0720110035
05-15-2012
Christine G. Fivecoat, Complainant, v. Mike Donley, Secretary, Department of the Air Force, Agency.
Christine G. Fivecoat,
Complainant,
v.
Mike Donley,
Secretary,
Department of the Air Force,
Agency.
Appeal No. 0720110035
Hearing No. 430-2008-00393X
Agency No. 5V1C07007
DECISION
In conjunction with the issuance of its June 14, 2011 final order, the Agency filed a timely appeal which the Commission accepts pursuant to 29 C.F.R. � 1614.405(a). On appeal,1 the Agency requested that the Commission affirm its rejection of an EEOC Administrative Judge's (AJ) finding of sex-based hostile work environment harassment in violation of Title VII of the Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. � 2000e et seq. In addition, the Agency requested 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
The issues presented are: (i) whether substantial evidence in the record supports the AJ's finding of sex-based hostile work environment harassment; (2) whether the AJ's award of $100,000 in non-pecuniary compensatory damages is appropriate; and (3) whether the AJ's award of $129,216.53 in attorney's fees is appropriate.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Budget Analyst, GS-0560-09, in the Agency's Financial Management Section (FMS), Civil Engineering Resources Funds Office (CERF), 4th Civil Engineering Squadron at Seymour Johnson Air Force Base in North Carolina.2 Complainant worked with two other employees in FMS (E1 - female, E2 - male). Complainant's First Level Supervisor was the Supervisory Financial Management Specialist (S1 - female). Complainant's Second Level Supervisor was the CERF Flight Chief (S2 - male). Complainant's Third Level Supervisor was the Deputy Base Civil Engineer (S3 - male).3
In 2007, Complainant filed an EEO complaint alleging that:
1. The Agency subjected her to hostile work environment harassment and discrimination on the basis of sex (female) when:
a. In June 2006, September 2006, and from February to June 2007, S3 did not end S2's sex discrimination;
b. In June and July 2006, S2 denied Complainant the opportunity to attend two temporary duty (TDY) training conferences but provided funds for E2 to attend a training conference for financial management;
c. From June 2006 to July 2007, S2 changed office policy coverage with regard to leave scheduling, meetings, and TDY conferences when Complainant requested leave, compensatory time off, and TDY training;4
d. From June 2006 to July 2007, S2 gave E2 high profile additional duties and required training; and
e. From June 2006 to July 2007, S2 demeaned female subordinates, spoke to them in a curt and rude tone of voice on a frequent basis, told Complainant that he hated women, and referred to his son's mother as a "bitch."
2. In September 2007, the Agency subjected her to discrimination on the basis of reprisal (prior EEO activity) when it refused to allow her to tape record conversations and have union representation in certain meetings.
At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation and notice of her right to request a hearing before an AJ. Complainant timely requested a hearing. The AJ held a liability hearing on November 17-20, 2009 and January 5, 2010, and a damages hearing on December 14, 2010. The AJ issued a decision on May 2, 2011.
AJ's Decision
The AJ analyzed claims 1b, 1d, and 2 under a disparate treatment framework and found that Complainant failed to show that the legitimate, nondiscriminatory reasons articulated by the Agency were a pretext for sex or reprisal discrimination. The AJ analyzed claims 1a and 1e under a harassment framework and found that Complainant established a claim of hostile work environment on the basis of sex.
Regarding S2's conduct towards Complainant and the women in CERF, the AJ found the following facts: S2 behaved inappropriately and unprofessionally towards both the men and the women in CERF, but treated the women worse. S2's verbal conduct towards the women in CERF included: (i) speaking to them in curt and rude tones; (ii) calling them derogatory names ("fat slob," "Jekyll and Hyde") and insinuating that they were stupid; (iii) making anti-female references about women ("bitch," "slut"); and (iv) repeatedly criticizing them in public and in private. S2's non-verbal conduct towards the women in CERF included: (i) micromanaging them more than the men, when their performance did not merit increased supervision; (ii) assigning them his work when he was out of the office and blaming them when it was not completed on time; (iii) circumventing the chain of command and repeatedly undermining S1's supervisory authority over her subordinates; and (iv) displaying physically intimidating behavior (aggressive body language, slamming doors, slamming his fists).
Regarding the responses of Complainant and the Agency to S2's conduct, the AJ found the following facts: In September 2006, February 2007, and June 2007, Complainant formally met with S3 about S2's treatment of her. At different times, S1, E1, and E3 also complained to S3 about S2's treatment of them. The Agency did not initiate an informal investigation until June 2007, nine months after it was on notice that Complainant believed S2 was harassing her. The Investigator (IN1) interviewed Complainant, S1, E1, and E3, but did not interview other CERF employees who may or may not have witnessed the situation. The Agency did not take other measures in conjunction with the informal investigation to ensure that further harassment did not occur - such as temporarily separating S2 from the women's physical location or having all communication between them go through S3 or another management official. Following the informal investigation, IN1 made recommendations to management but did not make any credibility determinations about the parties to help management determine whether harassment occurred. The Agency implemented some of IN1's recommendations by temporarily separating S2 and E3, permanently inserting another management official into the women's chain of command (to act as a buffer between them and S2), and sending S2 to Myers-Briggs training. The Agency did not take subsequent preventive measures such as anti-harassment training for all employees and monitoring of the CERF workplace situation.
Based on the above, the AJ found that Complainant was subjected to harassment in the form of unwelcome conduct from S2 and that the unwelcome conduct was based on her sex. In addition, the AJ found that the harassment created a hostile work environment because, as a result of S2's frequent humiliation and intimidation of women with his comments and behavior, he unreasonably interfered with Complainant's work performance. Moreover, the AJ found that there was a basis for imputing liability to the Agency because it failed to promptly and thoroughly investigate the matter and it failed to take corrective remedial action to ensure that the harassment would not recur.
The AJ ordered, inter alia, the Agency to pay Complainant: (1) $100,000 in non-pecuniary compensatory damages; and (2) $129,216.53 in attorney's fees.5
Regarding non-pecuniary compensatory damages, the AJ found that Complainant experienced emotional harm, mental anguish, loss of enjoyment of life, loss of self-esteem, sleep problems, anxiety, stress, depression, and humiliation from 2006 to 2008 because of the hostile work environment. In addition, the AJ found that, after leaving the Agency in February 2008, Complainant still experiences the residual effects of anxiety, depression, and fearfulness.
Regarding the attorney's fees, the AJ initially found that, per the Laffey Matrix, A1 appropriately charged $420 per hour. The AJ noted that Complainant originally requested $211,981.33 in fees. The AJ, however, excluded $19,120.83 in co-counsel fees6 and then implemented a 33 percent across-the-board fee reduction. The AJ provided several reasons for the fee reduction.
First, the AJ found that the fee petition included excessive and unreasonable hours - such as 31 hours for a response to the Agency's motion for a decision without a hearing, 90 hours for hearings preparation, 53 hours for closing arguments, and 27 hours for the fee petition. In so finding, the AJ referenced two factors: (a) A1's skill and experience; and (b) the similarities between Complainant's case and S1/E3's cases in terms of legal arguments, witnesses, and exhibits. Second, the AJ found that the fee petition contained noticeable questionable entries. Third, the AJ noted that Complainant's case was a typical hostile work environment harassment case. Fourth, the AJ noted that Complainant did not prevail on all of her claims.
The Agency subsequently issued a final order adopting the AJ's finding of no discrimination regarding claims 1b, 1d, and 2; however, the Agency rejected the AJ's finding of sex-based hostile work environment harassment regarding claims 1a and 1e.
CONTENTIONS ON APPEAL
On appeal, the Agency challenged the AJ's decision with respect to the harassment claim, the non-pecuniary compensatory damages, and the attorney's fees.
Regarding the harassment claim, the Agency contended that substantial evidence in the record does not support the AJ's finding of a hostile work environment on the basis of sex. First, the Agency argued that, in finding that S2 treated female employees worse than male employees on the basis of sex, the AJ misconstrued the hearing testimony and erred in crediting the testimony of Complainant and her witnesses over that of the Agency's witnesses. Second, the Agency argued that the AJ applied the incorrect legal standard and that Complainant's allegations are insufficient, as a matter of law, to establish a claim of hostile work environment harassment. Third, the Agency argued that the AJ erred in imputing liability because it conducted a prompt investigation and took remedial action that was timely and effective.
Regarding non-pecuniary compensatory damages, the Agency contended that the AJ's award of $100,000 was excessive. First, the Agency argued that the instant case was distinguishable from the cases cited by the AJ to support the award. Second, the Agency argued that the AJ failed to differentiate between the harm caused by the general hostility in the work environment that all employees were subjected to and the harm allegedly caused by the excess hostility directed specifically towards women.
Regarding attorney's fees, the Agency contended that the AJ's award of $129,216.53 was excessive and requested a further fee reduction of 50 percent. Specifically, the Agency reiterated its previous arguments pertaining to Complainant's fee petition: (a) the number of hours are excessive and unreasonable; (b) A1 represented multiple clients (Complainant, S1, and E3) in concurrent and very similar proceedings and failed to properly allocate her fees between clients; (c) the fee petition contained gross errors; (d) the fee petition lacked proper supporting documentation; (e) the billing statement was not contemporaneously documented; (f) the hourly rate is excessive; and (g) A1's representation was not superior or reasonably commensurate with experience.
In response, Complainant requested that we deny the Agency's appeal. Specifically, Complainant argued that substantial evidence in the record supports the AJ's finding of hostile work environment harassment on the basis of sex. In addition, Complainant argued that the awarded non-pecuniary compensatory damages were appropriate because testimonial evidence supports that she experienced emotional distress as a result of the Agency's actions. Finally, Complainant argued that the Agency failed to show that the record warranted a further reduction in attorney's fees.
ANALYSIS AND FINDINGS
Standard of Review
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. Nat'l Labor Relations Bd., 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 Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at Ch. 9, � VI.B. (Nov. 9, 1999).
Harassment
To establish a claim of harassment a complainant must show that: (1) they belong to a statutorily protected class; (2) they were subjected to harassment in the form of unwelcome verbal or physical conduct involving the protected class; (3) the harassment complained of was based on their statutorily protected class; (4) the harassment affected a term or condition of employment and/or had the purpose or effect of unreasonably interfering with the work environment and/or creating an intimidating, hostile, or offensive work environment; and (5) there is a basis for imputing liability to the employer. See Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982). Further, the incidents must have been "sufficiently severe or pervasive to alter the conditions of [complainant's] employment and create an abusive working environment." Harris v. Forklift Sys., Inc., 510 U.S. 17, 21 (1993). The harasser's conduct should be evaluated from the objective viewpoint of a reasonable person in the victim's circumstances. EEOC Enforcement Guidance on Harris v. Forklift Systems Inc., EEOC Notice No. 915.002, at 6 (Mar. 8, 1994).
With respect to element 5, an employer is subject to vicarious liability for harassment when it is created by a supervisor with immediate (or successively higher) authority over the employee. See Burlington Indus., Inc., v. Ellerth, 524 U.S. 742 (1998); Faragher v. City of Boca Raton, 524 U.S. 775 (1998). However, where the harassment does not result in a tangible employment action the agency can raise an affirmative defense, which is subject to proof by a preponderance of the evidence, by demonstrating: (1) that it exercised reasonable care to prevent and correct promptly any harassing behavior; and (2) that complainant unreasonably failed to take advantage of any preventive or corrective opportunities provided by the agency or to avoid harm otherwise. See Burlington Indust., supra; Faragher, supra; EEOC Enforcement Guidance: Vicarious Liability for Unlawful Harassment by Supervisors, EEOC Notice No. 915.002 (June 18, 1999) (Liability Guidance).
Upon review, we find that substantial evidence in the record supports the AJ's conclusion that, based on the totality of the circumstances, the Agency subjected Complainant to hostile work environment harassment on the basis of sex.
I. Elements 1, 2 and 3 - Unwelcome Conduct based on Sex
Regarding element 1, the record is undisputed that Complainant, a female, is a member of a statutorily protected class. Regarding elements 2 and 3, the record supports the AJ's determination that Complainant was subjected to unwelcome verbal and non-verbal conduct based on her sex. We note that sex-based harassment - that is, harassment not involving sexual activity or language -- may give rise to Title VII liability if it is "sufficiently patterned or pervasive" and directed at employees because of their sex. See EEOC Policy Guidance on Current Issues of Sexual Harassment, No. N-915-050, at Guidance, � C. (Mar. 19, 1990).
Complainant testified about S2's negative behavior towards her and the women in the office, and also his hostility towards women in general. For example, Complainant described S2's actions around the women in the office as "intimidating," "threatening," "abusive," and "condescending." Liability Hearing Transcript (LHT) at 21, 25. In addition, Complainant testified that S2 insinuated that women were stupid and would "talk down" to women as if he did not "think [that] any female had the intelligence of any male." Id. at 25, 31. Further, Complainant testified that S2's "facial expression would be hateful" and that "as far as he was concerned, no woman ever did a job." Id. at 25. Moreover, Complainant testified that S2 spoke to women in a curt manner and "he would be very, very sharp with you. And the tone of his voice, it was more the tone of his voice, the look on his face, his body language than anything else. He made it very well known that you were beneath him." Id. at 59. Finally, Complainant testified that S2 called E1 a "slob," referred to his son's mother as a "bitch," and referred to his granddaughter's mother as a "slut." Id. at 33, 36, 37.
Similarly, S1 and E1 testified about S2's hostile treatment of the women in the office. For example, S1 testified that S2's "tone of voice would change when he would talk to females ... he was more aggressive, he was unprofessional when he talked to females. He would call them stupid, incompetent, question their abilities." Id. at 206. In addition, E1 testified that on "many occasions" she would see S1 "shake his head" at Complainant and act "like he was totally disgusted with her." Id. at 431. Moreover, E1 testified that S2, on an "ongoing" basis, belittled S1 about what she was doing and how she was doing it. Id. at 433.
Likewise, a Union Representative (U1) testified that, on four or five different occasions, he observed how S2 treated Complainant, S1, and E1 differently than he treated E2. Id. at 146. For example, U1 testified that S2 was "demeaning in his manner" to the women in the office and "[s]ometimes his facial expressions would border on the point that he was attempting to ridicule." Id. In contrast, U1 testified that S2's behavior was "always courteous and friendly" to E2. Id. at 151. Moreover, U1 testified that would characterize S2's treatment of the women in the office as sex-based harassment, rather than a just a personality problem or general workplace friction, because he had "never seen [S2] conduct himself that way with a man. It's a simple as that." Id. at 162.
Although the Agency argued that the AJ erred in crediting the testimony of Complainant and her witnesses over the Agency's witnesses, we decline to reweigh the parties' credibility on appeal. We note that the witnesses provided conflicting testimony about S2's behavior towards women. The Agency, however, has not pointed to any objective documentary evidence contradicting the testimony of Complainant and her witnesses, nor has it shown that their testimony so lacks in credibility that a reasonable fact finder would not credit it. See EEO MD-110, at Ch. 9, � VI.B.
II. Element 4 - Unwelcome Conduct Sufficiently Severe or Pervasive
Regarding element 4, the record supports the AJ's determination that, as the result of his frequent humiliation and intimidation of women with his comments and behavior, S2 unreasonably interfered with Complainant's work performance. In determining whether an objectively hostile or abusive environment existed, the trier of fact should consider whether a reasonable person in the complainant's circumstances would have found the alleged behavior to be hostile or abusive. Harris, 510 U.S. at 21. Also, the trier of fact must consider all of the circumstances, including the following: the frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee's work performance. Id. at 23.
Although the Agency argued that the alleged conduct was insufficient, as a matter of law, to establish a claim of hostile work environment harassment, we find that S2's actions were sufficiently pervasive to create an abusive working environment. We emphasize that the relevant question is whether the harassing conduct was "sufficiently severe or pervasive" [emphasis added]. The record reflects that S2 exhibited "a pattern of offensive conduct" towards Complainant and the women in the office for almost a two year period. For example, Complainant testified that S2 made negative comments to women "so much so often ... if he was at work, he was doing this." LHT, at 33. In addition, Complainant testified that S2 "was just belligerent and abusive constantly" and that his pattern of behavior lasted "the whole time [she] was there" - almost two years. Id. at 35. Moreover, S1 testified that "[t]here were so many times that [S2] was abusive and it was on a continued basis." Id. at 206. Further, E1 testified that she witnesses S2 putting down Complainant or harassing her "almost every day that he was in our office." Id. at 440. Finally, Complainant testified that S2's treatment of her "made it exceedingly difficult" to perform her job and "the longer time went on, the worse he got, and nothing was stopping him." Id. at 57.
Accordingly, we agree with the AJ that, from a reasonable person's point of view, the harassment had the purpose or effect of unreasonably interfering with the work environment and/or creating an intimidating, hostile, or offensive work environment.
III. Element 5 - Liability and Second Prong of Affirmative Defense
Regarding element 5, the record supports the AJ's determination that there is a basis for imputing liability to the Agency. In so finding, we note that the Agency failed to demonstrate, by a preponderance of the evidence, the second prong of the affirmative defense: that Complainant unreasonably failed to take advantage of any preventive or corrective opportunities provided by the Agency or to avoid harm otherwise. We note that the Agency's closing and appellate arguments focused only on the reasonableness of its own actions (the first prong of the affirmative defense) and find that the Agency has not met its burden to prove that Complainant acted unreasonably. We emphasize that an employee who failed to complain (or delayed complaining) does not carry a burden of proving the reasonableness of that decision; rather, the burden lies with the employer to prove that the employee's failure to complain (or delay complaining) was unreasonable. See Liability Guidance, at � V.D.
REMEDIES
As Complainant established that she was subjected to sex-based hostile work environment harassment, we now turn to the matter of the remedy to which she may be entitled.
AJ's Award of $100,000 in Non-Pecuniary Compensatory Damages
Because discrimination was found, the Agency must provide Complainant with a remedy that constitutes full, make-whole relief to restore her as nearly as possible to the position she would have occupied absent the discrimination. See, e.g., Franks v. Bowman Transport. Co., 424 U.S. 747, 764 (1976); Albermarle Paper Co. v. Moody, 422 U.S. 405, 418-19 (1975); Adesanya v. U.S. Postal Serv., EEOC Appeal No. 01933395 (July 21, 1994). Pursuant to Section 102(a) of the Civil Rights Act of 1991, a complainant who establishes unlawful intentional discrimination under Title VII may receive compensatory damages for past and future pecuniary losses (i.e., out-of-pocket expenses) and non-pecuniary losses (e.g., pain and suffering, mental anguish) as part of this "make whole" relief. 42 U.S.C. � 1981a(b)(3). In West v. Gibson, 527 U.S. 212 (1999), the Supreme Court held that Congress afforded the Commission the authority to award compensatory damages in the administrative process. For an employer with more than 500 employees, such as the Agency, the limit of liability for future pecuniary and non-pecuniary damages is $300,000. 42 U.S.C. � 1981a(b)(3).
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 Enforcement Guidance: Compensatory and Punitive Damages Available Under Section 102 of the Civil Rights Act of 1991, EEOC Notice No. 915.002, at II.A.2 (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). The Commission notes 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. Further, compensatory damages should not "monstrously excessive" standing alone, should not be the product of passion or prejudice, and 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) (citing Cyngar v. City of Chicago, 865 F.2d 827, 848 (7th Cir. 1989)).
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 a complainant concerning her 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. A complainant's own testimony, along with the circumstances of a particular case, can suffice to sustain her 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 this case, the AJ primarily relied on testimony from Complainant, one of Complainant's best friends (F1),7 and S1 as objective evidence for awarding $100,000 in non-pecuniary compensatory damages for emotional distress.
Complainant testified that her "entire life changed" and that she "cannot be made whole again ... The damage has been too great." DHT, at 43, 48. Specifically, Complainant testified, "It [the stress from her work environment] affected me 24 hours a day, seven days a week. I didn't feel like doing anything ... I'd go home on the weekends, close the door, and that's where I'd be ... my entire life was work and home. That was it." Id. at 40-41. In addition, Complainant testified, "I --- I just lost all --- to me, life was --- I was hanging on, but that was about it ... I couldn't enjoy anything." Id. at 46. Further, Complainant testified that she became "morose," "haggard," "on edge," and developed "a short fuse." Id. at 39, 41, 43. Moreover, Complainant testified that she experienced depression,8 digestive problems, sleep disturbance and nightmares, crying spells, and episodic high blood pressure. Id. 39-41, 46, 56-57. Finally, Complainant testified that the last place she was "both healthy and happy" was in Germany and that she is not currently healthy - "[M]y systems have suffered from the stresses, and it has --- we have yet to reverse it." Id. at 55.
F1 testified that Complainant - previously a very sociable and outgoing person who enjoyed activities such as traveling, sightseeing, and quilting - became angry, anxious, depressed, fearful, and stopped participating in the activities she had once enjoyed. Id. at 7, 9-10. In addition, F1 testified that Complainant's self-esteem "went downhill" and that "the look on [her] face and the way she carried herself changed altogether." Id. at 9-10. Further, F1 testified that Complainant rarely left the house, would sit around in her pajamas all the time, had "greasy" hair, and stopped cleaning her house to the point where it became "filthy." Id. at 10-11.
S1 testified that Complainant felt hopeless, slept all the time, withdrew from people, and started getting angry. Id. at 22, 24. In addition, S1 testified that Complainant did not make new friends and became "a recluse." Id. at 24. Further, S1 testified that Complainant's house "looked like she had started unpacking, and she had never finished." Id. at 21. Moreover, S1 testified that Complainant's health deteriorated and the fire department had to be called to check her blood pressure at work because it was so high. Id. at 21, 27.
We note that the Agency on appeal did not specifically dispute any of the testimony pertaining to damages, but instead argued that the alleged harm Complainant experienced did not warrant a $100,000 award.
Based on our review of the evidence in light of the Commission's cases regarding non-pecuniary damages awarded for emotional harm, we find that substantial evidence in the record supports the AJ's award of $100,000. We find that the amount is not "monstrously excessive" standing alone, is not the product of passion or prejudice, and is consistent with Commission precedent. Although the Agency argued that the award was excessive, it did not suggest a lesser amount that might be appropriate.
In other cases, the Commission has awarded similar amounts for emotional harm such as anxiety, depression, stress, fearfulness, mental anguish, loss of enjoyment of life, loss of self-esteem, sleep problems, and humiliation. See Jackson v. Dep't of the Air Force, EEOC Appeal No. 0720110036 (Mar. 13, 2012) ($125,000 awarded in 19-month harassment case where complainant experienced anxiety, depression, post-traumatic stress disorder, sleep problems, loss of enjoyment of life, loss of self-esteem, damage to professional reputation, and withdrawal from relationships); Robinson v. Dep't of the Treasury, EEOC Appeal No. 0720070015 (May 22, 2008) ($85,000 awarded as a result of a discriminatory hostile work environment that resulted in emotional pain and suffering, mental anguish, health problems, anxiety, stress, depression, loss of self-esteem, and excessive fatigue); Morrison v. U.S. Postal Serv., EEOC Appeal No. 07A50003 (Apr. 18, 2006) ($90,000 awarded in one-year harassment case where complainant experienced depression, anxiety, sleeplessness, post-traumatic stress disorder, and where complainant's psychological trauma continued well past the date she resigned from the agency).
Accordingly, considering the nature, duration, and severity of Complainant's emotional harm and with reference to damage awards reached in comparable cases, we affirm the AJ's award of $100,000 in non-pecuniary compensatory damages.
AJ's Award of $129,216.53 in 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, Complainant must first show that she is a prevailing party. Buckhannon Bd. & Care Home Inc. v. W. Va. Dept. of Health & Human Res., 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 Transp., 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." Id. However, the attorney does have the burden of identifying the subject matters which he spent his time by submitting sufficiently detailed and contemporaneous time records to ensure that the time spent was accurately recorded. Id.
Further, a reasonable fee award may be assessed in light of factors such as: (1) the time required (versus time expended) to complete the legal work; (2) novelty or difficulty of the issues; (3) the requisite skill to properly handle the case; (4) the degree to which counsel is precluded from taking other cases; (5) the relief sought and results obtained; and (6) the nature and length of the attorney-client relationship. See Cerny v. Dep't of the Army, EEOC Request No. 05930899 (Oct. 19, 1994). Complainant is only entitled to an award for time reasonably expended. It does not always follow that the amount of time actually expended is the amount of time reasonably expended. Elvin v. Dep't of Labor, EEOC Request No. 01943425 (Aug. 31, 1995). Rather, "billing judgment" is an important component in fee setting, and hours that would not be properly billed to a private client are also not properly billed to an agency pursuant to a successful EEO claim. Id. Counsel for the prevailing party should make a "good faith effort to exclude from a fee request hours that are excessive, redundant or otherwise unnecessary." See Bernard, supra.
Upon review, we find that the AJ's award of $129,216.53 in attorney's fees is appropriate.
First, we agree with the AJ that A1's reasonable hourly rate is $420. A reasonable hourly rate is a rate based on "prevailing market rates in the relevant community" for attorneys of similar experience in similar cases. Cooley v. Dep't of Veterans Affairs, EEOC Request No. 05960748 (July 30, 1998) (quoting Blum v. Stenson, 465 U.S. 886 (1984)). The fee petition indicates that A1 is an attorney in the Washington, DC area with just under 20 years of experience. Per the Laffey Matrix, the hourly rate for an attorney with A1's years of experience is $420.
On appeal, the Agency argued that Complainant did not show any difficulty in finding competent counsel in North Carolina. The Commission has held that if a party does not find counsel readily available in that locality with whatever degree of skill that may reasonably be required, it is reasonable that the party go elsewhere to find an attorney. See Southerland v. U.S. Postal Serv., EEOC Appeal No. 01A05403 (Oct. 16, 2002). The burden is on the agency to show that a complainant's decision to retain out-of-town counsel was not reasonable. Id. Here, merely by asserting that Complainant did not show any difficulty in finding competent counsel in North Carolina, we find that the Agency has failed to meet its burden.
Second, we agree with the AJ that a 33 percent across-the-board fee reduction is warranted. When reviewing fee petitions which contain many excessive, redundant, unnecessary, or inadequately documented expenditures of time, in lieu of engaging in a line-by-line analysis of each charge claimed, the Commission may calculate the number of hours compensable by applying an across-the-board reduction to the number of hours requested. See, e.g., Bernard, supra.
Here, the record reflects that, as articulated by the AJ, the fee petition included noticeable questionable entries. For example, the fee petition contained entries on November 16-17, 2010 related to the drafting of opening and closing arguments - even though A1 had submitted closing arguments on March 3, 2010 and the AJ had neither issued a decision on liability nor scheduled a hearing on damages. Fee Petition, Ex. A, at 20-21. In addition, the fee petition contained entries related to the reviewing and re-reviewing of documents from the cases of S1 and E3 while A1 was simultaneously preparing for those cases. Id. at 2, 12, 26. Further, the fee petition contained entries related to the reviewing of Complainant's transcripts after A1 had completed most of the closing arguments. Id. at 19. Finally, we note A1's admission in her February 3, 2011 reply to the Agency's response to Complainant's fee petition that the fee petition contained other erroneous entries.
We also agree with the AJ that the hours documented in the fee petition appear to be excessive and unreasonable. Specifically, we note that A1, an attorney with almost 20 years of experience exclusively in the area of federal sector employment law, expended almost 500 hours litigating Complainant's sex-based hostile work environment complaint. In addition, there is no indication in the record that Complainant's hostile work environment harassment case involved issues that were particularly novel or difficult; in fact, A1 informed the AJ in an October 28, 2009 email that "the legal issues are not complicated." Further, the record reflects that A1 represented Complainant, S1, and E3 concurrently and that all three cases involved similar facts, the same responsible management officials, and the same legal theory. Finally, the record reflects that Complainant did not prevail on all of her claims.
Based on the above reasons, we find that the AJ's 33 percent across-the-board reduction in attorney's fees was reasonable and appropriate. Although the Agency argued for an additional 50 percent reduction, we are not convinced that a further reduction is warranted. We note that the AJ's reduction seems reasonable considering the noticeable questionable entries in the fee petition and other factors in the case.
Accordingly, we affirm the AJ's award of $129,216.53 in attorney's fees.
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 order, AFFIRM the AJ's finding of discrimination, and AFFIRM the AJ's order of relief. We REMAND the matter to the Agency for further processing in accordance with this decision and the ORDER below.
ORDER
The Agency is ordered to take the following remedial actions within sixty (60) calendar days of the date this decision becomes final:
1. The Agency shall pay Complainant non-pecuniary compensatory damages in the amount of $100,000;
2. The Agency shall pay Complainant's attorney reasonable attorney's fees ($129,216.53) and costs ($894.80);
3. The Agency shall provide eight (8) hours of EEO training to the responsible management officials regarding their responsibilities under EEO laws, particularly Title VII;
4. The Agency shall consider taking appropriate disciplinary action against the responsible management officials. The Commission does not consider training to be disciplinary action. The Agency shall report its decision to the Compliance Officer. 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. If the responsible management officials have left the Agency's employ, the Agency shall furnish documentation of their departure dates.
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 documentation indicating that the corrective action has been implemented.
POSTING ORDER (G0610)
The Agency is ordered to post at Seymour Johnson Air Force Base in North Carolina copies of the attached notice. Copies of the notice, after being signed by the Agency's duly authorized representative, shall be posted by the Agency within thirty (30) calendar days of the date this decision becomes final, and shall remain posted for sixty (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 ten (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)), 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 (November 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
___5/15/12_______________
Date
1 On September 16, 2011, Complainant filed a response to the Agency's appeal and a cross-appeal challenging the attorney's fees and costs awarded by the AJ. A review of the Agency's June 14, 2011 final order reveals that the Agency properly advised Complainant that she had 30 calendar days after receipt of the final order to file her appeal with the Commission. A U.S. Postal Service Domestic Return Receipt reflects that Complainant's attorney (A1) received the Agency's final order on June 16, 2011. Complainant was granted an extension of time to file her response. Therefore, in order to be considered timely, Complainant had to file her cross-appeal no later than July 18, 2011. See 29 C.F.R. � 1614.402. Although we will consider Complainant's response to the Agency's appeal, we will not address the matters raised in her untimely cross-appeal.
2 Complainant began working for the Agency in March 2006. Prior to that, Complainant had worked in Germany for another agency for 17 years.
3 Complainant, E1, S1, and another CERF employee (E3 - female) all filed EEO complaints around the same time alleging that S2 subjected them to hostile work environment harassment on the basis of sex. A1 represented Complainant, S1, and E3 during the EEO proceedings. The Agency consolidated the three complaints for investigation. The AJ denied A1's request to consolidate the three complaints during the hearing stage.
4 Complainant withdrew claim 1c at the hearing.
5 The AJ also ordered the Agency to pay Complainant $894.80 in attorney's costs. The Agency did not challenge the attorney's costs on appeal.
6 The AJ found that Complainant presented insufficient justification for the use of a co-counsel because the complaint did not contain a large number of pleadings, the complaint did not involve complex legal issues, the complaint did not raise novel legal arguments, and the hearing was relatively short (approximately three and a half days).
7 Complainant and F1 testified that they have been friends for almost ten years and talk at least two to three times a week. Damages Hearing Transcript (DHT), at 6, 34.
8 When asked if she received a clinical diagnosis of depression, Complainant testified that she never sought treatment for the illness because she did not want to jeopardize her security clearance. Id. at 44.
---------------
------------------------------------------------------------
---------------
------------------------------------------------------------
2
0720110035
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0720110035