0720100049
07-05-2011
John B. Knott, Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service, (Capital Metro Area), Agency.
John B. Knott,
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service,
(Capital Metro Area),
Agency.
Appeal No. 0720100049
Hearing No. 531-2007-00099X
Agency No. 1K-211-0039-06
DECISION
Following its August 27, 2010, final order, the Agency filed a timely appeal which the Commission accepts pursuant to 29 C.F.R. � 1614.405(a). On appeal, the Agency does not dispute the EEOC Administrative Judge's (AJ) finding of discrimination in violation of Title VII of the Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. � 2000e et seq. It does, however, request that the Commission affirm its rejection of relief ordered by the AJ. Specifically, the Agency disputes the AJ's award of front pay and attorney's fees. In addition to responding to the Agency's appeal, the Complainant has filed his own cross-appeal. He challenges the AJ's back pay award.
ISSUE PRESENTED
Whether the AJ's award of back pay, front pay and attorney's fees was appropriate.
BACKGROUND
Since 1971, Complainant has been an employee with the U.S. Postal Service. During the relevant time, Complainant was a Manager Distribution Operations (MDO) at the Baltimore Processing and Distribution Center, in Maryland. Believing that he was subjected to discriminatory harassment and a hostile work environment, Complainant filed a formal complaint on August 11, 2006. Specifically, Complainant claimed that he was subjected to discrimination based on his race (white), sex (male), age (over 40) and in reprisal for prior protected activity when:
(1) From January 2006 onward, the Agency failed to appropriately address his complaint of discrimination, harassment and a hostile work environment caused by his coworker Employee B.
(2) The Agency failed to appropriately address his complaints of a workplace accident on March 22, 2006, when Employee B struck him with a heavy piece of equipment.
(3) In May 2006, the Agency proposed his removal and subsequently, on August 22, 2006, issued a letter of warning in lieu of a 14-day suspension.
(4) From April to August 2006, the Agency delayed in providing him a copy of the investigative package concerning a March 29, 2006 investigation regarding Employee M which was relied upon in issuing discipline.
(5) On August 19, 2006, he was reassigned from the Baltimore P&DC to the incoming mail facility.
(6) The Agency requested duplicative medical information to justify his medical request for continued sick leave.
(7) The Agency placed obstacles in his way to obtain sick leave, resulting in his being classified as Absent Without Leave (AWOL) from September 24, 2006 through October 13, 2006.
After the investigation, the Agency provided Complainant with a copy of the report of investigation and notice of the right to request a hearing before an EEOC Administrative Judge (AJ). Complainant timely requested a hearing. The AJ held a hearing over several days before issuing a bench decision on February 17, 2009, finding discrimination.
Specifically, the AJ found that Complainant established by a preponderance of the evidence that the Agency subjected him to unlawful harassment based on his race and in reprisal for his prior EEO activities on all seven claims.1 In his decision the AJ explicitly noted: "In all my years of being an administrative judge, which is quickly approaching 25 years, I have never seen such a cover-up, a conspiracy, and lack of credibility by agency officials as . . . in this matter." The AJ summarized the case as follows:
Everybody lied, did not follow agency procedures regarding Complainant's claims of harassment, did not follow Agency procedures about investigating accidents, did not file accurate and timely accident reports, supervisors inquired whether Complainant would be filing or completing his EEO complaint and when informed that he would, they issued a notice of removal the very, very same day. They violated Agency policy when lifting the proposed removal to a letter of warning and assigned Complainant to a different location for an alleged cooling-off period. They delayed [providing Complainant with an] investigation regarding the elevator incident. The Agency also requested duplicative medical information . . . and did not assist Complainant in obtaining sick leave. . . .
. . .
As I stated at the hearing, almost every employee involved in the above was black. Not one person was disciplined, even though it was clearly obvious that major violations of agency policies were undertaken. One individual was disciplined. One individual suffered incredible harassment that the agency refused to investigate. Only one individual suffered an accident that went unreported. Only one individual was issued a notice of removal without even a scintilla of evidence that this was appropriate in light of Complainant's prior outstanding record over a period of thirty-five years, which did not include any disciplinary action.
In fact, only one witness, and that is the Complainant, do I find at all credible in this matter.
Thereafter, on May 28 and May 29, 2009, a hearing on damages was held. On July 16, 2010, the AJ issued his decision on relief.
Noting that Complainant had worked for the agency since he was seventeen years old and at the Baltimore P&DC location for approximately thirty years, the AJ found Complainant's reaction to the Agency's actions to be reasonable. Therefore, even though Complainant was issued a proposed removal, he believed that he was going to be fired. The letter of decision, changing the proposed removal to a lesser discipline, was not issued until August 22, 2006. Therefore, from May 11, 2006 until August 22, 2006, Complainant thought he was going to be terminated.
The AJ found that Complainant was then further harmed when he was reassigned to a facility where an employee Complainant had difficulties with worked. Additionally, the reassignment was to an EAS-20 position, while Complainant was an EAS-24.
Complainant was also under stress by being classified as AWOL during a period of sick leave, and received no relief when the AWOL was later rescinded. The AJ determined that after the reversal of the AWOL charge "the Agency continued to place barriers regarding Complainant's attempts to take leave." In particular, the AJ noted that Complainant's submission of medical documents was returned unopened.
Complainant suffered a panic attack in January 2007, and again in the summer of 2007 with the proposed removal still on his mind. The AJ observed that Complainant's sleep patterns were disrupted, his marital and family relationships suffered, he lacked focus, and experienced feelings of devastation. Following the events at work, Complainant sought the treatment of a psychiatrist for the first time. He had seriously considered suicide more than a dozen times.
Consequently, the AJ awarded Complainant $125,000.00 in non-pecuniary compensatory damages; $30,715.72 in past pecuniary compensatory damages; and $3,000.00 in future pecuniary compensatory damages.
With respect to Complainant's request for back pay, the AJ found "uncontroverted medical evidence that by August 2007 Complainant was capable of going to work." For example, at that point Complainant was no longer taking medication. Therefore, the AJ agreed with the Agency that Complainant failed to mitigate his damages after August 2007 and limited back pay to that time.
Regarding front pay, awarded where a complainant is able to work but cannot because of external circumstances, the AJ found that reinstatement was not possible in the instant case. The Agency environment was too hostile and, even the Agency doctor agreed, would exacerbate Complainant's symptoms. Further, the AJ noted that the Agency managers demonstrated resistance to EEO laws. Therefore, Complainant was awarded front pay from the date of the decision until Complainant finds comparable work or reaches full retirement age2.
On August 27, 2010, the Agency issued a final order implementing the AJ's finding of discrimination but rejecting some portions of the damages and the award of attorneys' fees. Shortly thereafter, the Agency filed the instant appeal.
CONTENTIONS ON APPEAL
Agency's Statement on Appeal
On appeal, the Agency disputes the AJ's award of front pay and attorney's fees. The Agency requests that the Commission modify the AJ's decision.
Regarding front pay, the Agency first argues that reinstatement was possible and therefore the remedy of front pay was inappropriate. The Agency argues that as one of the largest federal agencies, the Postal Service has several facilities within Complainant's commuting area to which he could have sought reassignment. The Agency contends that Complainant failed to show that there were no assignments or that he even tried to obtain a reassignment before he left the Baltimore facility. According to the Agency, reinstatement, the preferred remedy over front pay, should have been used in this case.
Assuming that Complainant cannot return to work, the Agency asserts that Complainant's request should have been analyzed as one for future wage loss rather than front pay. As a request for future pecuniary damages the OPM definition of retirement age would apply. In the instant case, contends the agency, the retirement age would have been reached at age 55, thereby ending any front pay in February 2009.
Regarding the attorney's fees award, the Agency argues that it was excessive. Specifically, the Agency believes that the AJ erred in allowing for 87.6 hours, ($16,296.50) for pre-complaint work. It contends that payment for pre-complaint services is only permitted where an AJ finds discrimination, the Agency does not implement the decision, and the matter is upheld on appeal. Here, the Agency asserts that it is indeed implementing the AJ's decision and that it is merely seeking "clarification" on the front pay award and a "review" of attorney's fees.
Additionally, the Agency challenges the amount of hours claimed, finding that they are unreasonable. In particular, the Agency notes that while a significant portion of hours were purportedly used to speak with the client or co-workers, conduct research, or review documents, the Complainant's attorney has provided insufficient detail. Further, the Agency argues that an experienced attorney should not need to expend the amount of hours claimed for research, review of material, and repeated discussions with other members of the firm, particularly in a case where the issues were not complex, difficult or novel. The Agency argues that clerical work, that should have been considered part of firm overhead, was also inappropriately included in the AJ's calculations. The Agency requests that the Commission apply an 85% overall reduction in the hours claimed, noting that it is unnecessary to ascertain a precise number of hours that should not be compensated.
Finally, without elaboration, the Agency asserts that Complainant failed to establish that the rate used was reasonable. According to the Agency, there is insufficient evidence in the record to justify the high rates used for paralegals, law clerks, junior attorneys. The record does not support applying the highest available rate of the Laffey Matrix.
Complainant's Response to Appeal
In response, Complainant states that the awards challenged by the Agency on appeal were supported by evidence presented at the hearing. He also seeks attorney's fees for opposing the appeal.
The Complainant disputes each of the assertions made by the Agency regarding front pay. While the Agency believes that the relief was erroneously awarded, Complainant reiterates that reinstatement was not possible for several reasons. A "deep rooted antagonism" exists, which the AJ concluded could not be cured because so many of the aggressors remained employed by the Agency, many of which managed or controlled multiple duty stations in the area. Additionally, Complainant argues that the Agency demonstrated disregard and a long-standing resistance to EEO laws. Complainant asserts that front pay is therefore an appropriate remedy.
As for the Agency's assertion that front pay should be limited to the retirement age defined by OPM, the Complainant argues that the evidence presented at the hearing supports the AJ's finding that it should continue until Complainant reaches 41 years and 11 months of service. Complainant argues that the Agency failed to provide any evidence that, absent the discrimination, Complainant intended to retire at age 55.
Complainant reiterates that the hours and fees awarded by the AJ were reasonable. He reminds the Commission that the hours requested reflect more than three years in litigation. As for the Agency's claims that the request for fees lacked the necessary detail, Complainant notes that the Fee Petition was 291 pages long. According to the Complainant, the Agency's assertions are vague and its calculations flawed.
In particular, addressing the Agency's attacks on fees for pre-complaint work, the Complainant contends that the fees awarded by the AJ did not include pre-complaint hours. Instead, the AJ permitted only 2 hours ($930) for services performed prior to the filing of the formal complaint. Moreover, the Complainant argues that "the Agency attempts to fool the Commission by asking it to twice discount" fees that were not even awarded by the AJ. The Agency characterizes work performed for "Responding to Discipline" and "Pre-EEO Complaint" as distinct, even though they represent the same services, and requests that the Commission deny $32,593 ($16,296.50 x 2). The Complainant maintains that the AJ already reduced the request for pre-complaint services to only 2 hours.
As for the reasonableness of its rate, the Complainant finds that the Agency's assertions are unsupported. Contrastingly, Complainant states that its hourly rates are based on the "Laffey Matrix."
Additionally, the Complainant states that the agency's appeal should be dismissed because it has failed to render payment for the uncontested amount of attorney's fees. While $199,450.80 is uncontested, according to Complainant, the Agency has only provided one payment of $49,500.00 in September 2010.
Complainant requests an award of fees incurred in opposing the appeal. Moreover, while the Agency was not initially ordered by the AJ to pay fees for pre-complaint processing, the Complainant argues it is now entitled to such fees in light of the Agency's decision not to implement the AJ's decision.
Complainant's Cross-Appeal
Complainant appeals the AJ's award of back pay. The AJ limited back pay and leave restoration to the time period of May 11, 2006 until August 2007, reasoning that by August 2007 Complainant was able to return to work. The AJ found that by failing to do so, Complainant did not mitigate his damages. Complainant seeks back pay for the entire period, from May 11, 2006 until the date the AJ's decision was issued on July 16, 2010.
First, Complainant contends that the AJ did not give sufficient weight to the evidence showing that he was not adequately recovered to maintain employment. Complainant states that through this period, states Complainant he continued to suffer emotional distress which prevented him from working: he experienced uncontrollable crying, disrupted sleep, depression, and a forty- pound weight loss. Doctors testified that he continued to be unstable.
Even if he could work at some point, Complainant argues that the AJ intended to cease back pay in August 2008, rather than 2007. In his decision, the AJ wrote that even after three years of therapy Complainant still experienced psychological problems as was not able to work until "August 2008." Further, to the extent that the AJ relied upon the break in medication, as supporting the belief that Complainant could return to work, this occurred in 2008. The Agency's own expert testified that Complainant could not have worked in a job similar to the one he held, until at least 2008. There is substantial evidence in the record supporting the conclusion that Complainant was unable to work until 2008. Complainant contends that the AJ's use of the year 2007 was "erroneous and unintentional."
Finally, Complainant asserts that the AJ misapplied the law regarding the mitigation of damages. Specifically, he argues that the AJ required him to show he properly mitigated. Instead, the burden should have been placed on the Agency to show that Complainant's efforts lacked due diligence and that other positions were available.
ANALYSIS AND FINDINGS
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.
An AJ's credibility determination based on the demeanor of a witness or on the tone of voice of a witness will be accepted unless documents or other objective evidence so contradicts the testimony or the testimony so lacks in credibility that a reasonable fact finder would not credit it. See EEOC Management Directive 110, Chapter 9, at � VI.B. (November 9, 1999).
Back Pay
Based on the finding of discrimination, Complainant is entitled to full relief in the form of back pay and benefits as authorized by Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. �2000e et seq. Awards of back pay in Title VII cases are governed by 5 C.F.R. 550.801 et seq. See 29 C.F.R. 1614.501(b)-(c). The purpose of a back pay award is to restore to Complainant the income he would have otherwise earned but for the discrimination. See Albemarle Paper Co. v. Moody, 442 U.S. 405, 418-19 (1975); Davis v. United States Postal Service, EEOC Petition No. 04900010 (November 29, 1990).
Usually, a back pay award runs until a complainant is reinstated into the position he or she lost due to the discrimination. In this case, however, the AJ determined that Complainant could not be reinstated to his former position because of the hostility of the environment, as well as Agency managers' demonstrated resistance to EEO laws. Therefore, he ended the back pay period as of the date of his remedial decision and order, and then began a period of front pay, as will be discussed below. The AJ, however, limited the actual money awarded during the back pay period due to mitigation concerns.
The applicable regulations provide that amounts earnable with reasonable diligence by the person discriminated against shall operate to reduce the back pay otherwise allowable. Thus, Complainant has a duty under Title VII to mitigate or lessen damages by making a "reasonable good faith effort to find other employment." This means that Complainant was required to seek a substantially equivalent position, meaning a position that afforded virtually identical compensation, job responsibilities, working conditions, status and promotional opportunities as the position he was discriminatorily denied. See Weaver v. Casa Gallardo, Inc., 922 F 2d 1515 (11th Cir. 1991); Todd v. United States Postal Service, EEOC Petition No. 04920007 (August 27, 1992).
In finding Complainant did not mitigate his damages once he was able to work, the AJ observed that Complainant took a volunteer position in 2008, but did not pursue other paid work until May 2009. While finding that re-employment at the Agency did not present Complainant with a viable mitigation opportunity, the AJ found that once he had recovered sufficiently to work, Complainant failed to use reasonable diligence in seeking a comparable position with another employer. The AJ cited to the fact that Complainant himself testified that he did not want to be employed until the AJ's decision was issued. The decision also noted that during the hearing, Complainant offered few details when asked about how and when he conducted a job search. Therefore, the AJ limited the award of back pay for failure to mitigate.
With respect to Complainant's contention that the AJ intended to cease back pay in August 2008, instead of 2007, the Commission agrees. The AJ's reasoning seemed to focus on when Complainant was capable of working, noting that by August 2007 he stopped taking medication. However, the AJ's own decision on damages also notes that in the summer of 2007, Complainant was "still fixated on the proposed removal and related actions which cause him to have a second panic attack" and he was "frustrated by his inability to overcome pain and depression." The record also reflects that he was still on medication in 2008. Therefore, the Commission finds that the record establishes that Complainant was unable to work, due to the discrimination, until August 2008.
Front Pay
Front pay is an equitable remedy that compensates an individual when reinstatement is not possible in certain limited circumstances. The Commission has held that front pay may be awarded in lieu of reinstatement when: (1) no position is available; (2) a subsequent working relationship between the parties would be antagonistic; or (3) the employer has a record of long-term resistance to anti-discrimination efforts. Brinkley v. United States Postal Service, EEOC Request No. 05980429 (August 12, 1999). The fact that front pay is awarded in lieu of reinstatement implies that the complainant is able to work but cannot do so because of circumstances external to the complainant. See Cook v. United States Postal Service, EEOC Appeal No. 01950027 (July 17, 1998).
In this case, the AJ found that reinstatement was not possible due to the hostility of the environment as well as Agency managers' demonstrated resistance to EEO laws. While the Agency has made very general assertions that Complainant could be reinstated at another facility, the Agency has not provided any concrete proof that there was a specific position available where Complainant could be placed that would have addressed the AJ's concerns about management hostility and resistance to EEO. Complainant, a long-time resident and member of the community, should not be required to move or endure a long commute in order to be made whole.
We have also already found that the record establishes that Complainant was able to seek employment with another employer as of August 2008. The Commission has held that front pay is an equitable remedy to be awarded for a reasonable future period required for the victim of discrimination to reestablish his rightful place in the job market. Deidra Brown-Fleming v. Department of Justice, EEOC Petition No. 0420080016 (October 28, 2010).
Accordingly, we affirm the AJ's award of front pay from the issuance of his decision to the time Complainant either finds comparable work or reaches full retirement age. The parties are disputing what retirement age should be used as the cut-off date for the front pay award. The Agency argues that Complainant, who falls under the Civil Service Retirement System, would have reached full retirement age in February 2009 because that was when he reached the age of 55 and had worked for the Agency for more than 30 years. Complainant takes the position that he would not have retired until he had 41 years, 11 months of service, which apparently would have provided him with the maximum retirement benefits.
We note that is making the front pay award, the AJ, in his decision, stated:
I hereby grant [Complainant] front pay with this caveat. [Complainant] is required to seek comparable work and the Agency is to pay hi front pay from the date of this decision until he finds comparable work or reaches full retirement age.
AJ's Decision, p. 72. Based on a fair reading of this language, we find that the primary purpose of the AJ's front pay award was to allow Complainant time to reestablish his rightful place in the job market. However, the AJ also recognized the reality that Complainant, who had been employed for more than 30 years with the Agency, was near retirement age. In light of the fact that the primary purpose of the front pay award appears to be designed to allow Complainant time to look for a job, we cannot agree with Complainant's argument that he was entitled to front pay until he reaches his maximum retirement benefits, rather than his full retirement benefits. On the other hand, we also do not agree with the Agency that when the AJ issued his remedies' decision in July 2010, he intended the front pay period to end a year earlier, in July 2009, or he would have explicitly said so. Accordingly, in order to resolve this dispute, we determine that Complainant is entitled to two years of front pay, starting with the date the AJ issued his remedies' decision. In setting this time period, we find that it is a reasonable period for Complainant to accomplish the AJ's goal of Complainant obtaining other employment. See Brown-Fleming v. Department of Justice, EEOC Petition No. 0420080016 (October 28, 2010). In determining Complainant's front pay, the calculations should include Complainant's wages, Agency contributions to health benefits and life insurance premiums, and Agency contributions to the Civil Service Retirement System, and the Thrift Savings Plan. Finlay v. United States Postal Service, EEOC Appeal No. 01942985 (April 29, 1997).
Attorney's Fees
Title VII authorizes the award of reasonable attorney's fees, including for an attorney's processing of a compensatory damages claim. 29 C.F.R. � 1614.501(e). To establish entitlement to attorney's fees, complainant must first show that he or she is a prevailing party. See Buckhannon Bd. and Care Home Inc. v. West Virginia Dept. of Health and Human Resources, 532 U.S. 598 (2001). A prevailing party for this purpose is one who succeeds on any significant issue, and achieves some of the benefit sought in bringing the action. See Davis v. Department of Transportation, EEOC Request No. 05970101 (February 4, 1999) (citing Hensley v. Eckerhart, 461 U.S. 427, 433 (1983)). 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 filing of a written complaint. Id. An award of attorney's fees is determined by calculating the loadstar, 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 a verified statement required by the Commission's regulations at 29 C.F.R. � 1614.501 (e)(2)(i).
In the instant case, the AJ awarded Complainant $284,590.00 in attorneys' fees and $15,476.84 in legal costs. He found that the hourly rate was reasonable and consistent with the Washington D.C. area (as determined by the "Laffey Matrix" used by the courts). Further, the AJ determined that the hours expended were also reasonable. The AJ denied the Complainant's request that the hourly rate for attorney GG be enhanced by 25% due to his unique experience in employment discrimination, since his hourly rate was at the highest Laffey Matrix rate.
The Agency does not dispute that Complainant is the prevailing party and therefore entitled to attorney's fees. As noted above, the Agency vaguely asserts that Complainant failed to establish that the rate used, particularly for paralegals, law clerks and junior attorneys, was reasonable. The Commission finds that the Agency's contention, however, is not supported by the record. Therefore, we turn to the contested matter of the amount of hours claimed by Complainant.
As noted above, the Agency contends on appeal that the AJ erred in allowing for 87.6 hours for pre-complaint work. However, a review of the AJ decision shows that the award reflects the Agency's requested reduction. Specifically, the AJ permitted only two hours for pre-complaint work, awarding only $930.00 instead of the $16,296.50 sought by Complainant. Consequently, the Commission shall not apply such a reduction a second time.
With regard to the remaining fee petition, the AJ specifically considered the Agency's request for a reduction based on a claim that there was a billing of excessive hours, including for duplicative services. The AJ, however, noted that Complainant's attorneys worked on this factually complex case for three years, including a five-day of hearing on liability and an additional two days on damages. In the end, the AJ found the number of hours billed to be reasonable, noting that the law firm exercised some "billing judgment" that included no charges for certain times spent on the case. We find that the record supports the AJ's determination in this regard, and the Agency has failed to provide a persuasive argument for substituting our judgment on this matter for that of the AJ, who was in a better position to observe the course of the litigation.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, we REVERSE the Agency's final order, AFFIRM the AJ's finding of discrimination, and MODIFY, in part, the AJ's order of relief. This matter is REMANDED to the Agency for further processing in accordance with the ORDER below.
ORDER
Within sixty (60) calendar days of the date this decision becomes final, the Agency shall take the following actions:
(1) Calculate the appropriate amount due to Complainant in front pay for a two-year period starting from the date of the AJ's remedies. Calculations should include not only Complainant's wages, but also Agency contributions to health benefits, life insurance premiums, the Civil Service Retirement System, and Thrift Savings Plan.
(2) Determine the appropriate amount of back pay and other benefits due Complainant between May 11, 2006 and August 31, 2008.
The Complainant shall cooperate in the Agency's efforts to compute the amounts due, and shall provide all relevant information requested by the Agency. If there is a dispute regarding the exact amount for loss of future earning capacity, back pay and benefits, the Agency shall issue a check to the Complainant for the undisputed amount within sixty (60) calendar days of the date the Agency determines the amount it believes to be due. The Complainant may petition for enforcement or clarification of the amount in dispute. The petition for clarification or enforcement must be filed with the Compliance Officer, at the address referenced in the statement entitled "Implementation of the Commission's Decision."
(3) To the extent it has not already done so, pay Complainant $125,000.00 in non-pecuniary compensatory damages; $30,715.72 in past pecuniary compensatory damages; and $3,000.00 in future pecuniary compensatory damages
(4) Pay Complainant $284,590.00 in attorney's fees, and $15,476.84 in costs.
(5) Rescind from all personnel records the pre-disciplinary interview, proposed removal, decision to suspend, reassignment notice, as well as any references thereto contain in additional documents.
(6) Provide EEO training regarding Title VII to management, and any employees involved in the instant matter, at the Baltimore Processing & Distribution Center to ensure that similar violations do not recur.
(7) Post a notice as set forth in the paragraph entitled "Posting Order" below.
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 (G0610)
The Agency is ordered to post at its Baltimore Processing and Distribution Center 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.
ATTORNEY'S FEES (H0610)
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 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 (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.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0610)
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 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 77960, Washington, DC 20013. 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 (R0610)
This is a decision requiring the Agency to continue its administrative processing of your complaint. However, if you wish to file a civil action, you have the right to file such action in an appropriate United States District Court within ninety (90) calendar days from the date that you receive this decision. 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 filed your appeal with the Commission. 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. Filing a civil action will terminate the administrative processing of your complaint.
RIGHT TO REQUEST COUNSEL (Z0610)
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 from the Court that the Court appoint an attorney to represent you and that the Court also 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 with the Court 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
July 5, 2011
____________________
Date
1 The AJ found no discrimination with respect to the bases age and sex.
2 Complainant sought to retire after reaching 41 years of service.
---------------
------------------------------------------------------------
---------------
------------------------------------------------------------
2
0720100049
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0720100049