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.