0720150021
04-28-2016
Nannie D.,1 Complainant, v. Eric Fanning, Acting Secretary, Department of the Army, Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Nannie D.,1
Complainant,
v.
Eric Fanning,
Acting Secretary,
Department of the Army,
Agency.
Appeal No. 0720150021
Hearing No. 551-2012-00095X
Agency No. ARIMWE11MAR01153
DECISION
Following the Agency's February 2, 2015, final order, Complainant filed an appeal which the Commission accepts as timely. In its final order, the Agency adopted the decision of an Equal Employment Opportunity Commission Administrative Judge finding that it subjected Complainant to discrimination in violation of Title VII of the Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. � 2000e et seq. For the following reasons, the Commission MODIFIES the Agency's final order with respect to attorney's fees and costs.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Labor Attorney at the Agency's Joint Base Lewis-McChord facility in Washington. On May 23, 2011, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the bases of her national origin (Hispanic), sex (female), and in reprisal for prior protected EEO activity when she was subjected to a hostile work environment between September 2010 and November 2011. At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation and notice of her right to request a hearing before an Equal Employment Opportunity Commission Administrative Judge (AJ). Complainant timely requested a hearing and the AJ held a hearing on July 30-31 and September 12 and 19, 2013. The AJ issued a decision on December 17, 2014, finding that the Agency subjected Complainant to unlawful reprisal harassment.
By way of remedies, the AJ ordered the Agency to: (1) pay Complainant $35,000 in nonpecuniary, compensatory damages, (2) attorney's fees and costs; (3) provide training to employees regarding reprisal; (4) reinstate all sick and annual leave used by Complainant between September 27, 2010 and November 30, 2011; (5) ensure all employees are protected against retaliation; and (6) post a notice of the finding of discrimination. The Agency's February 2, 2015, final action accepted the AJ's finding of discrimination and implemented the ordered relief.2 On appeal, Complainant requests that the Commission increase the award of nonpecuniary, compensatory damages to $90,000.00.
The AJ subsequently issued a decision on attorney's fees and costs, dated May 5, 2015. Complainant's attorney submitted a fee petition requesting $121,745.00 in attorney's fees and $8,367.53 in costs. In his decision, the AJ reduced the requested fees for travel time by 50%, and applied an across-the-board reduction of 25% based on the partial finding of liability. Specifically, the AJ found that because Complainant did not prevail on the bases of national origin or sex, this reduction was appropriate. Accordingly, the AJ issued an award of $91,308.75 in fees and $6,916.27 in costs. The AJ also denied Complainant's request for an additional 2.42 hours for preparing a reply brief as the brief was untimely. On appeal, Complainant argues that the AJ erred in applying a 25% across-the-board reduction as the bases of national origin and sex are not truly fractionable from the basis of reprisal, and argues that the AJ erred in denying fees and costs for the reply brief.3 The Agency requests that we affirm the AJ's decision on attorney's fees.
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.
Compensatory Damages
Non-pecuniary damages are available to compensate the 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 the complainant is a victim of discrimination. The existence, nature, and severity of emotional harm must be proved. The method for computing non-pecuniary damages should typically be based on a consideration of the severity and duration of harm. Carpenter v. Department of Agriculture, EEOC Appeal No. 01945652 (July 17, 1995). 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-Jenkcins v. Department of the Interior, EEOC Appeal No. 01961483 (March 4, 1999) (citing Cygaar v. City of Chicago, 865 F.2d 827, 848 (7th Cir. 1989)).
Here, the AJ found that Complainant was able to show that for a period of 14 months, she suffered stress, anxiety, fear of losing her job, became easily frustrated and angry, had trouble sleeping, and that the harassment negatively affected her relationship with her daughter. Despite Complainant's contentions on appeal, we find that the AJ's award of $35,000.00 in non-pecuniary, compensatory damages is appropriate. We find that this award is not "monstrously excessive" standing alone, is not the product of passion or prejudice, and is consistent with the amount awarded in similar cases. See Smith v. United States Postal Service, EEOC Appeal No. 0720070031 (Dec. 7, 2009) ($30,000 in non-pecuniary damages where complainant suffered from emotional harm in the form of humiliation, harassment, sleeplessness, and feelings of uncertainty about her job and career, and a relapse of depression); Carlson v. Dep't of Justice, EEOC Appeal No. 01A51437 (April 27, 2005) ($30,000 in non-pecuniary damages where complainant testified that he suffered depression, anger, alienation, humiliation, embarrassment, and loss of status); and Garrett v. U.S. Postal Service, EEOC Appeal No. 07A30024 (February 25, 2004) ($35,000 in non-pecuniary damages where complainant experienced emotional distress, depression, anger, embarrassment, humiliation, headaches, and sleep difficulties).
Attorney's Fees and Costs
The Commission's regulations authorize the award of reasonable attorney's fees and costs to a prevailing complainant. 29 C.F.R. � 1614.501(e). Fee awards are typically calculated by multiplying the number of hours reasonably expended times a reasonable hourly rate, an amount also known as a lodestar. See 29 C.F.R. � 1614.501(e)(ii)(B); Hensley v. Eckerhart, 461 U.S. 424 (1983). All hours reasonably spent in processing the complaint are compensable, but the number of hours should not include excessive, redundant, or otherwise unnecessary hours. A reasonable hourly rate is based on prevailing market rates in the relevant legal community for attorneys of reasonably comparable skill, experience, and reputation in similar cases. Blum v. Stenson, 465 U.S. 886 (1984). In determining the degree of success, the Commission will consider all relief obtained in light of a complainant's goals, and, if a complainant achieved only limited success, the complainant should recover fees that are reasonable in relation to the results obtained. Hensley, 461 U.S. at 434. While a reasonable fee should not be determined simply by mathematical formula, hours spent on unsuccessful claims should be excluded from the amount of a reasonable fee. Id.
Attorney's fees may not be recovered for work on unsuccessful claims. Hensley, 461 U.S. at 434-35. 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. Sec'y 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 434-35. In cases where a claim for relief involves "a common core of facts or will be based on related legal theories," however, a fee award should not be reduced simply because the plaintiff failed to prevail on every contention raised in the lawsuit. Id. at 435.
Initially, in the instant case, we concur with the AJ's finding that Complainant's attorney is not entitled to fees and costs related to the reply brief as the brief was untimely filed. We also find, however, that the AJ erred in reducing the amount of attorney's fees based on unsuccessful claims. We find that the bases of national origin and sex are not truly fractionable from the basis of reprisal as Complainant prevailed on the claim of a hostile work environment. Based on the AJ's finding that Complainant was subjected to unlawful harassment, it cannot be said that the bases of national origin or sex on which Complainant did not prevail were distinct from the basis of retaliation on which she was successful. Therefore, we conclude that no reduction in the fee award is warranted here based on the unsuccessful bases. Accordingly, we find that Complainant's attorney is entitled to fees of $121,745.00 and costs of $8,367.53.
CONCLUSION
After a careful review of the record in its entirety, including consideration of all statements submitted on appeal, it is the decision of the Commission to AFFIRM the AJ's finding of reprisal discrimination and the award of $35,000 in compensatory damages. We also MODIFY the AJ's decision addressing the amount of attorney's fees to be awarded. We conclude that Complainant is entitled to attorney's fees of $121,745.00 and costs of $8,367.53.
ORDER
To the extent it has not already done so, the Agency shall take the following remedial actions:
1. Within 60 days of the date on which this decision becomes final, the Agency shall pay Complainant attorney's fees in the amount of $121,745.00 and costs in the amount of $8,367.53.
2. Within 60 days of the date on which this decision becomes final, the Agency shall pay Complainant $35,000.00 in non-pecuniary, compensatory damages.
3. Within 180 days of the date on which this decision becomes final, the Agency shall provide training to all managers, supervisors, and employees at Joint Base Lewis-McChord on their rights and responsibilities under EEO law, with particular focus on preventing unlawful retaliation.
4. Within 60 days of the date on which this decision becomes final, the Agency shall restore all sick and annual leave used by Complainant between September 27, 2010, and November 30, 2011.
5. The Agency shall consider taking disciplinary action against responsible Agency employees found to have discriminated against Complainant. The Agency shall report its decision to the Commission. If the Agency decides to take disciplinary action, then it shall identify the action taken. If the Agency decides not to take disciplinary action, it shall set forth the reasons for its decision not to impose discipline.
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 (G0914)
The Agency is ordered to post at its Agency's Joint Base Lewis-McChord facility in Washington copies of the attached notice. Copies of the notice, after being signed by the Agency's duly authorized representative, shall be posted both in hard copy and electronic format by the Agency within 30 calendar days of the date this decision becomes final, and shall remain posted for 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 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)), 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 (M0815)
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 Chap. 9 � VII.B (Aug. 5, 2015). 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 (T0610)
This decision affirms the Agency's final decision/action in part, but it also requires the Agency to continue its administrative processing of a portion of your complaint. 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 on both that portion of your complaint which the Commission has affirmed and that portion of the complaint which has been remanded for continued administrative processing. 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 your appeal with the Commission, until such time as the Agency issues its final decision on your complaint. 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 (Z0815)
If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may request permission from the court to proceed with the civil action without paying these fees or costs. Similarly, if you cannot afford an attorney to represent you in the civil action, you may request the court to appoint an attorney for you. You must submit the requests for waiver of court costs or appointment of an attorney directly to the court, not the Commission. The court has the sole discretion to grant or deny these types of requests. Such requests do not alter the time limits for filing a civil action (please read the paragraph titled Complainant's Right to File a Civil Action for the specific time limits).
FOR THE COMMISSION:
______________________________ Carlton M. Hadden's signature
Carlton M. Hadden, Director
Office of Federal Operations
April 28, 2016
__________________
Date
1 This case has been randomly assigned a pseudonym which will replace Complainant's name when the decision is published to non-parties and the Commission's website.
2 The Agency initially appealed a single provision of the December 17, 2014, AJ's decision, arguing that it could not comply with the AJ's order because he had not issued a decision on attorney's fees. Following the AJ's May 5, 2015, decision on attorney's fees, the Agency withdrew its appeal.
3 Complainant does not raise any of the AJ's other findings on appeal, and as such, we decline to address any such issues on appeal. Also, because Complainant does not challenge the AJ's reduction of travel time in the attorney's fees award, we will not disturb that reduction.
---------------
------------------------------------------------------------
---------------
------------------------------------------------------------
2
0720150021
2
0720150021