01a53977
12-19-2005
Pamela J. Mullen, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, (Eastern Area), Agency.
Pamela J. Mullen v. United States Postal Service
01A53977
December 19, 2005
.
Pamela J. Mullen,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
(Eastern Area),
Agency.
Appeal No. 01A53977
Agency No. 4-C-080-0048-02
Hearing No. 170-A3-8484X
DECISION
Complainant timely initiated an appeal from the agency's final order
concerning her equal employment opportunity (EEO) complaint of unlawful
employment discrimination in violation of Title VII of the Civil Rights
Act of 1964 (Title VII), as amended, 42 U.S.C. � 2000e et seq. and
Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as
amended, 29 U.S.C. � 791 et seq. The appeal is accepted pursuant to 29
C.F.R. � 1614.405. For the following reasons, the Commission affirms
the agency's final order.
ISSUES PRESENTED
The issues presented are whether complainant was discriminated against
on the bases of disability, sex (female), and in reprisal for prior EEO
activity when: (1) she was temporarily taken out of her EAS-19 position
and detailed as Manager, Safety and Health; (2) she was prevented from
performing either the Equal Employment Opportunity (EEO) or Alternative
Dispute Resolution (ADR) portions of her position, and her request for
reasonable accommodation was denied; (3) she was notified that her salary
would be reduced from a saved salary EAS-23 to an EAS-19; and (4) she was
permanently reassigned to the position of EAS-19 Diversity Specialist.
If complainant was subjected to discrimination, an additional issue
presented is whether the EEOC Administrative Judge's decision regarding
the amount of complainant's compensatory damages and attorney's fees
was appropriate.
BACKGROUND
Since May 2000, complainant held the position of Manager, EEO Dispute
Resolution, EAS-19, at the South Jersey District Office, located in
Bellmawr, New Jersey. Complainant had previously held the position
of Appeals Review Specialist/EEO ADR Coordinator (EAS-23), when it
was located in Philadelphia, Pennsylvania. In July 2000, the entire
office split into three separate offices and was moved to Pittsburgh,
Pennsylvania; Dulles, Virginia; and Shirlington, VA. Those employees
who chose not to move to one of these locations to retain their position,
such as complainant, were offered other positions in the local commuting
area or chose to retire. Complainant requested, and received the position
of Manager, EEO Dispute Resolution, EAS-19. Further, because complainant
was an impacted employee under the restructuring, the agency reduced her
grade to EAS-19, but she was to receive EAS-23 salary protection �for
a period not to exceed two (2) years from the effective date of May 6,
2000.�
The functional purpose of an EAS-19, Manager, EEO Dispute Resolution is
to manage the EEO dispute resolutions process for a district through
pre-complaint counseling and EEO alternative dispute resolution (ADR)
activities. The requirements of the position included, among other
things, a training requirement. Specifically, the agency described the
training requirement as follows: �the selected applicant will not be
permanently placed until after successful completion of the training
program.�<1> EEOC requires that new EEO Counselors receive a minimum
of thirty-two (32) hours of EEO Counselor training.
Complainant never obtained certification, and did not attend the
required training prior to commencing her duties as an EAS-19, Manager,
EEO Dispute Resolution. Complainant did attend a 24-Hour Advanced
EEO Counselor Training class in June 2001; however, the class did not
qualify her for Counselor/Investigator certification. In a February 20,
2002 memorandum, complainant was advised of upcoming Dispute Resolution
(DRS) training, which was tentatively scheduled for April 1-12. On March
1, 2002 management issued an e-mail detailing the information for the
upcoming EEO training, which was scheduled to be held in San Diego,
California from April 1, 2002 through April 11, 2002. On March 14,
2002, complainant responded to the e-mail stating, in part, that based
on her �experience and current status, it appears as if training is
discretionary and not mandatory.� She also provided a memorandum to her
first line supervisor (S1) advising that she would be �unable to attend
the training� at that time, stating in pertinent part: �[A]s a result
of the incidents that occurred on September 11, 2001, I will not fly at
this point in my life...Not only am I anxiety-ridden about flying, but
also I am emotionally incapable of leaving my daughter for any period
of time....�
On March 15, 2002, S1 sent an e-mail to complainant's second line
supervisor (S2) requesting to waive complainant from the training
requirement based on complainant's skills and experience on the job.
S2 sent an e-mail to the Vice-President, Area Operations (S3),
supporting complainant's waiver. Complainant's former supervisor
and then Manager, Human Resources (FS), also provided his support
of complainant's request for a waiver of the training requirement.
S3 responded that �the referenced training was required by the Postal
Service for the employees in the position [complainant] holds and, such,
I cannot waive it.� However, on March 28, 2002, complainant advised the
agency that she still would not be attending the training. Thereafter,
effective May 1, 2002, S1 took complainant out of the EAS-19 Manager,
EEO Dispute Resolution position, and temporarily detailed her to the
position of EAS-19 Manager, Safety and Health, pending her attendance
at the required training and subsequent certification.
On May 7, 2002, in a memorandum to S1, complainant formally requested
reasonable accommodation for her disabilities, anxiety disorder and
flying phobia. She requested to be afforded the opportunity to remain
in the position of EAS-19 Manager, EEO Dispute Resolution, until the
training became available within the local commuting area. In June 25,
2002, the Reasonable Accommodation Committee (RAC) met and reviewed
complainant's request for reasonable accommodation. The RAC came to the
conclusion that they did not have sufficient information to determine
any limitations that complainant may have, and they requested medical
certification of complainant's condition.
Complainant submitted two letters from her physicians, dated July 12,
2002 and July 18, 2002. Complainant's physician (D1) was advised of
complainant's �progressive episodes of panic,� and noted her fear
of flying. D1 stated, in pertinent part, that �I recommended that
the pressure to fly should be re-evaluated, and some provisions be
made not to require her to fly.� Complainant's psychologist (D2),
who had treated complainant since June 13, 2002, stated, in pertinent
part, that complainant �has been under a great deal of anxiety as a
function of several stressors including her employment not accommodating
to what appears to be her reasonable request to recognize her prior
training and work experience as equivalent to that required for her job.
More significant is her employer's refusal to grant her request for venue
change in order to take training that would not require her to travel
by air...� D2 also added that complainant's �symptoms include feelings
of anxiety, depression, lethargy, and sleeplessness..� On July 31,
2002, complainant sought additional, psychological counseling (D3) for
the depression, anxiety, and heart palpitations she was experiencing.
D3 diagnosed complainant with Post Traumatic Stress Disorder (PTSD).
D3 made this diagnosis based on complainant's having experienced her
niece dying in her arms in the hospital in January 1987.
In the meantime, on July 12, 2002, S1 advised complainant that her
�entitlement to protected salary for a period of two years� had expired
on May 18, 2002. S1 further advised her that he had instructed Personnel
to make the necessary adjustments to bring her salary and grade into
alignment. The agency paid complainant at the EAS-23 level from May
18, 2002 through July 26, 2002, and erroneously, due to an office's
reorganization, paid complainant at the EAS-19 level from July 27, 2002
through September 6, 2002. In September 7, 2002, the agency corrected the
mistake and returned to paying complainant at EAS-23 level, in accordance
with the �salary protection.� Complainant was paid retroactively for
the error.<2>
On July 23, 2002, S1 advised complainant that effective July 27, 2002,
she would be permanently reassigned to the position of EAS-19, Diversity
Specialist. On August 2, 2002, an e-mail was sent to the Area offices
indicating that the next Dispute Resolution Specialist class was going
to be offered September 30 through October 11, 2002, and that training
centers being given first consideration were the Bolger, Maryland and
Norman, Oklahoma facilities. Complainant sent an e-mail to S1 asking
him if he would submit her name for a slot.<3> S1 responded to the
e-mail as follows: �Sorry, but since you are in the Diversity position,
there is no need for the training.�
On January 7, 2003, the agency advertised the position of EAS-19 Manager,
Dispute Resolution, under Vacancy Announcement No. 07606. The position
included as a requirement, training as an EEO Counselor. The training
requirement was included under the �Requirements� portion of the vacancy
announcement, and was not required to have been met prior to being
placed in the position. The announcement stated that the selectee for
the position would not be �permanently placed� into the position �until
after successful completion of this training program.� On January 23,
2003, complainant requested a non-competitive lateral assignment into
the position. On January 31, 2003, past the closing date of the position,
S1 responded to complainant that he would prefer that she compete during
the competitive process.
Based on the foregoing, complainant filed a formal EEO complaint on
October 12, 2002, alleging that the agency discriminated against her on
the bases of race (Caucasian), national origin (English/Irish-American),
sex (female), disability, and in reprisal for prior EEO activity when:
(1) on May 1, 2002, she was taken out of her Manager, EEO Dispute
Resolution position and unilaterally placed into the position of Manager,
Safety and Health;
on June 26, 2002, she was prevented from performing either the EEO or
ADR portions of her Manager, EEO Dispute Resolution position, and was
denied accommodation when her request to remain in her Manager, EEO
position until training was available locally was denied;
on July 12, 2002, the agency prematurely reduced her saved salary from
EAS Level 23 to EAS Level 19;
On or about October 22, 2002, complainant again sought EEO counseling
seeking amendment of her complaint, and included a new issue:
effective July 27, 2002, she was permanently reassigned to the position
of Diversity Specialist, EAS Level 19;
On or about November 5, 2002, complainant sought further amendment of
her complaint to include the following claim:
on August 12, 2002, her request to attend EEO Dispute Resolution
Specialist training was denied;
On or about February 4, 2003, complainant again sought EEO counseling,
claiming an additional act of discrimination by the agency, when:
on January 31, 2003, her request for a noncompetitive lateral reassignment
to her previous position as Manager, EEO Dispute Resolution was
denied.<4>
At the conclusion of the investigation, complainant was provided a
copy of the investigative report and requested a hearing before an EEOC
Administrative Judge (AJ). Following a hearing, the AJ issued a partial
finding of discrimination.
AJ's decision
The AJ concluded that complainant established that she was discriminated
against in reprisal for prior EEO activity when: on August 12, 2002,
her request to attend EEO Dispute Resolution Specialist training was
denied; and on January 31, 2003, her request for a noncompetitive
lateral reassignment to her previous position of Manager, EEO Dispute
Resolution was denied (claims 5 and 6). The AJ based her finding on
determinations she made about the credibility of the Eastern Area Manager,
Human Resources (HR) in those matters. Specifically, HR indicated that
it was complainant's supervisor, S1, who denied her request for the
training, when S1 credibly testified that it was HR who told him � No,
she's not on the job. �She's not going to training. That's your story�
and that it did not make sense to him to handle the situation in this
manner as it placed complainant in a �catch 22" position. Moreover,
the AJ was also persuaded by the testimony of complainant's second level
supervisor, S2, who had observed that HR displayed obvious frustration in
discussing complainant, describing her as �litigious and argumentative.�
The AJ also concluded that complainant failed to establish a prima facie
case of discrimination based on mental disability on any of the claims.
Specifically, the AJ found that complainant claims she suffers from
stress/depression, panic disorder and fear of flying. However,
the AJ found that she failed to establish that any of the claimed
mental impairments substantially limited one or more of her major life
activities. The AJ noted that complainant testified extensively with
regard to how the death of her niece in January 1987 affected her, and
caused her severe stress and depression. The AJ found that after the
death of her niece, complainant saw a treating physician who prescribed
her an antidepressant. The AJ also found that after complainant's
niece's death, she �threw herself� into her new assignment with the
agency and the following year in 1994, she threw herself �into a more
challenging assignment.� Therefore, the AJ concluded that complainant
failed to show that because of her severe stress and depression she was
substantially limited in any of her major life activities.
The AJ noted that complainant testified to experiencing some degree of
depression after the birth of her child in September 2000, and then again
after September 11, 2001, and when anthrax was found at her facility.
The AJ also noted that complainant testified how stressful it was at this
time, because she served on the crisis management team, was counseling
employees, and was involved in the distribution of Cipro to the employees.
However, the AJ concluded that complainant failed to establish that her
stress/depression was sufficiently long-term, and that complainant failed
to meet the threshold burden of establishing that her stress/depression
are physical impairments which substantially limit one or more of her
major life activities.
With regard to complainant's claim that she suffers from a panic
disorder, the AJ found that in all of her correspondence to the agency
from March 1, 2002 to July 12, 2002, complainant never formally advised
the agency that she in fact possessed such a disorder. The AJ noted
that complainant merely spoke of being �anxiety-ridden about flying.�
The AJ also found that it was not until July 12, 2002, that D1 advised
the agency that complainant was experiencing �progressive episodes of
panic,� however, D1 did not indicate whether complainant's episodes of
panic substantially limited one or more of her major life activities.
Regarding complainant's fear of flying, the AJ concluded that complainant
failed to demonstrate that the fear of flying substantially limited
one or more of complainant's major life activities. Therefore, the AJ
concluded that complainant was not an individual with a disability under
the protection of the Rehabilitation Act. The AJ further found that even
assuming arguendo that complainant was an individual with a disability,
the agency did not deny her reasonable accommodation. Specifically, the
AJ found that complainant was never barred from being allowed to travel
to training by alternative means. The AJ noted that management testified
that complainant had the opportunity to drive or take the train.
The AJ also concluded that complainant failed to establish a prima
facie case of sex discrimination, regarding claims (1), (2), and (6).
Specifically, the AJ concluded that complainant failed to show that she
was treated differently than male employees.
The AJ further found that assuming arguendo that complainant
had established a prima facie case of disability, sex or reprisal
discrimination, on claims (1-4), the agency articulated legitimate,
nondiscriminatory reasons for its actions. The AJ concluded that
complainant failed to establish that more likely than not, the reasons
provided by the agency were a pretext for retaliation. Specifically,
the AJ found that the EEO MD-110, as revised in 1999, established a
training requirement for all new EEO counselors and EEO Investigators,
and that EEO training was required for the EAS-19 Manager, EEO Dispute
Resolution position. The AJ also found that complainant was temporarily
removed from her EAS-19 position, and was prevented from performing
EEO or ADR duties, pending her attendance at the required training and
subsequent certification. The AJ further found that complainant was
permanently reassigned because she did not attend the required training,
in accordance with the EEOC's regulations and the agency's policy.
Regarding claim (3), the AJ found that the confusion about complainant's
pay status and the temporary reduction of her pay was the direct result
of the agency's EEO restructuring, and that the problem was ultimately
rectified.
Based on the finding of reprisal discrimination, on claims (5) and (6),
the AJ ordered the agency to: (1) allow complainant to attend the next EEO
Dispute Resolution Specialist training session, and allow her to travel by
car, train or any other mode of transportation; (2) reassign complainant
to the position of EEO Dispute Resolution; and (3) reimburse complainant
for the leave she used in August and September 2002, as a result of the
retaliation she experienced. The AJ also awarded complainant $6,038.65
in pecuniary damages; and $24,000.00 in non-pecuniary damages for her
mental anguish. The AJ further awarded complainant attorney's fees for
the total amount of $78,926.00 and costs totaling $4,598.00.
In a final action dated April 15, 2005, the agency implemented the AJ's
finding and order.
Complainant's contentions on appeal
In her extensive appeal, complainant restates many of the same arguments
she previously made at the hearing. Complainant contends that the AJ
erred by not finding discrimination based on her disability and sex,
and when she found no discrimination in claims (1-4). Specifically,
complainant argues that she is a qualified individual with a disability.
Complainant contends that her mental disability, which originated with
the trauma of her niece's death in 1987, has been so severe and impacted
her to the extent that it substantially limited and impaired her ability
to care for herself. Complainant also contends that she was diagnosed
with PTSD. Complainant further contends that due to her PTSD condition
she developed a fear of flying. Complainant argues that the agency denied
her reasonable accommodation when she was required to attend a training
in San Diego without providing her an alternate mode of travel other
than flying. Complainant also contends that the amount of compensatory
damages and attorney's fees awarded by the AJ were not appropriate.
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.
Reasonable Accommodation
We will assume for purposes of this decision, that complainant is an
individual with a disability. Assuming the complainant is disabled,
EEOC regulations require the agency to �make reasonable accommodation
to the known physical and mental limitations' of qualified disabled
applicants or employees unless the agency can demonstrate that the
accommodation would impose an undue hardship on the operation of its
program. 29 C.F.R. � 1614.203 (c)(3).
In the case at hand, complainant framed claim (2) as a denial of a
reasonable accommodation. The record indicates that complainant was
required to attend an EEO training, which was scheduled to be held
in San Diego, California from April 1, 2002 through April 11, 2002.
Complainant refused to attend because of her fear of flying and because
she was �incapable of leaving her daughter.� However, nothing in the
record demonstrates that complainant requested a reasonable accommodation.
Moreover, the record did not reveal that complainant informed the agency
of any disability which required accommodation. We find that it was
not until after the training, that complainant submitted to the agency
medical information regarding her alleged disability and requested
a reasonable accommodation. Specifically, complainant's physicians
diagnosed complainant with stress/depression and PTSD, and merely
recommended that complainant not be required to travel by air. As a
result, the agency never barred complainant from being allowed to travel
to training by alternative means, but the record shows that complainant
was reluctant to use alternative modes of travel. Specifically, the
record shows that when there was another training session scheduled,
complainant stated to her supervisor �I won't fly or travel 15 hours to
Norman, Oklahoma.� Therefore, we find that complainant has not shown
a violation of the Rehabilitation Act.
Disparate Treatment
After a careful review of the record, the Commission finds that the AJ's
findings of fact are supported by substantial evidence in the record
and that the AJ's decision properly summarized the relevant facts and
referenced the appropriate regulations, policies, and laws. We note
that complainant failed to present evidence that any of the agency's
actions in claims (1-4) were in retaliation for complainant's prior EEO
activity or were motivated by discriminatory animus toward complainant's
sex or alleged disability. We discern no basis to disturb the AJ's
decision. In reaching this conclusion, we note that complainant was
required to take an EEO training course because it was a requirement
of the position and EEOC regulations. The record supports that the
agency removed her from her EAS-19 position and EEO duties because
she did not attend the required training. We also note that there was
confusion with complainant's salary due to the agency's restructuring,
but the �mistake� was rectified and complainant was paid retroactively
for the �error.� We also find that complainant failed to rebut that the
training was a position requirement or demonstrate that this requirement
was discriminatory. Therefore, after a careful review of the record,
including complainant's contentions on appeal, the agency's response,
and arguments and evidence not specifically addressed in this decision,
we affirm the AJ's finding of no discrimination regarding claims (1-4).
We further discern no basis to disturb the AJ's finding of retaliation
discrimination regarding claims 5-6.<5>
Compensatory damages
Pecuniary Compensatory Damages
Complainant may be awarded damages for pecuniary losses which are
directly or proximately caused by the agency's discriminatory conduct.
EEOC Guidance: Compensatory and Punitive Damages Available Under
Section 102 of the Civil Rights Act of 1991, EEOC Notice N-915.002
(July 14, 1992), at 8. Pecuniary losses are out of pocket expenses
that are incurred as a result of the employer's unlawful action,
including job-hunting expenses, moving expenses, medical expenses,
psychiatric expenses, physical therapy expenses and other quantifiable
out of pocket expenses. Id. Past pecuniary losses are the losses that
are incurred prior to the resolution of a complaint via a finding of
discrimination, an offer of full relief, or a voluntary settlement, while
future pecuniary losses are those likely to occur after the resolution
of the complaint. Id. at 8-9. Benefits received by a complainant from a
source collateral to the agency may not be used to reduce the agency's
liability for damages. See Finlay v. United States Postal Service,
EEOC Appeal No. 01942985 (April. 29, 1997).
The amount to be awarded for pecuniary losses can be determined
by receipts, records, bills, canceled checks, confirmation by
other individuals, or other proof of actual losses and expenses. To
recover damages, the complaining party must prove that the employer's
discriminatory act or conduct was the cause of his loss. EEOC Guidance:
Compensatory and Punitive Damages Available Under Section 102 of the
Civil Rights Act of 1991, EEOC Notice No. N 915.002 (July 14, 1992).
The critical question is whether the complaining party incurred the
pecuniary losses as a result of the employer's discriminatory action or
conduct. Id.
The AJ concluded that complainant was entitled to pecuniary damages in
the amount of $6,038.65. Specifically, the AJ found that complainant
incurred expenses in the amount of $5,437.50 in association with the
individual psychotherapy. In addition, the AJ found that complainant has
incurred expenses in the amount of $260.00 and $125.00, for her treatment
by D1 and D2. Further, the AJ found that complainant was entitled to
receive compensation for the cost of medication she was required to
take as a result of the discrimination. However, the AJ only included
expenses paid by complainant from August 2002 to January 30, 2003.
Complainant contends that the record evidence and circumstances in
this case warrant a greater award of pecuniary damages. Specifically,
complainant seeks to recover for future pecuniary losses. Complainant
alleged that because of the profound loss to her identity and feelings of
worthlessness because she no longer is in a managerial position, she will
require continued psychological therapy for a period of 3 to 5 years.
She contends that in three years her condition can be professionally
reassessed. Complainant contends that the cost of continued psychotherapy
will be $85.00 per session, effective January 1, 2005. Complainant also
contends that the therapy sessions would be expected to be about once
a month for the projected period. However, we find that complainant's
claim is too speculative and no evidence was presented to permit an award
of future pecuniary damages. While complainant's physician testified
that complainant would need continued therapy, she could not say how long
complainant would need this, instead she merely stated �that it would be
based on how she was feeling.� Therefore, we agree with the AJ, and we
find that the amount of $6,038.65 in pecuniary damages is appropriate.
Non-Pecuniary Compensatory Damages
Complainant claims an amount in the range of $150,000.00 to $200,000.00
would be appropriate for the mental and emotional suffering that she
has experienced because of the agency's action.
There is no precise formula for determining the amount of damages for
non-pecuniary losses, except that the award should reflect the nature and
severity of the harm and the duration or expected duration of the harm.
Loving v. Department of the Treasury, EEOC Appeal No. 01955789 (August 29,
1997); Rountree v. Department of Agriculture, EEOC Appeal No. 01941906
(July 7, 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-Jenkins
v. Department of the Interior, EEOC Appeal No. 01961483 (March 4, 1999).
The record reveals that complainant suffered emotional distress,
depression, anxiety, frustration and humiliation as a result of the
agency's discriminatory conduct. Complainant also suffered symptoms
of lethargy and sleeplessness. Complainant's husband testified that
because complainant's emotional state got �worse and worse,� he had
to physically take care of her in the summer of 2002. He added that
complainant had difficulty performing simple tasks, such as picking
out her clothes and doing laundry, due to her depression over the
incidents at work. Complainant's physician also testified how the
agency's action exacerbated complainant's pre-existent mental condition.
The Commission finds that the AJ's award of $24,000.00 in non-pecuniary
damages was appropriate. Several Commission decisions have addressed
compensatory damages in cases similar to complainant's. See Terrell
v. Department of Housing and Urban Development, EEOC Appeal No. 01943844
(October 25, 1996) ($25,000 awarded for emotional harm, where many
aggravating factors not related to discrimination were also present);
Smith v. Department of Defense, EEOC Appeal No. 01943844 (May 9, 1996)
($25,000 awarded for emotional harm, where many aggravating factors not
related to discrimination were also present); Hatchett v. United States
Postal Service, EEOC Appeal No. 01964256 (October 1,1996) ($20,000
awarded for anger, suspicion, and withdrawal from family and friends,
and exacerbation of pre-existing anxiety and depression).
The amount of $24,000.00 takes into account the severity and the
duration of the harm done to complainant<6>, as well as the fact that
some of complainant's symptoms were unrelated to the agency's actions
and were related to complainant's pre-existing condition. The record
demonstrates that complainant suffered from stress/depression since 1987,
due to the death of her niece. This amount further 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. Department of the Interior, EEOC
Appeal No. 01961483 (March 4, 1999) (citing Cygnar v. City of Chicago,
865 F. 2d 827, 848 (7th Cir. 1989)). Therefore, we conclude that the AJ
appropriately awarded complainant $24,000.00, because it is adequate, and
not excessive, to compensate complainant for her emotional distress.
Attorney's fees
The agency is required to award attorney's fees for the successful
processing of an EEO complaint in accordance with existing case law
and regulatory standards. Bernard v. Department of Veterans Affairs,
EEOC Case No. 01966861 (July 17, 1998). Attorney's fees are computed by
determining the lodestar, i.e., the number of hours reasonably expended
multiplied by a reasonable hourly rate. 29 C.F.R. � 1614.501 (e) (2)
(ii)(B); Equal Employment Opportunity Commission Management Directive
(MD) 110 at 11-5 (rev. Nov. 9, 1999), citing Hensley v. Eckerhart,
461 U.S. 424, 434 (1983). All hours reasonably spent in processing the
complaint are compensable, and the number of hours should not include
excessive, redundant or otherwise unnecessary expenditures of time.
MD 110 at 11-5, citing Hensley, supra. A reasonable hourly rate is
based on prevailing market rates in the relevant community for attorneys
of similar experience in similar cases. MD-110 at 11-6, citing Cooley
v. Department of Affairs, EEOC Request No. 05960748 (July 30, 1998).
The Commission has held that one method of addressing the appropriate
amount of attorney's fees when a complainant is not completely successful
is to take a percentage across-the-board reduction of compensable
time billed. Blinick v. Department of Housing and Urban Development,
EEOC Appeal No. 07A20079 (February 3, 2004). Even if complainant
did not prevail on every aspect of her complaint, that does not, in
itself, justify a reduction in the hours expended where the successful
and unsuccessful claims are closely intertwined. Id. �Claims are
fractionable or unrelated when they involve distinctly different claims
for relief that are based on different facts and legal theories.� Id.
Complainant requested attorney's fees related to the 689.7202 hours
of professional legal services rendered by her lawyer, at counsel's
regular billing rate of $350.00, for the period July 24, 2002, through
December 22, 2004, for the total amount of $241,402.07. Complainant also
requested attorney's fees related to the 245.0282 hours of professional
services rendered by a Legal Assistant, at the regular hourly billing
rate of $90.00, for the period August 7, 2002, through December 31,
2004, for the total amount of $22,052.54. In conclusion, complainant
requested a total amount of $263,454.61 in attorney's fees. In addition,
complainant requested $4,598.00 for legal costs and expenses associated
with the litigation of the case.
The AJ found that some of the hours charged were for work performed
that clearly predated complainant's successful claims. Therefore,
the AJ reduced the hours accordingly and determined that complainant's
counsel should be reimbursed, at the hourly rate of $350.00, for 683.338
hours of work (total amount of $239,168.30). The AJ also determined
that counsel's legal assistant should be reimbursed, at the hourly
rate of $90.00, for 239.17 hours of work (total amount of $21,525.30).
Moreover, the AJ further found that complainant should only be entitled to
reimbursement for the work performed by her attorney and legal assistant
on the successful claims. As a result, the AJ reduced the time charges
to one third, or thirty-three percent (33%) of the fees requested.
The AJ concluded that complainant was entitled to attorney's fees
totaling $78,926.00. Finally, the AJ awarded complainant $4,598.00 for
costs and expenses.
On appeal, complainant asserts that she is entitled to an award
of attorney's fees greater than the amount which the AJ awarded.
Complainant contends that the AJ inappropriately and unreasonably made
an across-the-board reduction based on complainant's four unsuccessful
claims. Specifically, complainant alleged that the issues in her
complaint �were inextricably intertwined.� She alleged that all of
the issues in her complaint involved the same position, i.e., Manager,
Dispute Resolution, EAS-19, from which she was involuntarily reassigned
and that the agency created artificial barriers to prevent her from
attending the EEO training course required for the position.
The Commission finds that the record does not support a finding that the
claims were so closely intertwined that there cannot be a reduction of
attorney's fees. Specifically, we find that complainant's allegations
included different claims and involved different legal theories.
Therefore, we agree with the AJ that the award of attorney's fees
should be reduced to reflect the degree of success. Accordingly, since
complainant was only successful on two of her claims, we find that the
AJ's across-the-board-reduction to thirty-three (33%) percentage is
appropriate. However, we find that the AJ erred in her calculations.
Applying the reduction to 33% of the total amount awarded by the AJ
($260,693.60), we find that the proper amount is $86,028.88. Therefore,
we find that complainant is entitled to $86,028.88 in attorney's fees.
CONCLUSION
Based on the foregoing, the Commission finds that the AJ's finding of
fact are supported by substantial evidence. The Commission also finds
that the AJ's decision summarized the relevant facts and referenced the
appropriate regulations, policies, and laws. After a careful review
of the record, including agency's arguments on appeal, complainant's
response, and evidence not specifically discussed in this decision,
the Commission AFFIRMS the agency's final order which adopted the AJ's
finding of no discrimination with regard to claims (1-4) and the AJ's
finding of reprisal discrimination in claims (5) and (6). The agency
is ordered to take remedial actions in accordance with this decision
and the ORDER below.
ORDER (D0403)
Within 30 days of the date this decision becomes final, and to the extent
that it has not already done so, the agency shall provide complainant
with the following relief;
The agency shall allow complainant to attend the next EEO Dispute
Resolution Specialist training session offered by the agency, and shall
allow her to travel by car, train or any other mode of transportation,
to such training:
The agency shall reassign complainant to the position of Manager,
Dispute Resolution; if complainant has not yet received the requisite
training at this point, she shall be allowed to perform collateral and
administrative duties, but not counseling duties, until she is certified,
at which point she shall be permanently placed back into the position;
The agency shall restore the leave complainant used in August and
September 2002, as a result of the retaliation she experienced;
Pay compensatory damages to complainant in the amount of $30,038.65;
Pay attorney's fees in the amount of $86,028.88;
Pay $4,598.00 for costs and expenses;
Provide EEO training to all responsible management officials regarding
their obligations under Title VII of the Civil Rights Act of 1964
(Title VII), as amended, 42 U.S.C. � 2000e et seq.; and
The agency shall 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
to the compliance officer. If the agency decides 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 employ, 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." The report shall include supporting documentation of the
agency's that the corrective action has been implemented.
POSTING ORDER (G0900)
The agency is ordered to post at its South Jersey postal 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.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0501)
Compliance with the Commission's corrective action is mandatory.
The agency shall submit its compliance report within thirty (30)
calendar days of the completion of all ordered corrective action. The
report shall be submitted to the Compliance Officer, Office of Federal
Operations, Equal Employment Opportunity Commission, P.O. Box 19848,
Washington, D.C. 20036. The agency's report must contain supporting
documentation, and the agency must send a copy of all submissions to
the complainant. If the agency does not comply with the Commission's
order, the complainant may petition the Commission for enforcement
of the order. 29 C.F.R. � 1614.503(a). The complainant also has the
right to file a civil action to enforce compliance with the Commission's
order prior to or following an administrative petition for enforcement.
See 29 C.F.R. �� 1614.407, 1614.408, and 29 C.F.R. � 1614.503(g).
Alternatively, the complainant has the right to file a civil action on
the underlying complaint in accordance with the paragraph below entitled
"Right to File A Civil Action." 29 C.F.R. �� 1614.407 and 1614.408.
A civil action for enforcement or a civil action on the underlying
complaint is subject to the deadline stated in 42 U.S.C. 2000e-16(c)
(1994 & Supp. IV 1999). If the complainant files a civil action, the
administrative processing of the complaint, including any petition for
enforcement, will be terminated. See 29 C.F.R. � 1614.409.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
The Commission may, in its discretion, reconsider the decision in this
case if the complainant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. The appellate decision involved a clearly erroneous interpretation
of material fact or law; or
2. The appellate decision will have a substantial impact on the policies,
practices, or operations of the agency.
Requests to reconsider, with supporting statement or brief, must be filed
with the Office of Federal Operations (OFO) within thirty (30) calendar
days of receipt of this decision or within twenty (20) calendar days of
receipt of another party's timely request for reconsideration. See 29
C.F.R. � 1614.405; Equal Employment Opportunity Management Directive for
29 C.F.R. Part 1614 (EEO MD-110), 9-18 (November 9, 1999). All requests
and arguments must be submitted to the Director, Office of Federal
Operations, Equal Employment Opportunity Commission, P.O. Box 19848,
Washington, D.C. 20036. In the absence of a legible postmark, the
request to reconsider shall be deemed timely filed if it is received by
mail within five days of the expiration of the applicable filing period.
See 29 C.F.R. � 1614.604. The request or opposition must also include
proof of service on the other party.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely, unless extenuating circumstances
prevented the timely filing of the request. Any supporting documentation
must be submitted with your request for reconsideration. The Commission
will consider requests for reconsideration filed after the deadline only
in very limited circumstances. See 29 C.F.R. � 1614.604(c).
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (T0900)
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 (Z1199)
If you decide to file a civil action, and if you do not have or cannot
afford the services of an attorney, you may request that the Court appoint
an attorney to represent you and that the Court permit you to file the
action without payment of fees, costs, or other security. See Title VII
of the Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e et seq.;
the Rehabilitation Act of 1973, as amended, 29 U.S.C. �� 791, 794(c).
The grant or denial of the request is within the sole discretion of
the Court. Filing a request for an attorney does not extend your time
in which to file a civil action. Both the request and the civil action
must be filed within the time limits as stated in the paragraph above
("Right to File A Civil Action").
FOR THE COMMISSION:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
December 19, 2005
__________________
Date
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days after it was mailed. I certify
that this decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
__________________
Date
______________________________
Equal Opportunity Assistan1The training requirement was implemented as
a direct result of the revisions of the EEOC's regulations, which went
into effect on November 9, 1999 and were highlighted in the EEOC's EEO
Management Directive-110 (MD-110).
2Based on the record, the exact nature of the error is unclear, however,
neither party disputes that the discrepancy in complainant's salary was
properly adjusted.
3Complainant's e-mail stated: �Would you submit my name? Although we're
not committing to the place and time (I won't fly or travel 15 hours to
Norman, nor do I need to attend the REDRESS portion), it's probably a
good idea to get a slot now and deal with the rest later. What do you
think?�
4In her May 24, 2004, �Prehearing Statement,� complainant withdrew
entirely the bases of race and national origin, and limited her allegation
of sex discrimination to claims (1), (2), and (6).
5The agency did not challenge the AJ's finding of discrimination in claims
5 and 6, and therefore, we will not address this matter further herein.
6We point out that complainant is entitled to non-pecuniary damages only
for the AJ's finding of reprisal discrimination in claims (5) and (6).