Janice Hubbard, Complainant,v.Spencer Abraham, Secretary, Department of Energy, Agency.

Equal Employment Opportunity CommissionOct 15, 2003
07A30052 (E.E.O.C. Oct. 15, 2003)

07A30052

10-15-2003

Janice Hubbard, Complainant, v. Spencer Abraham, Secretary, Department of Energy, Agency.


Janice Hubbard v. Department of Energy

07A30052

October 15, 2003

.

Janice Hubbard,

Complainant,

v.

Spencer Abraham,

Secretary,

Department of Energy,

Agency.

Appeal No. 07A30052

Agency No. 93 (81) AL

Hearing No. 310-A2-5097X

DECISION

Following its November 25, 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 agreed with the EEOC Administrative Judge's (AJ)

finding that complainant was subjected to hostile work environment sexual

harassment from her supervisor. However, the agency determined not to

fully implement the AJ's decision with regard to corrective action.

As ordered by the AJ, the agency determined that it would: (1) award

complainant $840.00 for her receiving an �Outstanding� Performance

Appraisal in 1991; (2) pay complainant $30,000.00 in compensatory

damages; (3) provide sexual harassment training to all employees,

and review its policy on sexual harassment; and (4) post a notice of

the finding of discrimination. However, the agency determined that it

would not implement the following corrective action: (1) attorney's fees

and costs in the amount of $7,525.00; (2) retroactive promotion of one

grade; and (3) Outstanding ratings and compensation for the years 1989,

1990 and 1992. For the following reasons, the Commission REVERSES the

agency's final order in part.

The record reflects that complainant, a GS-05 Automated Clerk employed at

the agency's Amarillo, Texas facility, filed a formal EEO complaint with

the agency on April 5, 1993, alleging that the agency had discriminated

against her on the basis of sex (female) when she was subjected to hostile

work environment sexual harassment by her supervisor (S1) on nine (9)

occasions between March 1989 and August 1992.

At the conclusion of the investigation, complainant was provided a copy of

the investigative report and requested a hearing before an AJ. Following

a hearing, the AJ found that complainant established she was subjected

to hostile work environment sexual harassment. The AJ also found that

complainant was precluded from ratings, awards and a promotion due to the

unlawful harassment by S1. Considering the remedies due to complainant

because of the discrimination, the AJ initially awarded $7,525.00 to

complainant's counsel for attorney's fees. The AJ ordered the agency

to give complainant an Outstanding rating and corresponding awards for

the periods 1989 through 1992. Further, the AJ ordered that the Fully

Successful ratings for the periods in question be expunged from all agency

records and an Outstanding rating entered for this period. In addition,

the AJ ordered the agency to give complainant a retroactive promotion

of one grade, as the record established that complainant was precluded

from awards or from promotion by S1's actions during the course of four

(4) years. The AJ then awarded complainant $30,000.00 in pecuniary and

nonpecuniary damages, which she found was a reasonable compensation for

the actual harm, emotional harm and out-of-pocket expenses suffered for

the harassment at issue.

As previously stated, the agency's final order rejected the AJ's decision

in part. On appeal, the agency argues that the AJ erred by ordering

attorney's fees and costs in the amount of $7,525.00. The agency also

alleges that the AJ erred in ordering the agency to provide complainant

with retroactive promotion of one grade and Outstanding ratings and

compensation for the years 1989, 1990 and 1992. Regarding the issue

of attorney's fees, the agency contended that complainant's counsel

did not comply with the requirements for submission of attorney's fees

set forth in 29 C.F.R. � 1614.501(e) or Equal Employment Opportunity

Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), 9-18 (November

9, 1999). The agency contends that complainant's counsel estimated the

number of hours he spent working on the case, and provided no evidence

demonstrating that his hourly fee is the prevailing rate for Title VII

counsel in his area. Regarding the ordering of retroactive promotion,

the agency contended that complainant did not intend to raise the issue of

her nonpromotion as an issue in her complaint, and the AJ made no legal

finding on this issue. Further, the agency alleges that the AJ made

her decision based on the erroneous assumption that another secretary

had been promoted, but the record indicates that the secretary at issue

was not promoted at any time between 1989 and 1992.

Addressing the AJ's award of attorney's fees, we note that complainant's

counsel prior to the hearing submitted a fee petition seeking $9,450.00,

for 54 hours of work at the hourly rate of $175.00.<1> The AJ found that

as complainant's counsel did not take the case to hearing and complainant

proceeded without counsel at the hearing, 54 hours was excessive.

As such, the AJ found that 43 hours was appropriate considering the

length of time he was involved in the case. Further, the AJ found that

the hourly rate sought was commensurate with that of counsel who are

familiar with Title VII proceedings before the Commission. Thus, the AJ

awarded $7,525.00 in attorney's fees and costs to complainant's counsel.

In its statement on appeal, the agency contends that as complainant's

counsel submitted his fee petition without any documentation and estimated

the time he spent on complainant's case over a six year period, awarding

fees would be inappropriate and prejudicial to the agency. We note that

the Commission has articulated the requirements for fee petitions in

EEO MD-110, and has stated that a fee award may be reduced for failure

to provide adequate documentation. Evers v. Dept. of the Air Force,

EEOC Appeal No. 01842010 (July 24, 1986).

EEOC Regulation 29 C.F.R. � 1613.271(d) provides for awarding attorney's

fees and costs to complainants who prevail on a discrimination complaint

and are represented by an attorney. The

purpose of this provision is to encourage private litigants to act as

"private attorneys general" in

enforcement of antidiscrimination laws. Newman v. Piggie Park Enters.,

390 U.S. 400, 401-10 (1968).

In Hensley v. Eckerhart, 461 U.S. 424, 103 S.Ct. 1933 (1983), the Supreme

Court set forth the formula for determining a fair attorney's fee:

multiplying the number of hours reasonably expended on the litigation

by a reasonable hourly rate. The result was defined as the "lodestar"

figure. The purpose of the lodestar figure was to set an objective basis

on which to initially estimate the value of the legal representation

received. Hensley, 103 S. Ct. at 1939.

In Blum v. Stenson, 465 U/S/ 886, 895, 104 S.Ct. 1541, 1547 (1984),

the Supreme Court held that

reasonable hourly rates are to be measured by the "prevailing market

rates in the relevant community." The burden is on the fee applicant to

produce satisfactory evidence that the rate requested is comparable to

those prevailing in the relevant community. Blum, 465 U.S. at 895, n. 11.

In the instant case, the AJ noted that complainant's counsel sought

compensation for 54 hours of work over a six year period, and approved

counsel's request for 43 hours of work at the rate of $175.00 per hour.

The Commission notes that complainant's counsel did not submit with his

fee petition affidavit any evidence documenting that the rate requested

was comparable to the prevailing rate for attorney's experienced in

Title VII litigation in the state of New Mexico. Counsel stated in his

affidavit that he had seven years of employment law practice, and in

that time, he filed between forty and sixty federal employee lawsuits

in federal court. Counsel's affidavit outlined his years of experience

in Title VII litigation and requested the rate of $175.00 per hour.

We note that counsel provided a sworn fee application stating that his

representation of complainant lasted over six (6) years, and that he

did not file a comprehensive fee petition because his computer files

relating to the case were lost due to computer failure. While we concur

with the agency's contention that counsel's fee petition did not provide

documentation that the hourly rate requested was comparable to those

prevailing in his community, we find that considering counsel's years of

experience in Title VII litigation, and his prior record of cases before

the Commission, the requested fee of $175.00 per hour is reasonable.

As a result, we find that complainant's counsel is awarded the hourly

rate he requested.

Addressing the AJ's finding that complainant's counsel was awarded 43

hours for his work on complainant's case over a six year period, after

considering the evidence of record, we find that

counsel's representations are too vague detailing his representation

of complainant to justify granting his suggestion that he be awarded

fees for a minimum of 43 hours. In reviewing counsel's affidavit for

attorney's fees, we note counsel sought compensation for hours expended on

complainant's case based upon his memory of the case rather than specific

documentation, due to lost computer files. Counsel stated that it took

his between 8 and 10 hours to review complainant's case file, between 6

and 8 hours to research relevant case law, between 10 and 12 hours in

correspondence with the agency and another 7 to 10 hours attempting

to negotiate a settlement with the agency between 1997 and 2000.

Counsel further stated that he spent another 9 hours on extraneous

aspects of handling complainant's case.

After a review of the record and counsel's affidavit, we find that he

is entitled to compensation for 35 hours of work. While there is no

requirement that counsel file a detailed fee petition containing lengthy

argument about entitlement to fees, the attorney should submit the

following information: MD-110 states that in submitting a fee petition,

the attorney should include a statement of the number of hours spent in

the preparation and presentation of the case. This must specifically

include the dates and a statement of exactly what was done. It must

also describe the training and experience of each individual who worked

on the case and the number of hours spent by each individual. Counsel's

affidavit involves estimates from counsel's memory regarding the time and

duties he spent on complainant's case over a six year period. Considering

that counsel did not represent complainant at any stage while the case was

before the AJ, and the duties counsel performed for complainant during

the filing of the case and during unsuccessful settlement discussions,

we find that 35 hours is reasonable for counsel's actions on the instant

case. As a result, we award complainant's counsel a fee of $6,125.00,

for 35 hours of work on complainant's case at an hourly rate of $175.00.

Next addressing the agency's contention that the AJ improperly awarded

a promotion to complainant, we note that the AJ awarded the retroactive

promotion to the date that another Secretary was promoted. The AJ noted

that the promotion of one grade is to assist complainant in obtaining

the level she could have obtained but for the discrimination by S1.

The agency alleges that the Secretary at issue was not promoted, and

further that complainant did not intend to raise the issue of nonpromotion

in her complaint. After reviewing the record, we find no evidence

in the record to establish that the Secretary at issue was promoted

during the period that complainant was harassed by S1. In addition,

we find no evidence in the record that absent the discrimination by S1,

complainant would have been promoted past the GS-5 level she worked at.

There is no evidence that complainant was precluded from promotion by

S1's actions during the course of four (4) years, and any finding that

she would have been promoted absent the discrimination is speculative

at best. As such, we concur with the agency that the AJ improperly

awarded a one grade promotion to complainant.

Finally, we address the agency's contention that the AJ improperly ordered

the agency to change complainant's Performance Evaluations for the years

1989, 1990 and 1992 to �Outstanding� from

�Fully Successful.� The agency also alleges that the AJ erred in

ordering it to give retroactive compensation to complainant, if other

agency employees received compensation during the years 1989 through

1992 for receiving �Outstanding�ratings. The agency contends that these

findings were erroneous, as complainant's Performance Appraisals for

the years at issue have been destroyed, and as complainant alleged that

the discrimination by S1 occurred only in 1991. After consideration of

the record, we concur with the AJ's findings regarding the Performance

Appraisals. Initially, we find the fact that the agency maintains its

Performance Appraisals for four (4) years to not preclude the agency

from denoting that complainant should have received an �Outstanding�

rating rather than a �Fully Successful� rating. In addition, we note

that the complainant alleged that the harassment by S1 began as early

as March 1989, and occurred in the years 1990, 1991 and 1992. The AJ

noted in her decision that complainant alleged in her formal complaint

that S1 regularly made sexually explicit remarks about her from sometime

in 1989 until August 1992. AJ's Decision at 2-3. As found by the AJ,

had complainant received �Outstanding� ratings during those years, she

would have received financial compensation, as did several other agency

employees. AJ's Decision at 16. As such, the Commission concurs with

the AJ's order that the agency shall denote that complainant receive an

�Outstanding� for the years 1989 through 1992, and that complainant shall

receive the same compensation which was given to those employees receiving

an �Outstanding� during those years. Therefore, after a careful review

of the record, the Commission REVERSES the agency's final order in part.

ORDER

1. To the extent it is able to do so, the agency is to correct

complainant's personnel records to reflect that she received

�Outstanding� Performance Appraisals during the years 1989 through 1992.

If compensation was given to those agency employees who received

�Outstanding� Performance Appraisals during the years 1989-1992, the

agency shall give the same compensation to complainant which was given

to those employees receiving the �Outstanding� rating.

2. To the extent it has not already done so, the agency shall provide

training for all involved managers and supervisors with respect to their

responsibilities and obligations under Title VII of the Civil Rights Act

of 1964 (Title VII), as amended, 42 U.S.C. � 2000e et seq., specifically

regarding sexual harassment.

3. To the extent it has not already done so, within thirty (30) days of

the date on which this decision becomes final, the agency shall tender

to complainant pecuniary and non-pecuniary compensatory damages in the

amount of $30,000.00.

4. Within thirty (30) days of the date on which this decision becomes

final, the agency shall tender to complainant the sum of $6,125.00

for attorney's fees and costs associated with the litigation of the

instant case.

5. 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 of

the agency's calculation of compensation and any other benefits due

complainant, including evidence that the corrective action has been

implemented.

POSTING ORDER (G0900)

The agency is ordered to post at its facility in Amarillio, Texas, 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

October 15, 2003

__________________

Date

1 The AJ noted that complainant's counsel did not provide the customary

verified itemization of attorney's fees with his fee petition, as his

office's computer lost its main server in 1998. The AJ found that the

Commission would excuse this variance from its requirements.