0720100038
03-02-2011
Marcial Santiago, Complainant, v. Janet Napolitano, Secretary, Department of Homeland Security, Agency.
Marcial Santiago,
Complainant,
v.
Janet Napolitano,
Secretary,
Department of Homeland Security,
Agency.
Appeal No. 0720100038
Hearing No. 440-2009-00058X
Agency No. HS 07-ICE-001127
DECISION
In conjunction with the issuance of its June 7, 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 requests that the Commission affirm its rejection of an 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. The Agency also requests that the Commission affirm its rejection of the relief ordered by the AJ. On June 8, 2010, Complainant filed an appeal from the Agency's final order, requesting the Commission uphold the AJ's finding of discrimination. Additionally, Complainant requests that the Commission increase the damages and attorney's fees awarded by the AJ. Complainant's appeal is consolidated with the Agency's appeal, for the sake of administrative economy. For the following reasons, the Commission REVERSES the Agency's final order.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Criminal Investigator, GS-1811-13, at the Agency's Commercial Fraud Unit, Office of Immigration and Customs Enforcement (ICE), in Chicago, Illinois.
Complainant filed an EEO complaint dated April 24, 2007, alleging that the Agency discriminated against him on the bases of national origin (Hispanic)1, sex (male), and in reprisal for prior protected EEO activity under Title VII of the Civil Rights Act of 1964 when:
1. Since November 2006, management subjected Complainant to a hostile work environment by assigning him to an inferior work station, ordering him to watch furniture movers on a Saturday, making derogatory and disparaging comments about him and his understanding of the English Language, threatening him with an internal investigation, making threatening comments and engaging in threatening behavior towards him, overly scrutinizing his work, subjecting him to a highly irregular work-injury investigation, and by tasking him with elementary work assignments such as conducting background investigations.
2. Since November 2006, management failed to designate Complainant as an Acting Group Supervisor of the Commercial Fraud Unit during the absence of the assigned Group Supervisor.
3. On January 16, 2007, management denied Complainant's request for emergency sick leave and instead ordered him to submit a request for time off as Absent Without Leave.
4. On January 19, 2007, management denied Complainant's request for compensatory time off for having worked all day on Sunday, January 14, 2007.
5. On January 31, 2007, management denied Complainant's request for a lateral transfer to the ICE Academy as a Program Manager.
6. On April 23, 2007, management failed to select Complainant as the Group Supervisor for the Commercial Fraud Unit.
At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation and notice of his right to request a hearing before an EEOC Administrative Judge (AJ). Complainant timely requested a hearing and the AJ held a hearing on March 1 - 4, 2010. The AJ issued a decision on March 12, 2010, finding that a March 14, 2007 management referral to OPR regarding an alleged false statement made by Complainant, and a subsequent management investigation of this alleged false statement, constituted forms of management intimidation in response to the Complainant's EEO filing and violated Title VII. The AJ found Complainant failed to show he was subjected to discrimination with regard to the remaining claims.
The AJ noted that Complainant did not offer any testimony as to how the internal investigation affected him, but stated that "common sense dictates that being subjected to such an investigation prompted by the highest ranking official in the region would reasonably have caused him severe anxiety over the security of his job at the office and any possibility of a future transfer or promotion." Thus, the AJ awarded Complainant $10,000 in non-pecuniary, compensatory damages. On April 21, 2010, the AJ issued an Order Entering Judgment awarding Complainant $29,122.73 in attorney's fees and costs. The Agency subsequently issued a final order rejecting the AJ's finding that Complainant proved that the Agency subjected him to discrimination as alleged.
On appeal, the Agency argues that Complainant's claim that the Special Agent in Charge (SAC 1) retaliated against him when she made a referral of his misconduct to the senior management official for the ICE Office of Professional Responsibility (Person X) should be dismissed. Specifically, the Agency argues that Complainant's claim regarding the Agency's OPR investigation constitutes a collateral attack on another proceeding and thus, fails to state a claim.
Additionally, the Agency argues that the evidence of record does not support a finding that SAC 1 retaliated against Complainant. The Agency states the first and only time SAC 1 informed Complainant that she was required to report what she believed was a false statement made by him to OPR was during their meeting on January 17, 2007. The Agency notes Complainant first initiated contact with an EEO Counselor regarding his complaint later in the day on January 17, 2007, following his meeting with SAC 1. The Agency states that SAC 1 testified she made a verbal referral to OPR on the night of January 17, 2007, which was before she knew of Complainant's protected activity. The Agency notes that SAC 1 explained that after Person X from OPR advised her on March 13, 2007, that he needed documentation to open up a case, she then sent an electronic mail message to Person X on March 14, 2007. The Agency argues the record shows SAC 1 made the decision to and did report Complainant's alleged false statement to OPR on January 17, 2007, before Complainant filed his EEO complaint.
Furthermore, the Agency states that Complainant failed to provide any evidence of harm or damages suffered due to SAC 1's March 14, 2007 written referral of his misconduct to the OPR for an administrative investigation. The Agency notes that SAC 1 testified that she decided not to subject Complainant to any discipline or further action because even though the investigation substantiated the allegation that Complainant had made a false statement, it also found that Complainant made such a statement due to the advice of his legal counsel.
The Agency states that the AJ improperly found that "common sense dictates that being subjected to such an investigation prompted by the highest ranking official in the region would reasonably have caused [Complainant] severe anxiety over the security of his job at the office and any possibility of a future transfer or promotion." The Agency notes that Complainant describes anxiety and stress in his affidavit; however, the Agency states this anxiety and stress was caused by SAC 1's statement to Complainant during the January 17, 2007 meeting that she was required to report his alleged false statement to OPR. The Agency notes that this statement during the January 17, 2007 meeting was not found to be retaliatory since it occurred prior to Complainant filing an EEO Complaint. Moreover, the Agency notes that Complainant had no knowledge and was completely unaware of SAC 1's March 14, 2007 written referral to OPR. The Agency states Complainant failed to provide evidence that he was entitled to damages as a result of the March 14, 2007 written referral to OPR.
Finally, the Agency claims that the AJ improperly calculated Complainant's entitlement to attorney's fees and costs. Specifically, the Agency argues that since Complainant did not "substantially receive" the relief he sought, he is not a ''prevailing party" entitled to attorney's fees. The Agency also states that Complainant's request for $67,906.82 in attorney's fees and a supplemental request for $5,614.90 in fees is excessive. The Agency notes that Complainant has failed to indicate which portion of the fees claimed pertains to the single issue of reprisal upon which he obtained a finding of discrimination. Moreover, the Agency states that any fee award should be reduced across-the-board due to Complainant's minimal success. Specifically, the Agency argues that the amount of attorney's fees for the reprisal issue should be divided by 14 since there were six primary issues and eight sub-issues in Complainant's complaint. Furthermore, the Agency states that Complainant failed to include an affidavit by or regarding Attorney 2 or his hourly rate. Thus, the Agency argues that all fees billed by Attorney 2 should be excluded from the total fees requested. The Agency states that $30,580 requested for work done by Attorney 2 should be excluded and then an across-the-board reduction should be taken due to Complainant's limited success.
The Agency also objects to the supplemental fee petition submitted by Complainant in the amount of $5,250 and requests Complainant receive 1/14 of the amount requested or $375. Specifically, the Agency states that at the April 15, 2010 settlement conference, the parties attempted to settle, not just the retaliation claim that Complainant prevailed on, but all of the six primary issues and eight sub-issues in his EEO complaint, and Complainant's second pending EEO complaint.
On appeal, Complainant argues that substantial evidence supports the AJ's finding that SAC 1's actions on March 14, 2007, and thereafter amounted to retaliation in violation of Title VII. Complainant states that he suffered harm as a result of the retaliation as noted by the AJ's statement that "common sense dictates that being subjected to such an investigation prompted by the highest ranking official in the region would reasonably cause him severe anxiety over the security of his job at the office and any possibility of a future transfer or promotion." Complainant states this finding was the result of testimony by Complainant and testimony of his psychotherapist who described the physical manifestations or stress from work, panic and stress, waking up in the middle of the night, going to the hospital with chest pains, panic attacks, and finding Complainant under constant scrutiny.
With regard to the Agency's claim that Complainant's complaint constituted a collateral attack on another proceeding, Complainant states that his complaint did not attack the OPR investigation. Rather, Complainant states the retaliation was the reporting by SAC 1 to OPR.
Additionally, Complainant states that the AJ's award of $10,000 in non-pecuniary compensatory damages failed to acknowledge the testimony of his treating psychotherapist who testified that Complainant's stress resulted from his work environment; that Complainant was having a significant amount of stress and anxiety feeling mistreated at work based upon discrimination and favoritism and was under constant scrutiny; and that this resulted in physical manifestations of having to go to the hospital with chest pains and feeling panicked. Complainant states that the AJ failed to recognize his testimony regarding the effects the Agency's retaliation had on his health. For example, he states that beginning in January 2007, he felt threatened by comments made by SAC 1 and her excessive supervision and as a result started having anxiety attacks, profuse sweating, headaches and pain in his right arm. He states in January 2007, he thought he was having a heart attack and went to the hospital for treatment. He states that after he was released, he called Person A, his Acting Group Supervisor, who suggested he was faking and then accused him of being AWOL. Complainant states that after he filed his EEO Complaint, he was not given compensatory time off and the Agency tampered with his leave. Complainant requests his damages award be increased to $60,000.
Complainant also claims the AJ improperly reduced his award of attorney's fees and costs based on the fact that he prevailed in only one of six issues. Complainant argues that since his case involved one where the claims were united by a common core of facts, it cannot be viewed as a series of discrete acts. Complainant requests he be awarded the full amount of attorney's fees and costs requested.
ANALYSIS AND FINDINGS
We note Complainant does not challenge the Agency's finding of no discrimination with regard to the remaining issues in his complaint. Thus, we will not address the propriety of the Agency's finding with regard to those issues.
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).
Failure to State a Claim
At the outset, we address the Agency's contention that Complainant's claim that SAC 1 retaliated against him when she made a referral of his misconduct to OPR should be dismissed for failure to state a claim.
The Commission has held that merely conducting an investigation into purported improper or illegal conduct does not cause any injury without more, for example, resulting disciplinary action. Shelly v. Dep't of the Treasury, EEOC Appeal No. 01996655 (Oct. 27, 2000). It has also applied this rule to the initiation of an internal investigation. Martin v. Dep't of Justice (Federal Bureau of Prisons), EEOC Appeal No. 01A32934 (Sept. 17, 2003). The Commission has held that an employee cannot use the EEO complaint process to lodge a collateral attack on another proceeding. See Wills v. Dep't of Defense, EEOC Request No. 05970596 (July 30, 1998); Kleinman v. U.S. Postal Service, EEOC Request No. 05940585 (September 22, 1994); Lingad v. U.S. Postal Service, EEOC Request No. 05930106 (June 25, 1993).
The Commission has a policy of considering reprisal claims with a broad view of coverage. See Carroll v. Dep't of the Army, EEOC Request No. 05970939 (April 4, 2000). Under Commission policy, claimed retaliatory actions which can be challenged are not restricted to those which affect a term or condition of employment. Rather, a complainant is protected from any discrimination that is reasonably likely to deter protected activity. See EEOC Compliance Manual Section 8, "Retaliation," No. 915.003 (May 20, 1998), at 8-15; Carroll, EEOC Request No. 05970939.
Here, Complainant alleged in his EEO complaint that SAC 1 contacted OPR to initiate an investigation against him in reprisal for his participation in protected EEO activity. The Commission has found in similar cases that such a claim states a claim of reprisal. See De Vore v. Dept. of Justice, EEOC Request No. 0520100546 (January 27, 2011); see also EEOC Compliance Manual Section 8, "Retaliation," No. 915.003 (May 20, 1998), at 8-15, footnote 42 (citing Berry v. Stevinson Chevrolet, 74 F.3d. 980, 986 (10th Cir. 1996) (instigating criminal theft and forgery charges against former employee who filed EEOC charge found retaliatory)). Thus, we decline to dismiss Complainant's complaint for failure to state a claim.
Reprisal
The record shows that SAC 1 had a scheduled meeting with Complainant and Person A set for January 12, 2007. Hearing Transcript, at 674. On January 12, 2007, SAC 1 attempted to meet with Complainant and Person A and discovered Complainant was not in the office. Id., at 674-675. Person A called Complainant and left two voice mail messages regarding the scheduled meeting. Id., at 812. Thereafter, Complainant called his Acting Group Supervisor and left her a message stating that he would not be in the office that afternoon because he was not feeling well. Id. Later that day, Complainant called Person A on her cell phone and updated her regarding his condition. Id., at 288. Person A then told Complainant that she was instructed to mark him AWOL for that afternoon because he had failed to notify her of his absence. Id., at 812-813.
On January 16, 2007, Person A advised Complainant that SAC 1 wanted him to prepare a statement regarding his absence on January 12, 2007. January 16, 2007 electronic mail message. On January 17, 2007, Complainant met with SAC 1, Person A, and another Acting Group Supervisor (Person B), and Complainant submitted his prepared memorandum regarding his January 12, 2007 absence. In his memorandum, Complainant included the introductory statement that, "I, [Complainant], have been ordered to give this statement by my supervisors and have been informed by [Person A], that if I do not give this statement, I will be subject to discipline up to removal for insubordination or failure to comply." January 17, 2007 Interoffice Memorandum. Complainant explained in his memorandum that he left the office at 1:00 p.m. on January 12, 2007, to take his lunch break and that at 1:34 p.m. he phoned Person A and advised her that he was going to seek medical attention because of health concerns. Id. Complainant testified he experienced heart attack symptoms while at work and then went to the hospital. Id., at 285-287. During the January 17, 2007 meeting, SAC 1 asked Complainant whether Person A threatened him with discipline if he did not provide a statement and Complainant refused to directly answer the question. Hearing Transcript, at 636 - 637. Rather, Complainant repeated over and over again that his union attorney advised him to write the sentence. Hearing Transcript, at 885. SAC 1 explained to Complainant that because this is a falsification of an official government document she is mandated to report this to OPR. Id., at 637.
Complainant initiated contact with an EEO Counselor on January 17, 2007, following the meeting with SAC 1, Person A, and Person B. Among the allegations raised by Complainant with the EEO Counselor, he mentioned that SAC 1 threatened him with an internal investigation for the alleged false statement made on January 17, 2007. The EEO Counselor interviewed Complainant on February 21, 2007, regarding his complaint. On March 1, 2007, the EEO Counselor called SAC 1 about Complainant's charges of discrimination. On March 3, 2007, the Counselor called Person A regarding Complainant's case.
On March 14, 2007, SAC 1 submitted a written referral to Person X of OPR regarding what she believed to be Complainant's falsification of an official government document. March 14, 2007 electronic mail message. OPR declined to investigate the matter and referred it back to SAC 1 for her to address internally. Hearing Transcript, at 639. SAC 1 then assigned a Special Agent to investigate the alleged falsification of a government document. The internal investigation revealed that the Complainant inserted the sentence in question based on counsel from a union attorney. June 20, 2007 Memorandum.
The AJ did not find SAC 1's January 17, 2007 statement that she was forced to report Complainant's alleged false statement to OPR to constitute reprisal, since it occurred prior to Complainant's initial EEO Counselor contact. The AJ noted that SAC 1 did not learn about Complainant's EEO activity until March 1, 2007, when she was interviewed by the EEO Counselor.
The AJ found SAC 1's March 14, 2007 written referral to OPR, occurring two weeks after SAC 1 learned of Complainant's EEO activity, to constitute reprisal. The AJ determined SAC 1's explanation for her actions "highly suspect." The AJ noted that although SAC 1 stated she found Complainant's actions of January 17, 2007, to have been an egregious act and amounted to falsifying an official government document which she stated she was required to report to OPR, SAC 1 did not take any disciplinary action against Complainant on January 17, 2007. The AJ noted SAC 1 did not initiate any internal investigation of Complainant in January 2007. The AJ noted SAC 1 waited two months before reporting the matter to OPR. Although SAC 1 testified at the hearing that she had called Person X soon after the January 17, 2007 meeting, and notified him verbally of the falsification, the AJ was not persuaded by this explanation since he noted the electronic mail message SAC 1 wrote to Person X on March 14, 2007, does not indicate whatsoever that she had conferred with him about the alleged falsification prior to sending the electronic mail message. Moreover, we note that Person X did not corroborate having received a verbal referral from SAC 1 in January 2007, and in fact, testified at the hearing that he became aware of the alleged false statement made by Complainant on March 14, 2007. Hearing Transcript, at 608 - 609. Thus, we find that substantial evidence supports the AJ's finding that the March 14, 2007 written referral to OPR constituted retaliation against Complainant for his protected EEO activity.
Compensatory Damages
Section 102(a) of the 1991 Civil Rights Act authorizes an award of compensatory damages for post-Act pecuniary losses, and for non-pecuniary losses, such as, but not limited to, emotional pain, suffering, inconvenience, mental anguish, loss of enjoyment of life, injury to character and reputation, and loss of health. See West v. Gibson, 527 U.S. 212 (1999). In this regard, the Commission has authority to award such damages in the administrative process. Compensatory damages do not include back pay, interest on back pay, or any other type of equitable relief authorized by Title VII. To receive an award of compensatory damages, complainant must demonstrate that he or 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. Dep't of the Navy, EEOC Appeal No. 01934157 (July 22, 1994), request for reconsideration denied, EEOC Request No. 05940927 (December 11, 1995); EEOC's Enforcement Guidance: Compensatory and Punitive Damages Available Under Section 102 of the Civil Rights Act of 1991, EEOC Notice No. 915.002 at 11-12, 14 (July 14, 1992) ("Guidance").
At the outset, we note Complainant is not requesting pecuniary damages and we see no evidence in the record of any pecuniary damages. Thus, this decision only addresses Complainant's entitlement to non-pecuniary, compensatory damages and not pecuniary damages.
Non-pecuniary damages are available to compensate an injured party for actual harm, even where the harm is intangible. Carter v. Duncan-Higgins, Ltd., 727 F.2d 1225 (D.C. Cir. 1984). Emotional harm will not be presumed simply because complainant is a victim of discrimination. Guidance at 5. The existence, nature, and severity of emotional harm must be proved. Id. We note 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 848 (7th Cir. 1989)).
In Carle v. Dep't of the Navy, the Commission explained that evidence of non-pecuniary damages could include a statement by complainant explaining how she was affected by the discrimination. EEOC Appeal No. 01922369 (January 5, 1993). Complainant could also submit documentation of medical or psychiatric treatment related to the effects of the discrimination. Id. However, evidence from a health care provider is not a mandatory pre-requisite to establishing entitlement to non-pecuniary damages. Sinnott v. Dep't of Defense, EEOC Appeal No. 01952872 (September 19, 1996).
At the hearing, Complainant testified that he never had any problems physically or emotionally with work until January 2007. Hearing Transcript, at 321. Complainant states his physical and emotional state changed in January 2007, when Person B told him that he deserved to be the group supervisor; however, Person B stated that there was a "preselection in the mix." Id., at 321 - 322. Complainant stated that he became stressed realizing "that they were coming after [him] - [T]hey were trying to discredit [his] career." Id., at 321 - 322.
Complainant also stated that in mid-January 2007, SAC 1 took a personal interest in his assignments and he stated he started to have anxiety attacks, profuse sweating, headaches, and pain in his arm. Hearing Transcript, at 285. He explained that on January 12, 2007, he started profusely sweating, had pain in his right arm, and had headaches and then went to the hospital due to heart attack like symptoms. Id., at 285-288.
The record reveals that Complainant fell at work on January 31, 2007, and was then out of work until June 2007. Complainant testified that after the fall he felt like the longer he was kept out of the office the harder it would be for him to get a GS-14 promotion. Id., at 322. Complainant also noted that he was told by co-workers to expect attacks coming his way. Id. As a result, Complainant stated he could not get any sleep and stated this affected his relationship with his family. Id. at 323. Complainant saw Doctor Z in February and March 2008, due to the increasing hostilities and hostile work environment. Id., at 323 - 324. He stated at this time he was having panic attacks and anxiety attacks. Id., at 324.
Doctor Z, Complainant's therapist also testified at the hearing. Doctor Z saw Complainant for work related issues on February 28, 2008, March 4, 2008, and March 11, 2008. Doctor Z stated that at the appointment on February 28, 2008, he noted Complainant's "stress at work is through the roof because he is going through the Equal Opportunity hearing for receiving mistreatment from his boss." Hearing Transcript, at 210. Doctor Z saw Complainant on March 4, 2008, and noted that Complainant stated the stress from work is having physical manifestations, that Complainant has been feeling panic and stressed and waking up in the middle of the night, and during the night he went to the hospital with chest pains. Id., at 215 - 216. With regard to the March 11, 2008 appointment, Doctor Z stated that Complainant went through a deposition last week and stated it was stressful. Id., at 215. Doctor Z stated that he observed Complainant suffered a significant amount of stress and anxiety related to his work situation, feeling mistreated at work, discrimination, favoritism, and being under constant scrutiny. Id., at 217.
We note that Complainant is only entitled to compensation for the harm caused by the Agency's discrimination, and in the present case the only finding of discrimination involved the March 14, 2007 management referral to OPR of Complainant's alleged false statement and the resulting management inquiry. We note that none of the testimony at the hearing specifically attributed Complainant's pain or suffering to the discriminatory referral to OPR or the subsequent management inquiry. We find that Complainant has not demonstrated his entitlement to nonpecuniary, compensatory damages for more than a restricted amount. The evidence supplied by Complainant is much too general to afford the basis for more than a very limited award.
In the present case, we find Complainant is entitled to an award of $2,000 in nonpecuniary, compensatory damages. See Resnick v. Dep't of Homeland Security, EEOC Appeal No. 07A20040 (October 30, 2003), req. for recons. den., EEOC Request No. 05A40224 (April 7, 2004) (finding discrimination based on reprisal for non-selection and awarding $2,000 in nonpecuniary damages where other factors, in addition to unlawful retaliation, were shown to have also contributed to complainant's condition); Porter v. U.S. Postal Service, EEOC Appeal Nos. 01A43975, 01A42965 (July 6, 2005) (finding discrimination based on reprisal for notice of removal and awarding $2,000 in nonpecuniary damages where little evidence of emotional distress related to discriminatory removal). This amount takes into account the severity and the duration of the harm done to Complainant by the Agency's actions. The Commission further notes that this amount meets the goals of not being motivated by passion or prejudice, not being "monstrously excessive" standing alone, and being consistent with the amounts awarded in similar cases. See Ward-Jenkins v. Dep't of the Interior, EEOC Appeal No. 01961483 (March 4, 1999) (citing Cygnar v. City of Chicago, 865 F. 2d 827, 848 (7th Cir. 1989)).
With regard to evidence showing that Complainant has suffered stress due to the EEO hearing and has experienced stress for participating in depositions in pursuit of his EEO case, the Commission has held that a complainant may not recover non-pecuniary damages for pain or stress associated with prosecution of an EEO complaint. Alexander v. Dep't of Army, EEOC Appeal No. 0720060050 (April 15, 2010) (citing Appleby v. Dep't of the Army, EEOC Appeal No. 01933897 (March 4, 1994)). Therefore, an award of damages must reflect only the harm experienced as a direct and proximate result of the Agency's discriminatory actions and cannot include relief for harm related to the EEO process. Lewis v. Dep't of Defense, EEOC Appeal No. 0120055145 (April 13, 2007), req. for recons. den., EEOC Request No. 0520070566 (November 1, 2007) (citing, Olsen v. Dep't of Defense, EEOC Appeal Nos. 01956675, 01966077(July 29, 1998)).
Attorney's Fees
The Commission, an agency, or an AJ may award complainant reasonable attorney's fees and other costs incurred in the processing of a complaint regarding allegations of discrimination in violation of the Rehabilitation Act. 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 Dep't 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. Dep't 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. 29 C.F.R. � 1614.501(e)(i).
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, at 433; 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).
Attorney's fees may not be recovered for work on unsuccessful claims. Hensley, at 434. Courts have held that fee applicants should exclude time expended on "truly fractionable" claims or issues on which they did not prevail. See Nat'l Ass'n of Concerned Veterans v. Secretary of Defense, 675 F.2d 1319, 1327 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 435. However, in cases where a claim for relief involves "a common core of facts or will be based on related legal theories" a fee award should not be reduced simply because the plaintiff failed to prevail on every contention raised in the lawsuit. Id. "The hours spent on unsuccessful claims should be excluded in considering the amount of a reasonable fee only where the unsuccessful claims are distinct in all respects from the successful claims." See EEO MD-110, Ch. 11, Sect. 6 (A)(7) (citation omitted).
At the outset, we note that Complainant succeeded on obtaining a finding of discrimination based on reprisal for the Agency's referral of him to OPR and a subsequent management investigation. Moreover, Complainant successfully obtained relief in the form of compensatory damages based on this finding of discrimination. Thus, we find Complainant is considered a prevailing party and is entitled to reasonable attorney's fees and costs for the work done by his attorneys on this case.
Initial Fee Petition
According to the March 19, 2010 invoice, accompanying Complainant's request for attorney's fees, Complainant was represented by Attorney 1, head of his own law firm based in Houston, Texas, and Attorney 2, an associate at Attorney 1's firm, from September 17, 2007, through March 18, 2010. The fee petition contained the curriculum vitae of Attorney 1 and Attorney 2 showing they both had extensive experience in representing employees in employment discrimination matters. Attorney 1 submitted an affidavit noting that he and Attorney 2 represented Complainant in the present matter and that the firm spent 246.50 hours during the relevant time representing Complainant. Attorney 1 stated in his affidavit that he charged Complainant a rate of $350 per hour. In his Motion for Attorney's Fees and Costs, Attorney 1 noted that Attorney 2 charged Complainant $220 per hour for work in this case. We note the record contains a September 17, 2007 retainer agreement signed by Complainant in which he agreed to pay $350 per hour for Attorney 1's work, to pay $220 per hour for work done by associates on the case, and to pay $90 per hour for the work of paralegals on the case. The March 19, 2010 invoice also reflected that Attorney 1 charged $350 per hour and that Attorney 2 charged $220 per hour for work on Complainant's case. The record contains affidavits from two attorneys noting that the rates charged by Attorney 1 and Attorney 2 were the customary and reasonable rates charged for their services. Upon review of the record, we find the hourly rates of $350 charged by Attorney 1 and $220 charged by Attorney 2 were reasonable.
Next, we examine the reasonableness of the hours billed by Complainant's attorneys. The record shows that total hours claimed reflect the work and time which was reasonable and necessary in the pursuit of Complainant's case. Although Complainant initially pursued six primary issues in this case and alleged discrimination based on race, sex, and reprisal, we note that the AJ properly found discrimination solely on the basis of reprisal regarding the management referral of Complainant to OPR and the subsequent management inquiry. Based on the billing information supplied by Complainant, we are unable to determine which of the hours recorded were in pursuit of the successful reprisal claim. In the present case, we note the six claims contained in Complainant's complaint are fractionable since they involve distinctly different claims for relief that are based on different facts and legal theories. Thus, we find an across-the-board reduction is appropriate and we shall divide Complainant's fee request by six to reflect those unsuccessful claims that were sufficiently separate from the successful claims.
In the present case, we note that Attorney 1 and Attorney 2 billed for travel time from Houston to Chicago on four occasions: March 6, 2008, March 10, 2008, February 27, 2010, and March 5, 2010. We find the time billed for travel was reasonable and appropriate in this case. However, the Commission has taken the position that the rate for an attorney's travel time should be reduced by 50 percent from the regular rate charged. Watson v. U.S. Postal Service, EEOC Appeal No. 0720050085 (June 21, 2007) (citing Hooper v. Defense Logistics Agency, EEOC Appeal No. 01873384 (May 3, 1988)). The entries dated March 6, 2008, March 10, 2008, and February 27, 2010, list multiple entries in addition to travel. However, we note that Attorney 1 billed 3.0 hours on March 5, 2010, solely for travel from Chicago to Houston. Thus, we will apply 3.0 hours to the other three dates on which Attorney 1 and Attorney 2 billed for travel between Houston and Chicago. Thus, we find 12 hours for travel on March 6, 2008, March 10, 2008, February 27, 2010, and March 5, 2010, should be reduced by 50 percent from the regular rate charged. Accordingly, for the six hours charged to Attorney 1 for travel on February 27, 2010, and March 5, 2010, Complainant is awarded $175 ($350 x .5= $175 (rate reduced by 50%); ($175 per hour x 6 hours)/6 = $175)). Additionally, for the six hours charged to Attorney 2 for travel on March 6, 2008, and March 10, 2008, Complainant is awarded $110 ($220 x .5 = $110 (rate reduced by 50%); ($110 per hour x 6 hours)/6 = $110).
With regard to the remaining 234.5 total hours claimed (246.5 total hours - 12 hours for travel = 234.5 hours), we note that Attorney 1 billed for 96 hours, Attorney 2 billed for 134 hours, and 4.5 hours were billed for paralegal services. As stated above, we find Attorney 1's reasonable hourly rate was $350, Attorney 2's reasonable hourly rate was $220, and the reasonable rate for paralegal services was $90 per hour. Complainant is entitled to attorney's fees for Attorney 1 in the amount of $5,775 ((96 hours x $350/hour)/6 = $5,600) + $175 for travel). Complainant is entitled to fees for Attorney 2 in the amount of $5,023.33 ((134 hours x $220/hour)/6 (totaling $4,913.33) + $110 for travel). Complainant is entitled to fees for paralegal services in the amount of $67.50 ((4.5 hours x $90/hour)/6). Thus, the total amount of attorney's fees Complainant is entitled to pursuant to his initial fee petition is $10,865.83 ($5,775 (Attorney 1) + $5,023.33 (Attorney 2) + $67.5 (paralegal services)).
Complainant requested reimbursement for costs in the amount of $1,069.32. We note the Agency does not object to any specific cost identified in Complainant's itemized list of costs. Upon review, we find the costs detailed by Complainant are reasonable. Thus, we determine Complainant is entitled to costs in the amount of $178.22 ($1,069.32/6).
Supplemental Fee Petition
Complainant submitted a supplemental fee petition dated April 16, 2010, for a settlement conference held by the AJ on April 15, 2010. Complainant included a billing statement for work done by Attorney 1 in connection with the settlement conference listing 15 hours of work at $350 per hour, totaling $5,250 in fees. Upon review, we find that the hours listed by Attorney 1 in the supplemental fee petition were reasonable; however, we find the request should be divided by six based on Complainant's limited success in this case. Moreover, we find, as previously described above, that six of the hours listed on April 15, 2010, should be considered travel time for roundtrip travel between Chicago and Houston and the rate should be reduced by 50 percent for a rate of $175/hour for travel time for Attorney 1. Thus, the allowable travel fees for the supplemental fee petition is $175 ($175/hour x 6 hours = $1,050)/6). Under the facts of the present case, we reject the Agency's contention that Complainant's supplemental fee petition should be reduced since the April 15, 2010 settlement negotiations involved the present complaint and also Complainant's second EEO complaint. Moreover, the Commission notes that settlement negotiations by their nature tend to include all open matters in dispute between parties. Thus, we find Complainant is entitled to $700 for his supplemental fee petition (($350/hour x 9 hours)/6 = $525 + $175 (travel fees) = $700).
Similarly, we note the Agency does not challenge any specific costs associated with Complainant's supplemental fee petition and we find the costs listed in the fee petition reasonable. However, we find Complainant's costs listed in the supplemental fee petition should be divided by six based on his limited success in this case. Thus, Complainant is awarded $77.48 in costs for his supplemental fee petition ($464.90 divided by 6).
In summary, for both the initial fee petition and the supplemental fee petition, Complainant is awarded a total of $11,565.83 ($10,865.83 + $700) in attorney's fees for legal work done on his case. Additionally, Complainant is awarded $255.70 ($178.22 + $77.48) in costs.
CONCLUSION
The Agency's final order is REVERSED and the Agency shall provide the relief specified in the Order herein.
ORDER
To the extent it has not already done so, the Agency shall:
(1) Within 30 days of the date this decision becomes final, pay Complainant $2,000 in non-pecuniary, compensatory damages.
(2) Within 30 days of the date this decision becomes final, pay Complainant attorney's fees in the amount of $11,565.83 and costs in the amount of $255.70.
(3) Within 180 days of the date this decision becomes final, provide EEO training, with an emphasis on retaliation, for all responsible management officials.
(4) Within 60 days of the date this decision becomes final, consider taking appropriate disciplinary action against the responsible management officials. The Commission does not consider training to be disciplinary action. The Agency shall report its decision on discipline to the Compliance Officer. If the Agency decides to take disciplinary action, it shall identify the action taken. If the Agency decides not to take disciplinary action, it shall set forth the reason(s) for its decision not to impose discipline. If any of the responsible management officials have left the Agency's employment, then the Agency shall furnish documentation of their departure date(s).
The Agency is further directed to submit a report of compliance , as provided in the statement entitled "Implementation of the Commission's Decision."
POSTING ORDER (G0900)
The agency is ordered to post at its Chicago, Illinois facility copies of the attached notice. Copies of the notice, after being signed by the agency's duly authorized representative, shall be posted by the agency within thirty (30) calendar days of the date this decision becomes final, and shall remain posted for sixty (60) consecutive days, in conspicuous places, including all places where notices to employees are customarily posted. The agency shall take reasonable steps to ensure that said notices are not altered, defaced, or covered by any other material. The original signed notice is to be submitted to the Compliance Officer at the address cited in the paragraph entitled "Implementation of the Commission's Decision," within ten (10) calendar days of the expiration of the posting period.
ATTORNEY'S FEES (H0900)
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
March 2, 2011
__________________
Date
1 Although the AJ's decision and the Agency's final order refer to Complainant's complaint as alleging discrimination based on race (Hispanic), we note that in his formal complaint, Complainant referred to his complaint as alleging discrimination based on national origin (Hispanic).
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07-2010-0038
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
17
0720100038