Jeanette Norte, Complainant,v.Spencer Abraham, Secretary, Department of Energy, Agency.

Equal Employment Opportunity CommissionDec 12, 2003
01A24738 (E.E.O.C. Dec. 12, 2003)

01A24738

12-12-2003

Jeanette Norte, Complainant, v. Spencer Abraham, Secretary, Department of Energy, Agency.


Jeanette Norte v. Department of Energy

01A24738

December 12, 2003

.

Jeanette Norte,

Complainant,

v.

Spencer Abraham,

Secretary,

Department of Energy,

Agency.

Appeal No. 01A24738

Agency Nos. 95113AL; 95124AL

DECISION

Complainant timely initiated an appeal from a final agency decision

(FAD2) concerning her complaint of unlawful 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. The appeal is accepted pursuant

to 29 C.F.R. � 1614.405. For the following reasons, the Commission

modifies the agency's final decision.

The record reveals that on May 22, 1995, complainant filed a formal

complaint alleging that: (1) she was discriminated against on the basis

of sex (female) when she was reassigned to the Management Services Team,

Environmental Restoration Division. On June 8, 1995, complainant filed

a second complaint alleging that (2) she was subjected to reprisal for

her prior EEO activity (filing the first complaint), when the Human

Resources Division initiated action to change her classification series.

The agency issued a final decision (FAD1) on September 2, 1997, finding

no discrimination as to either issue. Complainant then appealed to

the Commission, and in Norte v. Department of Energy, EEOC Appeal

No. 01980080 (August 31, 2001), we affirmed FAD1 as to issue (1), but

reversed as to issue (2), finding retaliation. We ordered the agency

to issue another final decision addressing compensatory damages, and

attorney's fees and costs. The agency requested reconsideration of

FAD1, which the Commission denied in Norte v. Department of Energy,

EEOC Request No. 05A20031 (April 2, 2001). Complainant subsequently

submitted to the agency a �Statement of Compensatory Damages, Attorney

Fees and Costs,� which the agency received on May 28, 2002.

The agency issued a final decision (FAD2) on the issues of compensatory

damages, attorney's fees and costs, pursuant to the Commission's order.

FAD2 found that complainant was not entitled to compensatory damages,

but was entitled to attorney's fees and costs in the amount of $21,579.20.

FAD2 also addressed complainant's claim in her �Statement of Compensatory

Damages, Attorney Fees and Costs,� that she was entitled to back pay,

front pay, lost retirement benefits. Noting that the Commission made no

reference in its order to back pay, front pay, lost retirement benefits,

FAD2 concluded that complainant was not entitled to such remedies.

It is from FAD2 that complainant now appeals.

On appeal, complainant, through her attorney, contends that she is

entitled to the following: (a) $337,053.00 in back pay, front pay and

lost retirement benefits; (b) $41,842.16 in attorney fees and costs,

plus additional fees in the amount of $1,652.69 (per complainant's

Exhibit AA); $3,033.00 in lost interest on legal fees; $300,000.00 in

non-pecuniary damages; and, the expunction of complainant's personnel

records relating to the demotion-in-series of complainant. In connection

with her request for compensatory damages, complainant contends that the

agency failed to follow the Commission's order to conduct a supplemental

investigation into the question of compensatory damages. In its objection

to complainant's appeal, the agency requests that we affirm FAD2.

Initially, we note that back pay, front pay, lost retirement benefits

and the expunction of personnel records, constitute equitable relief.

As the Commission declined to make these remedial awards in Norte

v. Department of Energy, EEOC Appeal No. 01980080 (August 31, 2001),

and in Norte v. Department of Energy, EEOC Request No. 05A20031 (April

2, 2002), we decline to review these matters further at this stage.

The remainder of this decision will be limited to the matters properly

before the Commission, which are compensatory damages and attorney's

fees and costs accrued prior to April 2, 2002, in connection with the

successful prosecution of the underlying claim.

Compensatory Damages

The Commission finds that the agency failed in its obligation to conduct

a proper supplemental investigation into the question of compensatory

damages. The Commission further finds that the record contains adequate

information upon which to make a finding as to compensatory damages.

See Exhibits, H and I.

In West v. Gibson, 119 S.Ct. 1906 (1999), the Supreme Court held that

Congress afforded the Commission the authority to award compensatory

damages in the administrative process. Section 102(a) of the Civil

Rights Act of 1991 (the CRA 1991), codified as 42 U.S.C. � 1981a,

authorizes an award of compensatory damages as part of the "make whole"

relief for intentional discrimination in violation of Title VII of the

Civil Rights Act of 1964, as amended. Section 1981a(b)(2) indicates

that compensatory damages do not include back pay, interest on back

pay, or any other type of equitable relief authorized by Title VII.

Section 1981a(b)(3) limits the total amount of compensatory damages

that may be awarded to each complaining party for future pecuniary

losses, emotional pain, suffering, inconvenience, mental anguish, loss

of enjoyment of life, and other non-pecuniary losses, according to the

number of persons employed by the respondent employer. The limit for

an employer with more than 500 employees, such as the agency herein,

is $300,000.00. 42 U.S.C. � 1981a(b)(3)(D).

If a complainant alleges that she is entitled to compensatory damages

and the agency or Commission enters a finding of discrimination, the

complainant is given an opportunity to submit evidence establishing

her claim. 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. Rivera v. Department

of the Navy, EEOC Appeal No. 01934157 (July 22, 1994) req. for

recons. den. EEOC Request No. 05940927 (December 11, 1995); Compensatory

and Punitive Damages Available Under Section 102 of the Civil Rights

Act of 1991, EEOC Notice No. 915.002 (July 14, 1992), at 11-12, 14.

Compensatory damages may be awarded for the past pecuniary losses,

future pecuniary losses, and non-pecuniary losses which are directly or

proximately caused by the agency's discriminatory conduct. Compensatory

and Punitive Damages Available Under Section 102 of the Civil Rights Act

of 1991, EEOC Notice No. 915.002 (July 14, 1992), at 8. Pecuniary losses

are out-of-pocket expenses that are incurred as a result of the employer's

unlawful action, including job-hunting expenses, moving expenses,

medical expenses, psychiatric expenses, physical therapy expenses, and

other quantifiable out-of-pocket expenses. Id. Past pecuniary losses

are the pecuniary losses that are incurred prior to the resolution of

a complaint via a finding of discrimination, an offer of full relief,

or a voluntary settlement. Id. at 8-9.<1>

A compensatory damages award should fully compensate a complainant for

the harm caused by the agency's discriminatory action even if the harm

is intangible. Id. at 13. Thus, a compensatory damages award should

reimburse a complainant for proven pecuniary losses, future pecuniary

losses, and non-pecuniary losses. A complainant has a duty to mitigate

his or her pecuniary damages. Id. at 9. If a respondent can prove that

a complainant failed to mitigate pecuniary damages, the award should

be reduced to reflect all losses that could have been avoided by the

exercise of reasonable diligence. Id. at 9-10.

Non-Pecuniary Damages

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. Rivera v. Department of the Navy, EEOC Appeal

No. 01934157 (July 22, 1994) req. for recons. den. EEOC Request

No. 05940927 (December 11, 1995); Compensatory and Punitive Damages

Available Under Section 102 of the Civil Rights Act of 1991, EEOC Notice

No. 915.002 (July 14, 1992), at 11-12, 14. Further, and also previously

noted, compensatory damages may be awarded for the past pecuniary losses,

future pecuniary losses, and non-pecuniary losses which are directly or

proximately caused by the agency's discriminatory conduct. Compensatory

and Punitive Damages Available Under Section 102 of the Civil Rights Act

of 1991, EEOC Notice No. 915.002 (July 14, 1992), at 8. Thus, once the

issue of a nexus between the discriminatory act and the harm sustained

has been established, the agency is responsible for the harm suffered.

We point out that non-pecuniary compensatory damages are designed to

remedy a harm and not to punish the agency for its discriminatory actions.

See Memphis Community School Dist. v. Stachura, 477 U.S. 299, 311-12

(1986) (stating that compensatory damages determination must be based

on the actual harm sustained and not the facts of the underlying case).

The Commission notes that for a proper award of non-pecuniary damages,

the amount of the award should not be "monstrously excessive" standing

alone, should not be the product of passion or prejudice, and should be

consistent with the amount awarded in similar cases. See Ward-Jenkins

v. Department of the Interior, EEOC Appeal No. 01961483 (March 4, 1999)

(citing Cygnar v. City of Chicago, 865 F. 2d 827, 848 (7th Cir. 1989))

In her affidavit, complainant asserts that she �felt humiliated, demeaned

and degraded . . . . Going to work every day became an act of shame.�

Complainant also contends that she had overwhelming feelings of dread,

foreboding, anxiety, sadness, sorrow, grief, loss, helplessness and

hopelessness. Complainant states that even at home, on the weekend,

and on vacation, she thought about the agency's action constantly.

She states that she had �lost control of [her] identity, [her] career

and [her] future.� Additionally, complainant asserts that she would

often become immobilized in her office chair, biting her fingernails.

Complainant contends that her physician prescribed medication for her

which helped the nail-biting, but did not help her emotional distress.

Complainant states that her depression and anxiety eased somewhat when

she received the Commission's decision in September, 2001, finding that

she had been subjected to retaliation. However, she states that her

distress returned when she saw that the agency was not following through

and compensating her properly. Complainant's husband also described

the emotional distress that he saw his wife endure, and asserts that

his wife's emotional distress had a detrimental effect on their family

and on their marriage.

After analyzing the evidence which establishes the harm sustained

by complainant, with note of the serious nature and duration of her

suffering, and upon consideration of damage awards reached in comparable

cases, the Commission finds that complainant is entitled to an award

of non-pecuniary damages in the amount of $15,000.00. See Yue Lee

Wan v. United States Postal Service, EEOC Appeal No. 01974494 (May 24,

2000) (award of $15,000.00 where employee suffered emotional distress,

depression, inability to sleep, and a negative effect on her marriage,

due to discrimination); Batieste v. Department of the Air Force, EEOC

Appeal No. 01974614 (award of $12,000.00 where, due to discriminatory

termination, employee suffered from emotional distress). We find

this case analogous to the afore-referenced cases with respect to the

nature, severity and duration of the harm. We note that this award is

not motivated by passion or prejudice, is not "monstrously excessive"

standing alone, and is consistent with the amounts awarded in similar

cases. See Cygnar, 865 F.2d at 848.

Attorney's Fees

The Commission may award complainant reasonable attorney's fees and other

costs incurred in the processing of a complaint regarding allegations

of discrimination in violation of Title VII. 29 C.F.R. � 1614.501(e).

A finding of discrimination raises a presumption of entitlement to an

award of attorney's fees. Id. Attorney's fees shall be paid for services

performed by an attorney after the filing of a written complaint. Id.

An award of attorney's fees is determined by calculating the lodestar,

i.e., by multiplying a reasonable hourly fee times a reasonable number of

hours expended. Hensley v. Eckerhart, 461 U.S. 424 (1983); 29 C.F.R. �

1614.501(e)(2)(ii)(B). �There is a strong presumption that this amount

represents the reasonable fee.� 29 C.F.R. � 1614.501(e)(2)(ii)(B).

A reasonable hourly fee is the prevailing market rate in the relevant

community. Blum v. Stenson, 465 U.S. 886 (1984). A petition for fees

and costs must take the form of the verified statement required by the

Commission's regulations at 29 C.F.R. � 1614.501(e)(2)(i).

Complainant was represented by two attorneys during the relevant period.

Complainant requests $1,846.94 plus interest for the services of

Attorney 1. Complainant requests $27,936.05 plus interest, for fees

and costs accrued by Attorney 2, in the period ending May 24, 2002.

Included in complainant's claim is reimbursement for the services of an

expert economist (E1). Because, at the present time, we are limited to

consideration of the attorney's fees and costs accrued only in connection

with the successful prosecution of the underlying claim, we decline to

reach the question of whether complainant is entitled to reimbursement for

the services of E1. Additionally, our award of attorney's fees and costs

is limited to that which was accrued before April 2, 2002, the date when

the Commission issued the decision on the request for reconsideration.

However, complainant may petition for reimbursement for attorney's fees

and costs accrued after April 2, 2002 and in connection with the instant

appeal as provided below in our order on �Attorney's Fees.�

Reduction of Fees for Failure to Prevail on Both Claims

FAD2 concluded that because complainant prevailed on only one of

two issues, the amount of fees to be reimbursed should be reduced by

50%.<2> We find that under the circumstances of this case a reduction

is appropriate. The fact that complainant did not prevail on every

aspect of her complaints does not, in itself, justify a reduction in

the hours reasonably expended where the claims are intertwined, and

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 434-35. Thus,

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." Id. at 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, Ch. 11, Sect. 6 (A)(7) (citation omitted).

Here, we find that the unsuccessful claims are fractionable. Complainant

brought her second claim of retaliation based on her belief that she was

subjected to reprisal for bringing the original sex discrimination in

reassignment claim. However, these are two different claims for relief

that are based on different facts and legal theories. We find that the

claim on which complainant did not prevail is �distinct in all respects�

from the claim on which she was successful. We conclude that the fact

that complainant was unsuccessful on one claim will preclude her from

receiving full reimbursement of her fees and costs. Accordingly, we

award $14,470.02 for attorney's fees and costs accrued prior to April 2,

2002, in connection with the successful prosecution of the underlying

retaliation claim.<3>

Accordingly, we MODIFY FAD2, pursuant to the Order below.

ORDER (C0900)

The agency is ordered, to the extent that it has not already done so,

to take the following remedial action:

Restore classification of complainant's position to the Physical Science

1301 series along with duties and responsibilities associated with the

series that may have been extracted as a result of the discriminatory

reclassification.

Pay complainant non-pecuniary compensatory damages in the amount of

$15,000.00;

Pay attorney's fees and costs in the amount of $14,470.02, plus interest.

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 (H0900)

If complainant has been represented by an attorney (as defined by 29

C.F.R. � 1614.501(e)(1)(iii), 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 award 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 this decision becoming

final. 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 (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

December 12, 2003

__________________

Date

1 Complainant makes no specific request for compensatory damages for

past pecuniary losses or future pecuniary losses.

2 FAD2 awarded 100% of all costs requested by complainant.

3 Because in complainant's petition for attorney's fees and costs, no

distinction was made between costs (expenses) accrued before/after April

2, 2002, we have awarded all costs requested for the period ending May

24, 2002.