0720080011
12-18-2008
Mark Cuellar and Jaime Garcia, Complainants, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Mark Cuellar and Jaime Garcia,
Complainants,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal Nos. 0720080010
0720080011
Hearing Nos. 550-2006-00028X
550-2006-00037X
Agency Nos. 1F-941-0027-05
1F-941-0028-05
DECISION
Following its November 7, 2007 final action, 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 concerning
the complainants' reassignments in violation of Title VII of the Civil
Rights Act of 1964 (Title VII), as amended, 42 U.S.C. � 2000e et seq.,
and Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act),
as amended, 29 U.S.C. � 791 et seq. The agency also requests that the
Commission affirm its rejection of the relief ordered by the AJ.
At the time of events giving rise to the instant complaints, the
complainants were employed as Mail Processing Clerks at the agency's San
Francisco Processing and Distribution Center (P&DC) in San Francisco,
California. The record reflects that during the relevant time, the
complainants worked as "seeders" in the Operational Plant Support (OPS)
unit. The record further reflects that the OPS unit was staffed with
employees who were in limited or light duty, including the complainants,
who suffered from physical impairments. The OPS unit monitored the
efficiency of the agency's delivery system by dropping test pieces of
mail and tracking the results, among other things.
Agency No. 1F-941-0027-05
On September 28, 2005, complainant Cuellar (CUELLAR) filed a formal
complaint alleging that he was discriminated against on the bases of sex
(male), perceived disability (bilateral wrist injuries/neck and shoulder
injuries), and in reprisal for prior protected activity when on May 25
and 27, 2005, his light duty assignment was changed and he was assigned
to the workroom floor.
Agency No. 1F-941-0028-05
On October 4, 2005, complainant Garcia (GARCIA) filed an EEO complaint
alleging that he was discriminated against on the bases of sex (male),
perceived disability (vision impairment), national origin (El Salvador),
and in reprisal for prior EEO activity when on May 25 and 27, 2005, his
light duty assignments were changed and he was assigned to the workroom
floor.
The record reflects that the agency consolidated CUELLAR and
GARCIA's complaints and conducted an investigation. Following the
investigation, CUELLAR and GARCIA were provided with copies of the report
of investigation and requested a hearing before an EEOC Administrative
Judge (AJ).
Following a hearing on September 13 and 14, 2007, the AJ issued a
decision on September 25, 2007. In her decision, the AJ found that
with regard to the complainants' work assignment and reassignment
claims, the complainants did not establish a prima facie case of sex,
national origin and reprisal discrimination. Regarding the basis
of disability, the AJ found that there was no credible evidence that
the complainants' supervisor (S1) perceived them as being "disabled",
as defined by the Rehabilitation Act.1 The AJ further found that the
agency articulated legitimate nondiscriminatory reasons for its actions
which the complainants failed to show were a pretext for discrimination.
The AJ found, however, that the complainants established a prima
facie case of reprisal discrimination with regard to their respective
reassignments out of the OPS unit in May 2005. The AJ found that the
evidence presented clearly established that there was a casual connection
between the complainants' prior protected activity and their respective
reassignments in May 2005. Specifically, the AJ found that the five
month gap in time between the complainants' most recent EEO activity in
December 2004 and S1's decision to reassign them out of her unit in May
2005 was sufficiently proximate to suggest a casual connection between
their prior protected activity and their subsequent reassignments. The AJ
further found that S1's own testimony suggested that the reassignments
were motivated by retaliatory animus, noting that she responded to
employee complaints by telling the complaining employee that he or she
could find another assignment somewhere else outside of her unit.
Evidence on Damages - Complainant Cuellar (CUELLAR)
CUELLAR testified that his reassignment out of the OPS unit exacerbated
his pre-existing stress which had been caused by S1's allegedly unfair
work assignments. The AJ noted that although CUELLAR acknowledged
that he had never sought any psychological counseling to help him cope
with his reassignment, CUELLAR stated that it was because his Mexican
culture does not encourage men to seek such assistance. The AJ noted
that CUELLAR testified that he had internalized the stress and tried
to cope with it himself. The AJ concluded that this spare evidence of
emotional distress caused by CUELLAR's reassignment out of the OPS unit
established that CUELLAR was entitled to $2,000 in non-pecuniary damages
for the pain and suffering caused by the agency's unlawful retaliation.
Evidence on Damages - Complainant Garcia (GARCIA)
GARCIA testified that after being reassigned out of the OPS unit, he
became very depressed and anxious. GARCIA stated that his physician
referred him to a psychologist, who prescribed Zoloft and Buspar for
stress and depression. The psychologist subsequently diagnosed GARCIA
with Major Depressive Illness, increased his medication, and began to
see him biweekly. The AJ noted that GARCIA went off work on paternity
leave immediately after his reassignment, and remained off work at least
through August 16, 2007.
The AJ noted that the greater cause of GARCIA's condition appeared to be
the work assignments which he had not established were discriminatory,
but that GARCIA nonetheless was caused some stress by the reassignment
which was found to be retaliatory.
Further, the AJ found that GARCIA was so distraught with the prospect
of returning back to the workroom floor that he went on stress leave
immediately following his reassignment in May 2005 and has remained
off work ever since. GARCIA's psychologist (P1) testified that to date
GARCIA's psychological treatment had cost $4,500; and that GARCIA would
require 18 to 24 months of continuing treatment although he did not
specify the expected frequency of such treatment. The AJ found that
P1 explained that he based this estimate on his expectation that upon
GARCIA's return to work, GARCIA would likely experience a period of
adjustment which could last from 12 to 18 months. The AJ determined
while it was clear that GARCIA acknowledged the emotional distress he
experienced after his reassignment in May 2005 was also the result of
nondiscriminatory factors, notably, his allegedly unfair work assignments
which were not found to be unlawful, the AJ concluded that he was not
entitled to the full $4,500 for past medical expenses. Rather, the AJ
found that GARCIA was entitled to $1,500, one-third of the $4,500 for
past medical expenses. The AJ also found that complainant was entitled
to $1,500, one-third of his claimed future medical expenses.
Regarding GARCIA's request for back pay for the time he had been off work
due to his ongoing anxiety and depression, the AJ determined that GARCIA
was not entitled to any back pay for the relevant time. Specifically,
the AJ concluded that GARCIA failed to demonstrate the agency's unlawful
decision to reassign him to another modified duty assignment was the cause
of his failure to report back to work, because there was no evidence
presented that this new assignment would have exceeded his medical
restrictions; further, it was unclear whether the new assignment might
not have mitigated the stress of returning to work because he would no
longer have to report to S1, the responsible management official GARCIA
claimed was responsible for such stress.
After a review of the testimony and medical records, the AJ found
that the complainants established a link between them being subjected
to discrimination/retaliation and the resulting emotional distress.
The AJ awarded CUELLAR $2,000 in non-pecuniary compensatory damages to
compensate him for the discrimination. The AJ awarded GARCIA $2,000 in
non-pecuniary damages, $1,500 in past medical expenses and $1,500 future
medical expenses to compensate him for the discrimination. As for the
remaining remedies, the AJ ordered the agency to pay attorney's fees
and costs in the amount of $42,271.13.
On November 7, 2007, the agency issued a final action rejecting the
AJ's finding that CUELLAR and GARCIA proved that they were subjected to
retaliation when they were reassigned to the workroom floor in May 2005.
The agency also filed the instant appeal.
In its appellate brief, the agency argued that the AJ's finding of
retaliation concerning the complainants' reassignments was not supported
by substantial evidence. Specifically, the agency argued that the
evidence demonstrated that the complainants did not engage in prior
protected activity, that there was no adverse action and no nexus between
the protected activity and the reassignments. The agency further argued
that there was substantial evidence supporting management's legitimate,
nondiscriminatory reasons for reassigning the complainants to other
full-time job opportunities. The agency argued that even if its final
action is reversed in substance, the attorney's fees award be reduced.
The agency argued that the AJ abused her authority by only reducing the
attorney's fees 20 percent of all claimed fees and that the attorney's
fees should be reduced to reflect the complainants' limited actual
success.
In a cross-appeal, the complainants, through their attorney, requested
that the Commission deny the agency's appeal. Specifically, the
complainants argued that the AJ properly found their reassignments
constituted adverse employment actions, and that she did not abuse
her discretion when she reduced the attorney fee award by 20 percent
instead of a larger amount. Complainant GARCIA further argued that
the AJ improperly denied his request for back pay, noting that it was
not until the reassignment that his stress became so severe that he was
unable to work.
The Commission discerns no basis to disturb the AJ's findings of
discrimination. These findings are supported by substantial evidence,
and the AJ correctly applied the appropriate regulations, policies,
and laws. However, we find that the AJ did not award complainants the
full measure of relief to which they were entitled.
With regard to the awards of non-pecuniary damages ordered by the AJ are
insufficient to remedy the harm sustained by the complainants. In the
case of complainant CUELLAR, we find that this complainant is entitled
to an award of non-pecuniary damages in the amount of $5,000. See Ellis
v. Department of Education, EEOC Appeal No. 01A42966 (August 25, 2006)
($5000 awarded where complainant presented limited evidence of emotional
harm); Varnado v. Department of Veterans Affairs, EEOC Appeal No. 07A30101
(April 5, 2004) ($5000 awarded where evidence reflected non-compensable
contributing factors).
In the case of complainant GARCIA, we find that this complainant is
entitled to an award of non-pecuniary damages in the amount of $10,000.
See Donata v. United States Postal Service, EEOC Appeal No. 01A54941
(May 5, 2006) ($10,000 awarded where complainant required medical
treatment for stress); Jenkins v. United States Postal Service, EEOC
Appeal No. 07A30087 (January 30, 2004) ($10,000 awarded on evidence that
discrimination worsened stress).
We note that the AJ denied complainant GARCIA's request for back pay,
stating that the evidence of record failed to demonstrate that the
agency's decision to reassign him to another modified duty assignment
was the cause of his failure to report back to work, because there was
no evidence presented that this new assignment would have exceeded his
medical restrictions. The AJ further stated that it was unclear whether
the new assignment might not have mitigated the stress of returning to
work because GARCIA would no longer have to report to S1.
We find, however, that GARCIA presented evidence, in the form of both
his own testimony and the testimony of his treating psychologist, that
the precipitating factor in his inability to work was the discriminatory
reassignment. This testimony supports the conclusion that GARCIA is
entitled to back pay for the period of time he was off work almost
immediately following the reassignment, since May 28, 2005. The agency
adduced no evidence to contradict this conclusion. Accordingly, GARCIA
is entitled to back pay commencing May 28, 2005.2
We further find that given the specific facts in this case, the AJ's
award of attorney's fees and costs is appropriate. The record contains
a copy of the complainants' attorney's petition fee dated August 21,
2007. Therein, the attorney requested fees and costs in the amount
of $52,681.53. The agency submitted its Opposition to Complainant's
Petition for Attorney's fees objecting to the fee petition and suggested
a reduction of attorney's fees and legal costs Specifically, the agency
argued that there were unreasonable hours spent researching and compiling
materials responsive to requests which should be routine for an attorney
with many years of employment law experience; and that complainants
were not entitled to full attorney's fees and costs and 50 percent of
travel-related fees because they did not prevail on all of their claims.
We note that in her decision, the AJ determined that the complainants'
attorney's time records were sufficient and thoroughly detailed. The AJ
determined that a review of the record indicates that complainant's
attorney requested a payment of $52,681.53 in attorney's fees and
legal costs. The AJ concluded that the complainants' attorney's hourly
rate of $385.00 was reasonable for San Francisco, California. The AJ
determined that while some evidence regarding the complainants' allegedly
discriminatory work assignments was clearly necessary to support their
successful allegations regarding their reassignments out of the OPS
unit, these unsuccessful discrimination claims were in part factually
distinct from their successful reprisal claim. The AJ concluded that a
20% across-the-board reduction of the attorney's fees was appropriate in
the instant case to reflect the fractionable nature of their successful
claims.
Regarding the agency's argument that the attorney's fees should be reduced
to reflect the fact that the attorney's fee petition included inadequate
description of the work she performed on the subject complaints, the AJ
determined that the attorney's description was adequate. The AJ further
rejected the agency's argument that the complainants' attorney was not
entitled to a full award of fees for research because she holds herself
as an expert in employment law. The AJ found no reason to reduce the
hours claimed for performing research in the instant case. Finally,
the AJ rejected the agency's argument that "at least two entries nothing
'compiling' and organizing of documents" are not compensable attorney
time and should be excluded from any attorney's fee award because such
duties are clerical in nature and should be a part of the normal operating
overhead. Specifically, the AJ agreed with the complainants' argument
that such time was fully compensable since "any compiling of documents
in response to discovery included the undersigned counsel reviewing the
entire files to determine which documents were responsive and should
be provided, a task which involves legal expertise and knowledge of the
case."
Regarding legal costs, the AJ noted that the complainants' attorney
requested $783.53 in legal costs. In support of her assertions, the
attorney submitted two invoices, one from P1 for his appearance as a
witness at the hearing on behalf of GARCIA and one invoice documenting
$33.53 for copying fees. The AJ rejected the agency's argument that P1's
requested fee of $750.00 should be denied because it was not supported by
a contemporaneous record for the work he actually performed in relation
to the instant case or by any other sufficiently detailed information
indicating his hourly rate. The AJ noted that in his invoice, P1 clearly
indicated his hourly fee for preparation ($150.00 per hour) and testimony
($450.00). The AJ further noted that P1's billing statement was adequate
and reasonable. Therefore, the AJ determined that GARCIA was entitled
to a full $750.00 in costs claimed for P1's participation in this case.
Moreover, the AJ noted that the agency did not object to the remaining
costs for copying expenses.
The AJ therefore awarded the complainants a total award of $42,271.13
in attorney's fees and costs ($41,487.60 in attorney's fees and $783.53
for legal costs). We concur that the agency shall pay the amount of
$42,271.13 in attorney's fees and costs.
We REVERSE the agency's final action and REMAND this matter to the agency
to take remedial action in accordance with this decision and the ORDER
below.
ORDER
The agency is ordered to take the following remedial action:
1. Within sixty (60) calendar days of the date this decision becomes
final, the agency shall tender to CUELLAR $5,000.00 in non-pecuniary
damages; and to GARCIA $10,000.00 in non-pecuniary compensatory damages,
$1,500.00 in past medical expenses, and $1,500.00 in future medical
expenses.
2. The agency shall determine the appropriate amount of back pay, with
interest, and other benefits due complainant GARCIA, pursuant to 29
C.F.R. � 1614.501, no later than sixty (60) calendar days after the date
this decision becomes final. Complainant GARCIA shall cooperate in the
agency's efforts to compute the amount of back pay and benefits due,
and shall provide all relevant information requested by the agency.
If there is a dispute regarding the exact amount of back pay and/or
benefits, the agency shall issue a check to complainant GARCIA for
the undisputed amount within sixty (60) calendar days of the date the
agency determines the amount it believes to be due. Complainant GARCIA
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."
The agency is further directed to submit a report of compliance, as
provided in the statement entitled "Implementation of the Commission's
Decision." The report shall include supporting documentation of the
agency's calculation of back pay and other benefits due complainant,
including evidence that the corrective action has been implemented.
3. Within sixty (60) calendar days of the date this decision becomes
final, the agency shall tender to complainants' attorney $42,271.13 in
attorney's fees and costs.
4. The agency shall post a notice in accordance with the paragraph 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.
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.
POSTING ORDER (G0900)
The agency is ordered to post at its San Francisco P&DC in San Francisco,
California, copies of the attached notice. Copies of the notice, after
being signed by the agency's duly authorized representative, shall
be posted by the agency within thirty (30) calendar days of the date
this decision becomes final, and shall remain posted for sixty (60)
consecutive days, in conspicuous places, including all places where
notices to employees are customarily posted. The agency shall take
reasonable steps to ensure that said notices are not altered, defaced,
or covered by any other material. The original signed notice is to be
submitted to the Compliance Officer at the address cited in the paragraph
entitled "Implementation of the Commission's Decision," within ten (10)
calendar days of the expiration of the posting period.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0408)
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 (M0408)
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 (S0408)
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 (Z0408)
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 18, 2008
Date
1 The Commission presumes for purposes of analysis only, and without so
finding, that complainants are each an individual with a disability.
2 We note that during the pendency of these proceedings, the agency
proposed to remove GARCIA from employment. Whether in fact it has done
so is not readily apparent, and this issue is not before us.
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0720080010
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
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0720080010
0720080011