0120110103
09-28-2012
Deborah Gunther, Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service (Capital Metro Area), Agency.
Deborah Gunther,
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service
(Capital Metro Area),
Agency.
Appeal No. 0120110103
Hearing Nos. 531-2008-00004X; 531-2007-00133X
Agency Nos. 4K-210-0093-06; 4K-210-0051-07
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts Complainant's appeal from the Agency's August 20, 2010 final order concerning her equal employment opportunity (EEO) complaint alleging 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. For the following reasons, the Commission AFFIRMS the Agency's final order.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Rural Letter Carrier at the Agency's Post Office facility in Severn, Maryland. Complainant and her supervisors began having workplace conflicts in April 2006. On April 21, 2006, Complainant's immediate supervisor (S1) issued Complainant a Letter of Warning for failing to follow instructions by not locking her postal vehicle. Complainant denied that she failed to lock her postal vehicle during her pre-disciplinary interviews (PDIs) with S1. During the first PDI, Complainant raised concerns about her job, her pay, the Agency cutting routes, and her friend's suicide that she believed was caused by the Postmaster and a former supervisor.
Complainant and S1 were engaged in several other confrontations including one incident where Complainant refused to show S1 her badge during one of S1's daily badge checks. In addition, Complainant challenged S1 during stand-up discussions in front of other employees. S1 stated that Complainant often voiced her complaints on the workroom floor in front of other co-workers. S1 believed that Complainant was disrespectful, rude, and attempted to belittle her in front of her employees.
S1, with the Postmaster's approval, instituted a change in the leave policy. Under the new rules, all leave slips had to be submitted by the Wednesday preceding the start of the new work week. Complainant was informed of the new policy. On Wednesday, July 19, 2006, the leave schedule for July 22, 2006 to July 28, 2006 was posted. Complainant did not timely request her desired leave for July 26, 2006, and it was not approved. Complainant requested an exception to the deadline policy, but S1 denied her request. Complainant became hostile and engaged in an angry verbal confrontation with S1. Complainant submitted a leave slip for the day several more times and each time S1 denied the request. Complainant requested that the Postmaster intervene and subsequently, S1 approved the leave request.
S1 conducted a PDI with Complainant regarding her verbal outburst over S1's leave disapproval. S1 informed Complainant that she would not tolerate Complainant's disrespectful and disruptive conduct on the workroom floor. S1 later had another PDI with Complainant after Complainant continued to make comments on the workroom floor and during stand-up discussions. On August 7, 2006, S1 issued Complainant a 7-Day Notice of Paper Suspension for the verbal altercation on July 21, 2006 for violating workplace violence rules. S1 stated that she issued the Notice because of Complainant's multiple outbursts. Further, S1 had previously issued Complainant a Letter of Warning for failure to follow rules and she considered Complainant's violation of the leave policy to be another failure to follow an established rule. On November 14, 2006, Complainant filed an EEO complaint regarding the suspension.
On or about November 15, 2006, Complainant's substitute carrier approached her and asked her if she was taking time off for Thanksgiving because her name was not on the posted list of employees taking leave. Complainant then approached her then-supervisor (S2) and asked about her Thanksgiving leave. S2 informed Complainant that she had not received a leave request for Thanksgiving from her. Complainant believed that she placed her leave request far in advance. Despite finding no leave slip from Complainant, management granted Complainant time off for Thanksgiving as a courtesy in an attempt to let Complainant know that S1 and S2 were both willing to work with her.
On November 16, 2006, Complainant claimed that she submitted a duplicate leave slip for the period from December 26, 2007 to January 3, 2007. All unsigned leave slips were required to be placed in a box on S2's desk for approval. S2 stated that she never received the leave slip in question and Complainant never inquired about whether the leave had been granted. Complainant did not show up for work from December 26, 2006 until January 3, 2007. S2 was informed by a substitute carrier that Complainant would not be reporting to work. As a result, S2 did not call Complainant when she did not report and instead rearranged the schedules of substitute carriers. Sometime between December 26, 2006 and January 3, 2007, S2 found Complainant's unsigned and unapproved leave slip in the box usually designated for approved or disapproved leave, instead of the box for requested but not yet approved leave.
Complainant attended another PDI with S2 in January 2007, regarding her unauthorized absences from December 26, 2006 through January 3, 2007. During the PDI, S2 asked Complainant to drop her prior EEO complaint. S2 did not threaten to discipline Complainant if she did not drop the complaint, but asked Complainant based upon their 20-year friendship. Nonetheless, on January 18, 2007, Complainant was charged as absent without leave (AWOL) from December 26, 2006 through January 3, 2007. Additionally, on January 25, 2007, Complainant was issued a Letter of Warning for her unscheduled absences from December 26, 2006 through January 3, 2007. S1 and S2 signed the Letter of Warning.
On March 1, 2007, Complainant was scheduled to attend mediation on her EEO complaint. S1 had informed Complainant that she was to attend the mediation and then perform office work while substitutes delivered her route. When the mediation lasted only 45 minutes, S1 instructed Complainant to deliver her route. Complainant stated that she was not dressed to deliver her route, but did not ask to be excused from delivering. Complainant completed her route and returned to the office an hour and half later than her normal time. While Complainant was delivering her route, S1 reconfigured her case. Complainant had configured her case the same way for 20 years. S1 had previously warned Complainant that her case would be reconfigured. S1 believed that Complainant's configuration caused her to waste time as she had started to miss the dispatch truck and was not able to finish her mail.
On November 15, 2007, Complainant asked S1 if she could curtail her third class mail for later delivery because she had an Express Mail item that had to be delivered before 3:00 p.m. and she feared that it would rain. S1 did not permit Complainant to curtail her mail and, instead, told Complainant to put up the rest of her mail while S1 delivered the Express Mail. Delivering Express Mail was not one of S1's duties, but she was trying to help Complainant.
Complainant filed two EEO complaints alleging that the Agency discriminated against her on the bases of race (Caucasian) and in reprisal for prior protected EEO activity1 when:
1. On August 7, 2006, she was issued a 7-day paper suspension for improper conduct;
2. On January 12, 2007, she was advised by the acting supervisor to drop her EEO complaint against the acting manager;
3. On January 18, 2007, she was charged with absent without leave (AWOL) for the dates December 26, 2006 through January 3, 2007;
4. On January 25, 2007, she received a Letter of Warning for unscheduled absences;
5. On March 1, 2007, she was instructed to deliver her route, and her supervisor changed her case configuration; and
6. On November 15, 2007, her request to curtail delivery of third class mail was denied.
At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation (ROI) and notice of her right to request a hearing before an EEOC Administrative Judge (AJ). Complainant timely requested a hearing. On December 7, 2007, the AJ granted Complainant's motion and consolidated her two complaints. The AJ held a hearing on April 10 and 30, 2008, and issued a decision on March 26, 2010.
AJ'S DECISION
In the decision, the AJ found that the Agency had articulated legitimate, nondiscriminatory reasons for its actions. Specifically, as to claim (1), Complainant received the paper suspension after she had previously been disciplined with a Letter of Warning on April 21, 2006 for failing to lock her postal vehicle. Thus, the seven-day paper suspension issued was appropriate discipline for a second offense under the Agency's progressive disciplinary system. Further, Complainant had repeatedly criticized S1 in front of other employees at the regular stand-up discussions. As a result, Complainant received the 7-day paper suspension after four such incidents.
Regarding claims (3) and (4), Complainant did not timely submit a leave slip for July 26, 2006 and entered into an altercation with S1 over her failure to do so. Complainant failed to submit a leave slip for Thanksgiving 2006, but received permission to take the leave from S1 as a courtesy. The incident surrounding the leave request for December 26, 2006 through January 3, 2007, was Complainant's third problem with regard to requesting leave, obtaining the approval, and taking the leave. The AJ found that it was undisputed that Complainant had not received express permission to take the leave prior to the period of December 26, 2006 through January 3, 2007. As a result, she was charged AWOL. As far as the Letter of Warning, the AJ noted that Complainant had several instances in which she had not followed the rules for the submission and approval of leave. After the discussion with S2, Complainant received another Letter of Warning instead of increased or progressive discipline.
In regard claim (5), the AJ found that the management required Complainant to deliver her route after the mediation with enough time for Complainant to complete her route before the end of her work day. Further, had Complainant not delivered the mail, S1 would have had to pay substitute carriers to complete the route. In addition, there was no evidence that Complainant requested to forego delivering the route. As to the reconfiguration of her case, S1 affirmed that she noticed that Complainant's configuration made her inefficient. S1 informed Complainant previously that her case needed to be reconfigured and did so herself to conform for efficiency purposes. Finally, as to claim (6), S1 denied Complainant's request to curtail mail and delivered the Express Mail herself on November 15, 2007, thereby giving Complainant additional time to put up the third class mail. S1 stated that she did this to be helpful to Complainant.
The AJ concluded that Complainant had presented no evidence that the Agency's reasons were pretextual. As a result, the AJ found that Complainant had not been discriminated or retaliated against as to all claims except claim (2). As to claim (2), the AJ found that Complainant had not been discriminated against based on race. S2 testified that she was speaking to Complainant as a friend, believed that Complainant had caused her own problems at work, and was not threatening Complainant. Thus, the AJ found no evidence of racial animus. However, the AJ determined that S2's comments were a violation of the anti-retaliation provisions of Title VII. As a result, the AJ found that Complainant had been subjected to reprisal when S2 asked her to drop her EEO complaint.
Turning to remedies, the AJ determined that Complainant had not shown that she had incurred any out-of-pocket expenses as a result of the Agency's retaliation. Complainant claimed in her pre-hearing statement that she had suffered expenses in the amount of $120.00 for postage, fax costs, mileage and parking expense; however, she failed to provide any supporting documentation. As such, the AJ did not award Complainant pecuniary damages. Regarding non-pecuniary damages, Complainant did not present any evidence to support a claim for damages arising solely out of the conversation with S2 on January 12, 2007. As a result, the AJ found that Complainant was not entitled to non-pecuniary damages. Finally, the AJ ordered the Agency to post a notice and to secure EEO training for S2.
On July 9, 2010, the AJ issued a decision on Complainant's entitlement to attorneys' fees and costs. Complainant sought $36,759.50 in attorneys' fees for 198.10 hours of work and $1,339.50 in costs. The AJ determined that Complainant prevailed on only one of the five alleged discrete acts and the claim itself constituted a small portion of her entire case. As a result, the AJ found that a 75% across-the-board reduction in the requested fees was appropriate. Accordingly, the AJ awarded Complainant $9,189.97 in attorneys' fees. Additionally, the AJ determined that Complainant failed to provide documentation for some requested copying, shipping, and postage charges and reduced her award $69.60 for these undocumented expenses. Thus, the AJ awarded Complainant $1,266.34 in costs and expenses. The Agency subsequently issued a final order fully implementing the AJ's decision.
CONTENTIONS ON APPEAL
On appeal, Complainant contends that substantial evidence shows that management discriminated and retaliated against her. Specifically, Complainant alleges that S1 gave false testimony regarding the incident which led to her suspension and her prior behavior during stand-ups. Further, Complainant argues that S1's leave policy conflicted with the collective bargaining agreement. Additionally, Complainant contends that S1 and S2 refused to call her while she accrued AWOL during the holidays to purposefully retaliate against her.
As to the relief ordered, Complainant argues that she is entitled to $30,000.00 in compensatory damages for all of the discrimination she suffered. In the alternative, Complainant contends that she is entitled to $10,000 in compensatory damages for S2's request that she drop her EEO complaint. Further, Complainant states that she has shown that she is entitled to $36,759.50 in attorneys' fees. In addition, Complainant requests that the Commission reverse the AJ's deduction of $69.60 in costs. Finally, Complainant argues that the AJ abused her discretion and delayed her decision on liability and damages for almost two years significantly prejudicing Complainant.
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 9-16 (Nov. 9, 1999).
ANALYSIS AND FINDINGS
As an initial matter, the Commission is not persuaded by Complainant's claim that the delay between the hearing on April 10 and 30, 2008, and the decision on March 26, 2010, casts doubt on the AJ's factual and legal findings. In her decision, the AJ cited to both the investigative record and the hearing transcript in support of her factual findings and made credibility determinations based on witness testimony. There is no objective evidence in the record to support a finding that her credibility determinations are unworthy of credit or deference, and the Commission concludes that her factual findings are supported by substantial evidence.
Disparate Treatment/Reprisal - Claims (1) and (3) - (6)
To prevail in a disparate treatment claim such as this, Complainant must satisfy the three-part evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). She must generally establish a prima facie case by demonstrating that she was subjected to an adverse employment action under circumstances that would support an inference of discrimination. Furnco Constr. Co. v. Waters, 438 U.S. 567, 576 (1978). The prima facie inquiry may be dispensed with in this case, however, since the Agency has articulated legitimate and nondiscriminatory reasons for its conduct. See U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 713-17 (1983); Holley v. Dep't of Veterans Affairs, EEOC Request No. 05950842 (Nov. 23, 1997). To ultimately prevail, Complainant must prove, by a preponderance of the evidence, that the Agency's explanation is a pretext for discrimination. Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133. 143 (2000); St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502. 519 (1993); Tx. Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 256 (1981); Hotley v. Dep't of Veterans Affairs, EEOC Request No. 05950842 (Nov. 13, 1997); Pavelka v. Dep't of the Navy, EEOC Request No. 05950351 (Dec. 14, 1995).
Upon review, the Commission finds that the AJ's finding of no discrimination and reprisal as to claims (1) and (3) - (6) is supported by substantial evidence. The Commission concurs with the AJ's finding that the Agency articulated legitimate, nondiscriminatory reasons for its actions, as set forth above. More specifically, as to claim (1), Complainant was issued the 7-day suspension for improper conduct and for violating the Agency's zero tolerance policy after her confrontation with S1 over S1's denial of her July 2006 leave request. Hr'g Tr., Vol. 1, at 210. Complainant had already received a Letter of Warning and this was Complainant's fourth incident of this nature. ROI, S1's Aff., at 4. Regarding claims (3) and (4), Complainant was charged AWOL from December 26, 2006 through January 3, 2007, because she did not show up for work and had not been approved to take the leave. Hr'g Tr., Vol. 1, at 166-67. As a result of the unscheduled and unapproved absences, Complainant was issued the Letter of Warning. Id. at 182.
As to claim (5), S1 testified that no one had delivered Complainant's route after the mediation so she informed Complainant that she could take her route out. Hr'g Tr., Vol. 1, at 294-95. S1 noted that Complainant did not ask to be excused. Id. at 298. S1 testified that she reconfigured Complainant's case to help her be more efficient after observing her performing some time-wasting practices. Id. at 300-03. Finally, as to claim (6), S1 testified that she denied Complainant's request to curtail mail because S1 decided it would be better if she delivered the Express Mail herself which would allow Complainant to deliver the rest of her third-class mail. Id. at 338-39. S1 added that she had already reported to the Postmaster that everyone's route was going smoothly, and she thought that delivering the Express Mail would help out Complainant. Id.
The Commission finds that the AJ's determination that Complainant failed to establish pretext as to these claims is supported by substantial evidence in the record. The record and facts gleaned at the hearing fail to prove any evidence purporting to show the Agency's actions were pretext for discriminatory or retaliatory animus as to claims (1) and (3) - (6). As a result, the Commission finds that Complainant was not discriminated or retaliated against as to these claims.
Disparate Treatment/ Reprisal - Claim (2)
Regarding claim (2), S2 testified that she suggested during the January 2007 PDI that Complainant drop her EEO complaint against S1 because she believed that Complainant had caused her own problems at work and S1 was more than willing to work to meet her halfway. Hr'g Tr., Vol. 2, at 178. S2 maintained that she was speaking to Complainant as a friend and was not threatening her during the PDI. The Commission concurs with the AJ that Complainant failed to show that the S2's reasons for her actions were a pretext for race discrimination. However, the Commission notes that the actions of a supervisor may constitute reprisal where the supervisor intimidates an employee and interferes with the employee's EEO activity in any manner. See Binseel v. Dep't of the Army, EEOC Request No. 05970584 (Oct. 8, 1998); Yubuki v. Dep't of the Army, EEOC Request No. 05920778 (June 4, 1993).
Upon review, the Commission agrees with the AJ and finds the comment made by S2 to Complainant constituted a violation of Title VII, because such comments are likely to have a chilling effect and deter employees from full exercise of their EEO rights. 29 C.F.R. � 1614.101(b). The Commission notes that an Agency has a continuing duty to promote the full realization of equal employment opportunity in its policies and practices in every aspect of agency personnel matters. 29 C.F.R. � 1614.102. Agencies must, among other things, insure that its managers promote and enforce a vigorous equal employment opportunity program. Pruette v. U.S. Postal Serv., Appeal No. 01951567 (Mar. 3, 1998). Accordingly, the Commission concurs with the AJ's finding that Complainant was subjected to unlawful reprisal discrimination.
REMEDIES
The Commission shall next address the relief ordered for the Agency's reprisal against Complainant. When discrimination is found, the Agency must provide Complainant with 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 Transportation Co., 424 U.S. 747, 764 (1976); Albemarle Paper Co. v. Moody, 422 U.S. 405, 418-19 (1975); Wan v. U.S. Postal Serv., EEOC Appeal No. 01995204 (July 11, 2001). 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 she 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). The Commission notes that on appeal, Complainant does not challenge the AJ's denial of pecuniary damages and only argues that she should be awarded $30,000 in non-pecuniary damages.
Non-Pecuniary 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. 915.302 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). 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. 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 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 support of her claim for non-pecuniary damages, Complainant's husband testified that Complainant became socially withdrawn beginning in April 2006 and her preoccupation with work-related issues became a contributing factor to their separation in August 2006. The Commission notes that the harm alleged occurred prior to S2's January 2007 comments. Further, when asked specifically what affect S2's request to drop her EEO complaint had on her, Complainant simply stated that S2 did not know the nature of S1's comments and attitude towards her. Thus, the AJ determined that Complainant had presented no evidence showing she suffered any harm from S2's encouragement to drop her EEO complaint. The Commission concurs with the AJ that based on Complainant's testimony and the lack of evidence of any harm suffered as a result of the conversation with S2, Complainant has not shown that she is entitled to pecuniary damages.
Attorneys' Fees and Costs
By federal regulation, the Agency is required to award attorneys' fees for the successful processing of an EEO complaint in accordance with existing case law and regulatory standards. 29 C.F.R. � 1614.501(e)(1)(ii). To determine the proper amount of the fee, a lodestar amount is reached by calculating the number of hours reasonably expended by the attorney on the complaint multiplied by a reasonable hourly rate. Blum v. Stenson, 465 U.S. 886 (1984); Hensley v. Eckerhart, 461 U.S. 424 (1983). The circumstances under which the lodestar may be adjusted are extremely limited, and are set forth in EEO Management Directive 110. Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110) (Nov. 9, 1999).
In cases where claims are distinctly different, "work on an unsuccessful claim cannot be deemed to have been expended in pursuit of the ultimate result achieved." Hensley v. Eckerhart, 461 U.S. 424, 435 (citation omitted). 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).
The degree of success is an important factor in calculating an award of attorneys' fees. Farrar v. Hobby, 506 U.S. 103 (1992). In determining the degree of success, the Commission will consider all relief obtained in light of a complainant's goals, and, if a complainant achieved only limited success, she should recover fees that are reasonable in relation to the results obtained. Hensley, 461 U.S. at 434. While a reasonable fee should not be determined simply by mathematical formula, hours spent on unsuccessful claims should be excluded from the amount of a reasonable fee. Id. Where the Complainant achieved only limited success, Complainant should receive only the amount of fees that is reasonable in relation to the results obtained. Hensley v. Eckerhart, 461 U.S. 424 (1983); Cemy v. Dep't of the Navy, EEOC Request No. 05930899 (Oct. 19, 1994).
Upon review the record, the Commission finds that the record supports the AJ's decision with regard to the attorneys' fees award. In light of Complainant's success in prevailing on only one of her claims, the much simpler set of facts, and the narrowness of that issue, the Commission finds that the AJ's reduction of the amount of attorneys' fees awarded is supported by substantial evidence. Moreover, Complainant has not submitted anything on appeal to support her contention that the award of attorneys' fees should be increased. Accordingly, the Commission finds no basis to disturb the AJ's award of attorneys' fees.
With respect to the claim for reimbursement of legal costs, the Commission will not disturb the AJ's finding here. In this regard, the Commission finds that the record is devoid of receipts, bills, or other documentary evidence in support of the additional claimed costs. See Canady v. Dep't of the Army, EEOC Request No. 05890226 (Dec. 27, 1989); Alston v. Dep't of Health and Human Serv., EEOC Appeal No. 01A54981 (Feb. 3, 2006); Coard v. Dep't of Justice, EEOC Appeal No. 01A30222 (Feb. 27, 2004). Therefore, the Commission will not increase the AJ's award of $1,359.50 with respect to costs.
CONCLUSION
After a review of the record in its entirety, including consideration of all statements submitted on appeal, it is the decision of the Equal Employment Opportunity Commission to AFFIRM the final Agency order. The Agency is directed to comply with the Order below.
ORDER
To the extent it has not already, the Agency is ordered to take the following remedial action:
1. Within thirty (120) calendar days of the date this decision becomes final, the Agency shall pay Complainant $9,189.97 in attorneys' fees and $1,359.50 in costs;
2. Within ninety (120) calendar days of the date this decision becomes final, the Agency shall provide training to S2 regarding her responsibilities under EEO laws, with a special emphasis on reprisal for prior protected EEO activity; and
3. The Agency shall consider taking disciplinary action against S1 and S2. The Agency shall report its decision. If the Agency decides to take disciplinary action, it shall identify the action taken. If the Agency decides not to take disciplinary action, it shall set forth the reason(s) for its decision not to impose discipline.
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.
POSTING ORDER (G0610)
The Agency is ordered to post at its Post Office facility in Severn, Maryland 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.
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 (S0610)
You have the right to file a civil action in an appropriate United States District Court within ninety (90) calendar days from the date that you receive this decision. If you file a civil action, you must name as the defendant in the complaint the person who is the official Agency head or department head, identifying that person by his or her full name and official title. Failure to do so may result in the dismissal of your case in court. "Agency" or "department" means the national organization, and not the local office, facility or department in which you work. If you file a request to reconsider and also file a civil action, filing a civil action will terminate the administrative processing of your complaint.
RIGHT TO REQUEST COUNSEL (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
September 28, 2012
Date
1 Complainant withdrew age and disability as bases of discrimination in her pre-hearing statement.
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2
0120110103
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013