6. An application for
attorney's fees must include a verified statement of attorney's fees
accompanied by an affidavit executed by the attorney of record itemizing
the attorney's charges for legal services. Id. at 11-9.
While the attorney is not required to record in great detail the manner
in which each minute of his time was expended, the attorney does have
the burden of identifying the subject matters on which he spent his time
by submitting sufficiently detailed and contemporaneous time records to
ensure that the time spent was accurately recorded. See Spencer v. Dep't
of the Treasury, EEOC Appeal No. 07A10035 (May 6, 2003). The attorney
requesting the fee award has the burden of proving, by specific evidence,
entitlement to the requested fees and costs. Koren v. U.S. Postal Serv.,
EEOC Request No. 05A20843 (Feb. 18, 2003).
Complainant claimed $8,844 in legal fees and $295 in associated costs
in the attorney's fees petition submitted on September 24, 2004 for
services rendered from October 23, 1997, to June 1, 2004. According to
the petition, Complainant's attorney spent approximately 42 1/2 hours
on Complainant's complaint at a cost of $200 per hour. We note that
the petition for attorney's fees claimed $198 in legal fees and $10 in
costs related to expenses incurred before November 1 1997, the date on
which Complainant was discriminated; the Agency is not obligated to pay
for those charges. Thus, we start with the premise that Complainant
is entitled to no more than $8,646 in legal fees and $285 in associated
costs.
Attorney's fees may not be recovered for work on unsuccessful
claims. Hensley, at 434. Courts have held that fee applicants
should exclude time expended on "truly fractionable" claims or
issues on which they did not prevail. See National Association of
Concerned Veterans v. Secretary of Defense, 675 F.2d 1319, 1327 n.13
(D.C. Cir. 1982). Claims are fractionable or unrelated when they involve
distinctly different claims for relief that are based on different facts
and legal theories. Hensley, 461 U.S. at 435. However, in cases where
a claim for relief involves "a common core of facts or will be based
on related legal theories" a fee award should not be reduced simply
because the plaintiff failed to prevail on every contention raised
in the lawsuit. Id. "The hours spent on unsuccessful claims should be
excluded in considering the amount of a reasonable fee only where the
unsuccessful claims are distinct in all respects from the successful
claims." See EEO MD-110, at 11-16 (citation omitted).
Complainant's initial complaint was a claim of retaliatory harassment
containing four incidents, all of which related to his testimony before
Congress. The Commission found that three of those four incidents
were legitimate, nondiscriminatory employment actions, and one, the
statement in which the Supervisor threatened to sue Complainant,
constituted retaliation. Even though Complainant did not prevail
on every contention he raised, we find that his complaint was based
on a common core of facts with the same legal theory. Therefore, we
decline to order a reduction in attorney's fees. We also find that the
number of hours expended and the attorney's rate of $200 per hour to be
reasonable considering the complexity of the case, and the experience
level of Complainant's attorney and the market in which he practiced.
We therefore grant Complainant $8,646 in attorney's fees and $285 in
costs.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal,
including those not specifically addressed herein, we hereby MODIFY the
Agency's final decision and REMAND this case to the Agency for action
consistent with this decision and the Order below.
ORDER
The Agency shall take the following remedial actions within sixty (60)
calendar days from the date this decision becomes final:
1. Determine how much annual leave Complainant used from November 1,
1997, to the date of his retirement in connection with the Agency's
discriminatory actions, and pay him for the entire amount;
2. If Complainant retired under the Civil Service Retirement System
(CSRS), the Agency shall determine the amount of sick leave Complainant
used from November 1, 1997, to the date of his retirement in connection
with the Agency's discriminatory actions, and shall effect whatever
adjustments are necessary to credit Complainant's service time for such
sick leave;
3. Pay Complainant $50,000 in non-pecuniary damages;
4. Pay Complainant $8,646 in attorney's fees and $285 in costs; and
5. Submit a report of compliance, as provided in the statement entitled
"Implementation of the Commission's Decision." The report shall include
all supporting documentation of the Agency's calculation of Complainant's
reimbursement of annual and sick leave.
ATTORNEY'S FEES (H0610)
If Complainant has been represented by an attorney (as defined by 29
C.F.R. � 1614.501(e)(1)(iii)), she 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 (M0610)
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 9-18 (Nov. 9, 1999). 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 (Z0610)
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 from the Court that
the Court appoint an attorney to represent you and that the Court also
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 with
the Court 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
January 21, 2011
Date
1 Complainant also alleged discrimination regarding three other actions
but the Commission found that he failed to prove those acts were
retaliatory in nature. Id.
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0120080366
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120080520