07a20128
12-22-2003
James A. Patterson v. Department of the Air Force
07A20128
12/22/03
.
James A. Patterson,
Complainant,
v.
Dr. James G. Roche,
Secretary,
Department of the Air Force,
Agency.
Appeal No. 07A20128
Agency No. COL-98-AF-0265-E
Hearing No. 160-98-8504X
DECISION
Following its September 13, 2002 final order, the agency filed a timely
appeal which the Commission accepts pursuant to 29 C.F.R. � 1614.405.
On appeal, the agency requests that the Commission affirm its rejection of
an EEOC Administrative Judge's (AJ) finding that the agency discriminated
against complainant on the basis of his disability. The agency also
requests that the Commission affirm its rejection of the AJ's order to
award complainant compensatory damages and attorney's fees. For the
following reasons, the Commission REVERSES the agency's final order.
Complainant, a former Motor Vehicle Operator/Material Handler employed
at the agency's Rome, New York facility, filed a formal EEO complaint
with the agency on November 17, 1997, alleging that the agency had
discriminated against him on the basis of disability (Klinefelter's
Syndrome) when:
(1) on January 23, 1997, an EEO Counselor improperly disclosed
complainant's disability to management when investigating another
employee's informal complaint; and
management officials violated his right to privacy by revealing the
contents of his mental evaluation to unauthorized personnel.
At the conclusion of the investigation, complainant was provided a
copy of the investigative report and requested a hearing before an AJ.
After proper notice to the parties, the AJ issued an Order of Judgement
and Decision in favor of complainant as to his first allegation, and
in favor of the agency as to the second allegation. Specifically,
the AJ found no dispute in the record that while conducting an inquiry
into an unrelated EEO complaint, the agency's EEO Counselor improperly
disclosed to management that complainant had Klinefelter's Syndrome.
As to his second allegation, the AJ found complainant failed to establish
that any unauthorized personnel actually saw the psychiatric report.
As relief for the medical disclosure, the AJ awarded complainant
$30,000.00 in non-pecuniary compensatory damages for embarrassment,
humiliation, anxiety, stress, loss of self esteem, loss of appetite,
loss of sleep, loss of enjoyment of life, and negative impact on his
relationship with his family. The AJ also awarded complainant $6,000.00
in attorney fees.
The agency issued a summary decision deciding not to implement the AJ's
decision. On appeal, the agency argues that the AJ erred by awarding
complainant $30,000.00 in non-pecuniary compensatory damages because
there was insufficient evidence to support such a high award.<1>
Specifically, the agency contends that the AJ failed to take other
factors into consideration that may have contributed to complainant's
emotional distress other than the disclosure of his medical information.
Furthermore, the agency determined that the AJ erroneously credited
statements submitted by complainant's husband and son. As for the AJ's
award of attorney's fees, the agency maintains that the AJ failed to
document the award, and failed to account for matters on which complainant
did not prevail.
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. National Labor Relations Board, 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.
After a careful review of the record, we discern no basis to disturb the
AJ's finding of discrimination. The findings of fact as to liability
are supported by substantial evidence, and the AJ correctly applied the
appropriate regulations, policies, and laws. However, we do agree that
the evidence in the record does not support an award of $30,000.00.
We agree with the agency that there is insufficient evidence in the
record establishing that complainant's emotional distress was caused
only by the disclosure of medical information. The record reveals
complainant has endured other stressors at work that either preceded the
discrimination or were not proven to be discriminatory. Having said
that, we do find sufficient evidence to support a reduced award for
embarrassment and humiliation related to the improper disclosure.
We find that $3,000.00 will adequately compensate complainant for
the emotional distress caused by the discrimination. Furthermore,
we find that this award is consistent with prior Commission decisions.
See Brunnel v. United States Postal Service, EEOC Decision No. 07A10009
(July 5, 2001)($2,000 for embarrassment, anger and stress due to violation
of medical confidentiality).
We now turn to the AJ's award of attorney's fees. A finding of
discrimination raises a presumption of an entitlement to an award of
attorney's fees. 29 C.F.R. � 1614.501(e). An award of attorney's
fees is determined by calculating the lodestar, i.e., by multiplying a
reasonable hourly fee by a reasonable number of hours expended. Hensley
v. Eckerhart, 461 U.S. 424 (1983); 29 C.F.R. � 1614.501(e)(2)(ii)(B).
A reasonable hourly rate is the prevailing market rate in the relevant
community for attorneys of similar experience in similar cases.
Blum v. Stenson, 465 U.S. 886 (1984).
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 circumstances under which the lodestar may be adjusted are extremely
limited, and are set forth in EEO Management Directive 110 (November
9, 1999). A fee award may be reduced in the following circumstances:
in cases of limited success; where the quality of representation was
poor; the attorney's conduct resulted in undue delay or obstruction of
the process; or where settlement likely could have been reached much
earlier, but for the attorney's conduct MD110, at p. 11-7. The party
seeking to adjust the lodestar, either up or down, has the burden of
justifying the deviation. Id. at p. 11-8
The fact that the complainant did not prevail on every aspect of his
complaint does not, in itself, justify a reduction in the hours expended
where the claims are intertwined, and where it would be impossible to
segregate the hours involved in each claim. It is true that attorney's
fees may not be recovered for work on unsuccessful claims. Hensley,
461 U.S. at 433. Courts have held that fee applicants should exclude
time expended on "truly fractionable" claims or issues on which they
did not prevail. See National Association of Concerned Veterans (NACV)
v. Secretary of Defense, 675 F.2d 1319, 1337 n.13 (D.C. Cir. 1982).
Claims are fractionable or unrelated when they involve "distinctly
different claims for relief that are based on different facts and legal
theories." Hensley, 461 U.S. at 434. Thus, in cases where claims are
unsuccessful claim cannot be deemed to have been expended in pursuit of
the ultimate result achieved." Id. at 435. However, in cases where
a claim for relief involves "a common core of facts or will be based
on related legal theories" a fee award should not be reduced simply
because the plaintiff failed to prevail on every contention raised in
the lawsuit. Id. "The hours spent on unsuccessful claims should be
excluded in considering the amount of a reasonable fee only where the
unsuccessful claims are distinct in all respects from the successful
claims." EEO MD-110 at 11-6, citing Hensley, supra.
Here, complainant's claims involved a common core of facts; breach of
confidentiality of medical documentation, and therefore, we decline to
adjust the request for attorney's fees. Our calculations of the fee
documentation submitted to the record reveals a total of $5,227.25 in
attorney's fees and we award same.
Therefore, after a careful review of the record, including arguments and
evidence not specifically discussed in this decision, the Commission
reverses the agency's final order and directs the agency to take
corrective action in accordance with this decision and the Order below.
ORDER (C0900)
The agency is ordered to take the following remedial action:
The agency shall pay complainant $3,000.00 in non-pecuniary compensatory
damages.
The agency shall pay complainant $5,227.25 in attorneys fees.
The agency shall provide training to the responsible management
officials, and the relevant EEO Counselor, in the laws prohibiting
employment discrimination, especially as they relate to the release of
confidential medical information.
The agency shall post a notice in accordance with the paragraph below.
Consider taking disciplinary action against the subordinate employee
identified as being responsible for the discriminatory harassment
perpetrated against complainant. 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 (G0900)
The agency is ordered to post at its Air Force Research Laboratory, Rome,
New York facility 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 (K0501)
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 19848,
Washington, D.C. 20036. 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 (M0701)
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), 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 19848,
Washington, D.C. 20036. 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 (S0900)
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 (Z1199)
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 that the Court appoint
an attorney to represent you and that the Court 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 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
12/22/03
Date
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
An Agency of the United States Government
Notice is posted pursuant to an Order by the United States Equal
Employment Opportunity Commission dated ___________ which found that a
violation of Section 501 of the Rehabilitation Act of 1973, as amended,
29 U.S.C. �791 et seq., has occurred at this facility.
Federal law requires that there be no discrimination against any
employee or applicant for employment because of that person's RACE,
COLOR, RELIGION, SEX, NATIONAL ORIGIN, AGE, or PHYSICAL or MENTAL
DISABILITY with respect to hiring, firing, promotion, compensation,
or other terms, conditions, or privileges of employment.
The U.S. Department of the Air Force, Air Force Research Laboratory,
Rome, New York (hereinafter referred to as �facility�) supports and
will comply with such Federal law and will not take action against
individuals because they have exercised their rights under law.
The facility has been found to have violated the Rehabilitation Act when
it made unauthorized disclosures of an employee's disability. The agency
was ordered to pay complainant compensatory damages and attorney's fees.
The agency was also ordered to consider taking disciplinary action
against the responsible employee, conduct training, and post this notice.
The facility will not in any manner restrain, interfere, coerce,
or retaliate against any individual who exercises his or her
right to oppose practices made unlawful by, or who participates in
proceedings pursuant to, Federal equal employment opportunity law.
_________________________
Date Posted: ____________________
Posting Expires: _________________
29 C.F.R. Part 16141The agency did not raise any arguments on appeal as
to liability.