Eric S.,1 Complainant,v.Tom J. Vilsack, Secretary, Department of Agriculture (Forest Service), Agency.

Equal Employment Opportunity Commission

Feb 23, 2017

0120142782 (E.E.O.C. Feb. 23, 2017)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013

Eric S.,1
Complainant,

v.

Tom J. Vilsack,
Secretary,
Department of Agriculture
(Forest Service),
Agency.

Appeal No. 0120142782

Agency No. FS-2012-00077

DECISION

On August 1, 2014, Complainant filed an appeal, pursuant to 29 C.F.R. § 1614.403(a),
regarding the Agency’s noncompliance with its September 30, 2013, final decision concerning
his equal employment opportunity (EEO) complaint alleging employment discrimination in
violation of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq.,
and the Age Discrimination in Employment Act of 1967, as amended, 29 U.S.C. § 621 et seq.
For the following reasons, the Commission directs the Agency to comply with the final
decisions it issued on September 30, 2013, and August 19, 2014, as modified herein.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a Supervisory
Social Services Specialist (Residential Living Manager) at the Agency’s Schenck Job Corps
Center, Pisgah National Forest, in Mount Pisgah, North Carolina.

On February 22, 2012, Complainant filed an EEO complaint wherein he claimed that the
Agency discriminated against him and harassed him on the bases of his race (African-
American), sex (male), age (45), and in reprisal for his prior protected EEO activity under
Title VII and the Age Discrimination in Employment Act when:

1 This case has been randomly assigned a pseudonym which will replace Complainant’s name
when the decision is published to non-parties and the Commission’s website.
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1. On August 3, 2012, he was issued a Notice of Proposed Five Day Suspension, upon
which a decision was rendered, and was suspended from October 22, 2012, to
October 27, 2012.

2. Since May 5, 2011, he was prohibited from accruing compensatory time, while
Caucasian counterparts continued to do so.

3. On various dates, he was subjected to acts of harassment, including but not limited
to:

a. On April 13, 2012, during his mid-year performance evaluation, he was
informed that he was performing unsatisfactorily, as well as ridiculed and
singled out regarding his work attendance and criticized concerning department
operations funding.

b. On October 17, 2011, during a telephone conversation, his supervisor
continuously talked over him, interrupted him, and at one point imperiously
announced, “I am the Center Director.”

c. On October 8, 2011, he learned that management was holding him personally
responsible for the Center’s poor or substandard performance on its official
evaluation report.

d. On August 23, 2011, his Supervisor issued an offensive electronic mail to the
staff, purporting to express the language used by the student residents (e.g.,
“fruitcake,” “faggot,” “nigger,” and “cracker”).

e. On August 1, 2011, a less experienced white male employee was appointed to
oversee his department.

f. On April 14, 2011, May 29, 2011, June 20, 2011, and July 6, 2011, his
Supervisor made negative remarks about his department and the dormitories he
oversaw to him or other individuals.

g. On April 25, 2011, he was not notified prior to the initiation of an investigation
of four of his staff members regarding timesheet falsification.

h. On March 1, 2011, he was not allowed to participate in the hiring process to fill
a vacancy on his staff.

i. On November 5, 2010, he was issued an incomplete annual performance
appraisal.

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j. On September 16, 2010, his Supervisor alleged that he withheld prior
knowledge about a potential grievance.

k. On June 20, 2010, his Supervisor accused him of failing to report or take action
concerning an inappropriate relationship between a student and staff member.

l. On February 24, 2010, February 11, 2011, February 12, 2011, and February 8,
2012, his Supervisor issued memoranda criticizing the implementation and
application of various Center policies and procedures by him and his staff.

m. On February 8, 2010, February 12, 2010, February 18, 2010, February 20,
2010, February 23, 2010, November 3, 2010, March 4, 2011, and March 16,
2011, his work performance and management ability, including his interpersonal
skills, were criticized.

At the conclusion of the investigation, the Agency provided Complainant with a copy of the
report of investigation and notice of his right to request a hearing before an Equal Employment
Opportunity Commission Administrative Judge (AJ). The Agency subsequently issued a final
decision on September 30, 2013, pursuant to 29 C.F.R. § 1614.110(b).

The Agency determined that Complainant proved that it subjected him to reprisal as alleged.
The Agency also determined that it had not discriminated against Complainant on the bases of
race, sex, or age. The Agency ordered relief and corrective action that in part included a
statement that monetary damages may be awarded, and that Complainant was to submit
supporting documentation; a determination would be made as to appropriate disciplinary or
corrective action; applicable training for relevant management officials; the posting of a Notice
at the place the discrimination occurred stating that discrimination occurred; and a statement
that Complainant’s attorney shall submit a verified statement of attorney’s fees and costs, with
a separate decision on attorney’s fees and costs to be issued thereafter.

Complainant submitted his request for damages on January 16, 2014. The request amounted to
$301,480.00 and included back pay and non-pecuniary compensatory damages. Complainant’s
attorney submitted a request for attorney’s fees totaling 35% of the monetary value of any
recovery or $1,980.00 as an alternative. The Agency’s Office of General Counsel submitted
its response to the Agency’s Office of Adjudication on February 18, 2014. The Agency
asserted that Complainant was not entitled to back pay or attorney’s fees and should be
awarded $2,500.00 in non-pecuniary damages.

CONTENTIONS ON APPEAL

On August 1, 2014, Complainant filed the instant appeal concerning the Agency’s failure to
issue a final decision on monetary damages and attorney’s fees. Complainant states that the
final decision dated September 30, 2013, provided that within thirty days of receipt of all
necessary information, the Agency would issue a written determination of damages.
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According to Complainant, as of the due date, March 20, 2014, the Agency had issued no
determination of damages. Complainant notes that on June 24, 2014, he notified the Agency
of its noncompliance.

Complainant requests that sanctions be issued against the Agency. Complainant requests that
he be awarded his full claim for damages totaling $1,480.00 for pecuniary loss, $300,000.00
in non-pecuniary losses, and 35% in attorney’s fees, altogether amounting to $406,998.00.
Further, Complainant requests additional attorney’s fees and costs as a penalty, in an amount
equal to his actual damages based on the Agency needlessly prolonging this matter.
Complainant argues that the Agency flouted its own final decision and damaged the integrity of
the EEO process.

In a response filed on August 14, 2014, the Agency asserts that sanctions against it would not
be appropriate. In support of its position, the Agency argues that the Commission has
consistently declined to sanction agencies for delays in the issuance of final decisions. The
Agency states that a decision from its Office of Adjudication regarding Complainant’s claim
for damages is pending.

On August 19, 2014, the Agency issued a final decision wherein it awarded Complainant
$5,000.00 in non-pecuniary damages, $990.00 in attorney’s fees, and back pay for the period
of his suspension. The Agency stated that its Human Resources department would determine
the appropriate amount of back pay with all corresponding interest and benefits.

On August 26, 2014, Complainant filed a Notice of Objection to the Agency’s Entry of a Final
Decision on Damages. Complainant argues that the Agency no longer had the authority to
issue a final decision on damages as it was issued eighteen days after he filed the instant appeal
with the Commission. In his Notice of Objection, Complainant does not address the amount of
compensatory damages awarded by the Agency. However, Complainant does contest the
amount of attorney’s fees awarded by the Agency. According to Complainant, the Agency
erred in issuing attorney’s fees that were only half the amount of what he sought. Complainant
notes that the Agency’s rationale was that his attorney had spent time on a separate complaint
filed by him concerning his termination. However, Complainant maintains that he only
requested attorney’s fees for services performed on the instant complaint through August 2013.
Complainant states that the removal process did not begin until September 9, 2013, when he
received a Notice of Proposed Removal. Complainant argues that it is impossible for his
attorney to have billed time for a termination that had not yet even been proposed. Moreover,
Complainant states that the Agency gave no indication as to how it arrived at the amount of a
one-half reduction.

ANALYSIS AND FINDINGS

With regard to Complainant’s request for sanctions against the Agency, the Commission has
exercised its inherent authority to enforce its 29 C.F.R. Part 1614 regulations by ordering
sanctions in response to various types of violations. See Complainant v. Department of
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Energy, EEOC Appeal No. 0120113823 (November 17, 2015) (sanction warranted where
agency failed to submit hearing transcripts on appeal); Complainant v. Department of the Air
Force, EEOC Appeal No. 0120110789 (September 24, 2013) (sanction appropriate where
agency failed to provide copy of hearing record, including hearing transcripts).

Our sanctions serve a dual purpose. On the one hand, they aim to deter the underlying conduct
of the non-complying party and prevent similar misconduct in the future. Barbour v. United
States Postal Service, EEOC Appeal No. 07A30133 (June 16, 2005). On the other hand, they
are corrective and provide equitable remedies to the opposing party. Given these dual
purposes, sanctions must be tailored to each situation by applying the least severe sanction
necessary to respond to a party’s failure to show good cause for its actions and to equitably
remedy the opposing party. Royal v. Department of Veterans Affairs, EEOC Request No.
0520080052 (September 25, 2009). Several factors are considered in tailoring a sanction and
determining if a particular sanction is warranted: (1) the extent and nature of the non-
compliance, and the justification presented by the non-complying party; (2) the prejudicial
effect of the non-compliance on the opposing party; (3) the consequences resulting from the
delay in justice; and (4) the effect on the integrity of the EEO process. Gray v. Department of
Defense, EEOC Appeal No. 07A50030 (March 1, 2007).

We note that our regulations require agency action in a timely manner at many points of the
EEO process. Tammy S. v. Department of Defense, EEOC Appeal No. 0120084008 (June 6,
2014). Compliance with these timeframes is not optional, as the Commission stated in Royal
v. Department of Veterans Affairs, “the Commission has the inherent power to protect its
administrative process from abuse by either party and must insure that agencies, as well as
complainants, abide by its regulations.”

Here, Complainant argues that the Agency was supposed to issue its final decision on
compensatory damages and attorney’s fees by March 20, 2014, but that the final decision had
not been issued at the time the instant appeal was filed, and was not issued until August 19,
2014, eighteen days after the filing of the appeal. However, Complainant has not made a
showing that he was prejudiced by the Agency’s delay in issuing the final decision on damages.
We are concerned by the Agency’s failure to act expeditiously in this matter, but the delay in
issuing the final decision on the damages due Complainant was not sufficiently egregious to
warrant sanctions at this time.

While the Commission has the right to review all of the issues in a complaint on appeal, it also
has the discretion not to do so and may focus only on the issues specifically raised on appeal.
EEO Management Directive 110 (August 5, 2015), Chapter 9-9. In the present case,
Complainant does not challenge the award of compensatory damages and accordingly, we will
not address that award further herein.

By federal regulation, an agency is required to award attorney’s fees and costs for the
successful processing of an EEO complaint in accordance with existing case law and regulatory
standards. EEOC Regulation 29 C.F.R. § 1614.501(e)(1)(H). To determine the proper
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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). There is a strong
presumption that the number of hours reasonably expended multiplied by a reasonable hourly
rate, the lodestar, represents a reasonable fee, but this amount may be reduced or increased in
consideration of the degree of success, quality of representation, and long delay caused by the
agency. 29 C.F.R. § 1614.501(e)(2)(ii)(B). The Agency, in its final decision, indicated that
the requested amounts of $200.00 an hour for work by Complainant’s attorney and $125.00 an
hour for work done by a paralegal were reasonable hourly rates.

As noted above, Complainant is seeking attorney’s fees in the amount of $1,980.00 for work
rendered in the period of July-August 2013. The Agency, however, maintains that
Complainant did not adequately delineate his entitlement to attorney’s fees in that amount given
that Complainant’s attorney was also working on another matter for Complainant. Upon
review of the documentation submitted by Complainant’s attorney, we discern no reasonable
basis to conclude that the work at issue was performed on any matter other than the instant
complaint. As Complainant’s attorney points out, the removal process at issue in the other
complaint did not begin until September 9, 2013, when Complainant received a Notice of
Proposed Removal. Therefore, we find that the Agency erred in only awarding half of the
attorney’s fees that had been requested. We find that the Agency shall award $1,980.00 in
attorney’s fees.

CONCLUSION

Based on a thorough review of the record and the contentions on appeal, we DENY
Complainant’s request for sanctions against the Agency. We REVERSE that portion of the
Agency’s final decision that found Complainant was only entitled to $990.00 in attorney’s fees.
The Agency is directed to comply with the ORDER below.

ORDER

To the extent it has not already done so, the Agency, within one hundred and twenty (120)
calendar days of the date this decision is issued, shall take the following remedial actions:

I. Pay Complainant $5,000.00 in non-pecuniary compensatory damages, back pay
with all corresponding interest and benefits for the period of his suspension, and
$1,980.00 in attorney’s fees.

II The Agency shall submit documentation to Complainant and the Commission to
explain what measures it has taken with regard to the items enumerated in its
final decision dated September 30, 2013, as: 5. a referral should be made to its
Office of Departmental Management’s Office of Human Resource Management
for a determination of the appropriate disciplinary or other corrective action; 6.
training for all management officials involved in this complaint regarding their
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obligations under the anti-discrimination statutes or regulations germane to the
awarded claims; and 7. posting of a Notice at the location where the
discrimination occurred that addresses the discrimination.

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.

ATTORNEY’S FEES (H1016)

If Complainant has been represented by an attorney (as defined by 29 C.F.R. § 1614.501(e)
(1)(iii), he/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 amount 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 the date this decision was issued. 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.

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STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M0416)

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 Chap. 9 § VII.B (Aug. 5, 2015). All requests and arguments
must be submitted to the Director, Office of Federal Operations, Equal Employment
Opportunity Commission. The requests may be submitted via regular mail to P.O. Box 77960,
Washington, DC 20013, or by certified mail to 131 M Street, NE, Washington, DC 20507. 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
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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 Complainant’s 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

February 23, 2017
Date