EEOC Appeal No. 0120133384
09-15-2015
Complainant v. Tenn. Valley Auth.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Complainant,
v.
Bill Johnson,
President and Chief Executive Officer,
Tennessee Valley Authority,
Agency.
Appeal Nos. 0120133384 and 0120133385
Agency No. 0420-2009040
DECISION
Complainant filed two appeals with this Commission from two Agency final decisions, dated February 5, 2013 and April 8, 2013, concerning an award of attorney's fees and compensatory damages. The Commission accepts the appeals in accordance with 29 C.F.R. � 1614.405. Further, pursuant to 29 C.F.R. � 1614.606, we exercise our discretion to consolidate the appeals into a single decision.
BACKGROUND
During the period at issue, Complainant worked as a Maintenance Coordinator at the Agency's Electrical Maintenance Department, Shawnee Fossil Plant in Paducah, Kentucky.
On April 20, 2009, Complainant filed a formal EEO complaint claiming that the Agency discriminated against him on the basis of race (African-American) when:
in February 2009, he was not selected for the position of Maintenance Supervisor at Shawnee Fossil Plant advertised under Vacant Position Announcement Number 24017.
After the investigation of the claim, the Agency provided Complainant with a copy of the report of investigation and notice of the right to request a hearing before an Equal Employment Opportunity Commission (EEOC) Administrative Judge (AJ). In accordance with Complainant's request, the Agency issued a final decision on September 30, 2009, pursuant to 29 C.F.R. � 1614.110(b). In its final decision, the Agency found no discrimination concerning the non-selection for the position of Maintenance Supervisor.
Complainant appealed. On appeal, the EEOC reversed the Agency's final decision, concluding Complainant had been subjected to discrimination based on his race when he was not selected for the Maintenance Supervisor position. Among other remedies, the Agency was ordered to provide back pay, compensatory damages and attorney's fees. Duncan v. Tennessee Valley Administration, EEOC Appeal No. 0120100344 (December 14, 2011), Agency's request for reconsideration denied, EEOC Request No. (November 9, 2012).
In addition, Appeal No. 0120100344 determined that the Agency did not properly amend Complainant's formal complaint to include a separate claim regarding a reassignment. The Agency was ordered to investigate and further process that reassignment claim.1
On February 5, 2013, the Agency issued a final decision on attorney's fees and costs. Complainant's appeal of the February 5, 2013 final decision has been assigned EEOC Appeal No. 0120133384.
On April 8, 2013, the Agency issued a decision on compensatory damages. Complainant's appeal of that matter is presently before us as EEOC Appeal No. 0120133385.
ANALYSIS AND FINDINGS
EEOC Appeal No. 012013384
Attorney's Fees and Costs
On December 9, 2012, Complainant's attorneys filed a fee petition with the Agency for attorney's Fees and costs in the amount of $16,250.50 for 74.10 hours of attorney time on behalf of Complainant. The hourly rates charged by the attorneys ranged from $500 for a named partner at the high end to $200 for the work of an associate at the low end. The 74.10 hours of work, according to the fee petition was the result "of counseling the Complainant regarding the initiation of the EEO process, evidence gathering, litigation strategy formulation, preparation for investigation, representation at the administrative hearing, and representation throughout the OFO appeal and reconsideration process resulting in this petition." Submitted with the fee petition was a billing statement detailing the time expended on particular tasks by particular attorneys.
On February 5, 2013, the Agency issued a final decision on attorney's fees. As an initial matter, the Agency determined that due to a lack of adequate documentation explaining the function of PC Law,2 the amount of $3,908.50 should be reduced from the requested attorney's fees, reducing the request to $12,342. The Agency then determined that the remaining $12,342 was excessive, asserting this was a simple non-selection case with no hearing. Finally, with regard to the hourly rates claimed, the Agency asserted that the attorneys did not provide a clear description of the credentials of the various attorneys who worked on the case, as well as adequate evidence of the prevailing market rates in the relevant community for attorneys of similar experience in similar cases. Therefore, the Agency applied an across-the-board 25% percentage reduction to the $12,342, resulting in a total award of $9,256.86.
The instant appeal followed.
Complainant is entitled to an award of reasonable attorney's fees and other legal costs incurred in the resolution of his complaint resulting in a finding of discrimination in violation of Title VII. 29 C.F.R. � 1614.501(e). Attorney's fees are computed by determining the "lodestar," the number of hours reasonably expended multiplied by a reasonable hourly rate. Hensley v. Eckerhart, 461 U.S. 424, 434 (1983); 29 C.F.R. � 1614.501(e)(2)(ii)(B). The number of hours should not include excessive, redundant, or otherwise unnecessary hours. Hensley, 461 U.S. at 434; Bernard v. Department of Veteran Affairs, EEOC Appeal No. 01966861 (July 17, 1998). 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. Department of Veterans Affairs, EEOC Request No. 05960748 (July 30, 1998) (quoting Blum v. Stenson, 465 U.S. 886 (1984)).
The attorney requesting the fee award has the burden of proving, by specific evidence, entitlement to the requested fees and costs. Hyde v. Department of Justice, EEOC Appeal No. 0120073964 (November 24, 2009); Koren v. United States Postal Service, EEOC Request No. 05A20843 (February 18, 2003). EEOC regulations require the complainant's attorney to submit a verified statement of attorney's fees and other costs to the agency or AJ within thirty days of receipt of the decision and submit a copy of the statement to the agency. 29 C.F.R. � 1614.501(e)(2)(i). A verified statement of fees and costs includes: (1) an itemized list of services rendered; (2) documentary evidence of reasonableness of hours; (3) documentary evidence of reasonableness of rate; and (4) documentation of costs. The MD-110 provides that the statement shall include "documentary evidence of reasonableness of rate" which may consist of "an affidavit stating that the requested rate is the attorney's normal billing rate . . ." EEOC Management Directive 110, Chapter 11, Sect. VI (August 15, 2015).
With regard to the hourly rates requested in this case, the managing partner of the law firm representing Complainant has provided a declaration setting forth his own education and experience. Regarding his customary rate, the attorney stated that his customary fee is $500 per hour. However, the record does not contain any evidence outlining the credentials of the other attorneys in the firm who performed the bulk of the work on Complainant's behalf. While the fee petition contains the 2009 Hourly Rate Fact Sheet for rates for fee requests of cases filed in federal court in the Atlanta area, this rate sheet is impossible to apply without knowing the credentials of each attorney who worked on Complainant's case.
With regard to the number of hours worked, unlike the Agency, we decline to find that the bulk of 74.10 hours requested in this case was unreasonable based on the complexity of the case. Complainant had to appeal the Agency's original finding of no discrimination to this Commission, and then defend that finding in the face of the Agency's request for reconsideration. In addition, Complainant's attorneys worked on his claim for compensatory damages, as well as their own fee petition, a remedy ordered by this Commission. We do question, however, some redundancy in billing as 16 attorneys in the firm did some work on the case, resulting in some duplicative efforts and consultations.
Accordingly, based on the lack of evidence supporting the hourly rates of all the attorneys involved and some duplicative efforts, we find that the 25% across-the-board reduction applied by the Agency was justified, although we will apply it to the total request of $16,250.50 for a total fee award of $12,187.88.
EEOC Appeal No. 0120133385
Compensatory Damages
On April 8, 2013, the Agency issued its final decision on compensatory damages. The Agency determined that because Complainant did not submit evidence of pecuniary losses and medical evidence, he was only entitled to $1,000 in non-pecuniary compensatory damages.
The instant appeal followed.
When discrimination is found, the agency must provide the complainant with full, make-whole relief to restore him as nearly as possible to the position he would have occupied absent the discrimination. See, Franks v. Bowman Transportation Co., 424 U.S. 747, 764 (1976); Albemarle Paper Co. v. Moody, 422 U.S. 405, 418-19 (1975); Adesanya v. Postal Service, EEOC Appeal No. 01933395 (July 21, 1994). The Commission recognizes that precise measurement cannot always be used to reduce the wrong inflicted. Nonetheless, we believe that the burden of limiting the remedy rests with the agency. See Davis v. U. S. Postal Service, EEOC Petition No. 04900010 (November 29, 1990).
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), recon. denied, 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).
Non-pecuniary damages for pain and suffering
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).
We find that given the specifics of facts in this case, the Agency's remedial award of $1,000.00 in non-pecuniary compensatory damages was inappropriate. In his affidavit, Complainant stated that he suffered from anxiety, depression, mental anguish and chronic sleepless after being discriminated against by the Agency that affected his marriage and his relationship with his family and friends. Complainant further stated that he experienced ongoing humiliation. Specifically, Complainant stated, "I know everyone is aware that all of the candidates for this position, I was erroneously ranked next to last by the TVA. I still have to face these people every day and deal with them thinking that I am not good enough to serve in that capacity, and that I am just another 'black person crying.' Management [has] done a pretty effective job of character assassination, so it is hard to face the people at work and those in the community that know."
Further, Complainant stated that the Agency's adverse actions had damaged his reputation. Complainant stated that, "a derogatory and highly offensive flyer was circulated around my job site in the form of a 'Hurt Feelings Report.' This is attached as Exhibit A. It uses terms such as 'candy ass, 'whiner,' 'wimp,' and other derogatory terms about employees who report unlawful discrimination against the Agency. This official looking document was circulated immediately as a response to the posting that was ordered by the EEOC to be posted on my job site because of my discrimination. Everybody knows that this offensive flyer was intended for me due to the timing of the court-ordered posting and the circulation of the flyer. Clearly, my reputation has been harmed."
Complainant also provided letters of his pastor and a friend in addition to his own affidavit attesting to his claim of emotional harm. In Carle v. Dep't of the Navy, the Commission explained that "objective evidence" of non-pecuniary damages could include a statement by Complainant explaining how he was affected by the discrimination. EEOC Appeal No. 01922369 (January 5, 1993). Statements from others, including family members, friends, and health care providers can address the outward manifestations of the impact of the discrimination on the complainant. Id. Moreover, while it can strengthen a claim, evidence from a health care provider or other expert is not a mandatory prerequisite for recovery of compensatory damages for emotional harm. Lawrence v. United States Postal Service, EEOC Appeal No. 01952288 (April 18, 1996).
After a review of the record in its entirety, including consideration of all statements submitted on appeal, it is the decision of the Commission to modify the Agency's award of non-pecuniary compensatory damages. We find the award of $1,000 of non-pecuniary compensation damages is incorrect in light of the amount awarded in similar cases, the severity of harm and duration of the harm.
Given the Agency's adverse conduct here was inherently degrading and humiliating, we find it reasonable to accept Complainant's affidavit of emotional distress to support an award for emotional damages. We find it appropriate to award Complainant $35,000 because his affidavit testimony, along with his supporting witnesses, established that, for a duration of approximately three years, he felt humiliated and degraded when he was not selected for the subject position. This award is not "monstrously excessive" standing alone, is not the product of passion or prejudice, and is consistent with the amount awarded in similar cases. See Castillo v. Dep't of the Interior, EEOC Appeal No. 01990818 (July 16, 2002) ($35,000 in non-pecuniary damages where complainant testified to emotional distress, stress at work, anger and tension for a period of approximately three years); Carlson v. Dep't of Justice, EEOC Appeal No. 01A51437 (April 27, 2005) ($30,000 in nonpecuniary damages where complainant testified that he suffered depression, anger, alienation, humiliation, embarrassment, and loss of status); and Garrett v. U.S. Postal Service, EEOC Appeal No. 07A30024 (February 25, 2004) ($35,000 in non-pecuniary damages where complainant experienced emotional distress, depression, anger, embarrassment, humiliation, headaches, and sleep difficulties).
Pecuniary compensatory damages
Pecuniary damages are quantifiable out-of-pocket expenses incurred as a result of the Agency's discriminatory actions. Past pecuniary damages are those which occurred up to the finding of discrimination. Future pecuniary damages are losses likely to occur after the resolution of the complaint.
Here, Complainant has not produced any evidence of past pecuniary damages. However, Complainant asserts that the discrimination he suffered him caused his future earning potential and retirement goals to diminish. Specifically, Complainant claimed that he lost "fast track" opportunities by comparing himself with the person who replaced him in his former position when he was reassigned to a different position, and "the salary of the job that was given to him as compensation for his claim is still more than $5,000.00 a year less than the Maintenance Supervisor position that he was not selected for. Any future raises or promotions will be based off this currently lower salary, rather than the higher amount. This also applies to his retirement contributions, and therefore affects his retirement goals."
We find that Complainant's claim of lost "fast track" opportunities is too speculative to support an award of damages. With regard to his claim for subsequent raises had he been selected for the position in question, this should be compensated for in his back pay award, not as a part of his compensatory damage award. Therefore, we find no basis to award Complainant pecuniary damages.
CONCLUSION
Accordingly, we MODIFY the Agency's February 5, 2013 final decision to award Complainant $12,187.88 in attorney's fees and costs, as well as the Agency's April 8, 2013 final decision to increase the award to $35,000 in non-pecuniary compensatory damages for emotional harm.
The case is hereby REMANDED to the Agency for further processing in accordance with the Order below.
ORDER
The Agency is ordered to take the following remedial action, to the extent that it has not already done so:
1. Within sixty (60) calendar days of the date this decision becomes final, the Agency shall tender to Complainant $35,000 in non-pecuniary compensatory damages.
2. Within sixty (60) calendar days of the date that this decision becomes final, the Agency shall tender to Complainant $12,187.88 in attorney's fees and costs.
The Agency is further directed to submit a report of compliance, as provided in the statement entitled "Implementation of the Commission's Decision." The report shall include supporting documentation verifying that the corrective action has been implemented.
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 (T0610)
This decision affirms the Agency's final decision/action in part, but it also requires the Agency to continue its administrative processing of a portion of your complaint. 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 on both that portion of your complaint which the Commission has affirmed and that portion of the complaint which has been remanded for continued administrative processing. 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 your appeal with the Commission, until such time as the Agency issues its final decision on your complaint. 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 (Z0815)
If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may request permission from the court to proceed with the civil action without paying these fees or costs. Similarly, if you cannot afford an attorney to represent you in the civil action, you may request the court to appoint an attorney for you. You must submit the requests for waiver of court costs or appointment of an attorney directly to the court, not the Commission. The court has the sole discretion to grant or deny these types of requests. Such requests do not alter the time limits for filing a civil action (please read the paragraph titled Complainants Right to File a Civil Action for the specific time limits).
FOR THE COMMISSION:
______________________________ Carlton M. Hadden's signature
Carlton M. Hadden, Director
Office of Federal Operations
September 15, 2015
__________________
Date
1 The record reflects that following the Commission's December 14, 2011 decision, the Agency conducted a supplemental investigation concerning Complainant's reprisal claim when he was removed from his position and reassigned to another position two days after filing the instant formal complaint. The Agency issued a final decision on February 7, 2013, finding no discrimination. Thereafter Complainant filed another appeal which is pending before the Commission. Duncan v. Tennessee Valley Authority, EEOC Appeal No. 0120131406.
2 It appears that PC Law is time accounting and billing software developed by Lexis/Nexis.
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