[Redacted], Jane H., 1 Complainant,v.Frank Kendall, Secretary, Department of the Air Force, Agency.

Equal Employment Opportunity Commission

Dec 19, 2022

Appeal No. 2022000355 (E.E.O.C. Dec. 19, 2022)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Jane H.,1 Complainant, v. Frank Kendall, Secretary, Department of the Air Force, Agency. Appeal No. 2022000355 Hearing Nos. 480-2016-00105X, 480-2017-00652X Agency Nos. 5Z1S15002, 5Z1S16003 DECISION On October 20, 2021, Complainant filed an appeal with the Equal Employment Opportunity Commission (EEOC or Commission), pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s September 30, 2021, final decision addressing her entitlement to compensatory damages and attorney’s fees concerning an equal employment opportunity (EEO) complaint alleging 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. For the following reasons, the Commission AFFIRMS the Agency’s final order. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Range Scheduler, GS-1101-11 at the Agency’s Vandenberg Air Force Base, 2nd Range Operations Squadron in Santa Barbara County, California. On January 22, 2015, Complainant filed an EEO complaint (Agency No. 5Z1S15002) alleging that the Agency discriminated against her and subjected her to a hostile work environment on the bases of sex (female) and in reprisal for prior protected EEO activity when: 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. 2022000355 2 1. From January 5-12, 2015, Complainant was told to submit a leave request to meet with the EEO Counselor and other requests to conduct union business were denied; 2. On January 22, 2015, when a colleague (C1) sent an email to the office stating that Complainant was incorrect about an office procedure, and Complainant’s supervisor followed with an office-wide email thanking him; 3. In July 2010, a colleague (C2) accessed and altered Complainant’s work while Complainant was on leave and continued to do so until a supervisor told him to stop; 4. From September 2010 through January 2015, multiple incidents occurred in the office, which targeted Complainant, including: a) comments written on the sign- out board next to her name; b) her name tag on the sign-out board was erased and rewritten with fictitious locations; c) messages on her telephone answering machine were deleted; d) her computer software folder was intentionally deleted; e) her printer was unplugged; f) her monitors were turned off; g) multiple errors were created on her forecast while she was on temporary duty (TDY); h) coworkers were permitted to examine her leave requests; i) her car was keyed and spit on; j) trash was left in her refrigerator and on top of her desk; k) food was missing from her refrigerator; l) a large trash can and dead bugs were left on her desk; m) items from her desk were moved or disappeared; n) her desk chair was moved and left in the hallway; o) copies of a workplace bullying memorandum put up by Complainant were taken down; p) her work errors were made known to the office when those of others were not; and q) and coworkers asked Complainant’s first level supervisor (S1) about Complainant’s whereabouts during the day; 5. From September 2010 through January 2015, management officials failed to prevent the incidents described in claim 2 and similar incidents despite having been informed by Complainant that these incidents were occurring; 6. On September 12, 2010, Complainant’s name was removed from a work assignment without explanation, and she was not allotted the scheduled overtime work or pay; 7. In April 2011, the Lead Range Scheduler modified Maintenance and Operations Control Center (MOCC) slides and sent them to several office personnel; 8. On January 31, 2012, Complainant’s entire office was notified that Complainant would be moved to another position before Complainant was informed about the move; 9. In May 2011, many of Complainant’s computer files were lost when Complainant migrated to Windows 7; 10. From 2010 to 2012, S1 and his supervisor failed to adequately discipline C2 for or prevent C2 from sending out an email to other coworkers discussing alleged errors in Complainant’s work; 11. On November 30, 2011, C2 got angry at Complainant for working on forecast requests while he was on leave; 12. On approximately December 31, 2014, Complainant’s quarterly performance review contained negative comments; 2022000355 3 13. On December 3-5, 2014, and on multiple prior occasions, management failed to prevent C2 from verbally attacking (scolding, belittling, reprimanding) and embarrassing Complainant in the workplace; 14. From March 28, 2016 through June 3, 2016, Complainant found multiple derogatory and anti-female union representative articles posted on the breakroom bulletin boards, and management failed to address the discriminatory actions; 15. On April 13, 2016, C2 entered Complainant’s work area and repeatedly made loud pounding noises on the shredder bins causing Complainant to have a panic attack and seek medical attention; 16. On April 19, 2015, the office television in Complainant’s work area was turned off permanently by management in an effort to dissuade C2 from intentionally loitering in the vicinity of Complainant’s workspace to cause her emotional distress; 17. C1 showed animosity towards Complainant and her union activities; and 18. On April 26, 2016, management told Complainant to work from an alternate duty location on April 29, 2016, in order to avoid C1 and prevent a hostile incident. Complainant filed a second EEO complaint (Agency No. 5Z1S16003) alleging that the Agency subjected her to reprisal for engaging in prior protected EEO activity when: 19. On May 20, 2016, S1 responded to Complainant’s request for union time by stating, “I am doing everything I can to support you, but it’s just not good enough. [The Chief of Scheduling] and I were both thrown under the bus due to your EEO complaint. If I don’t give you time, you’re just going to file a grievance.” The two complaints were subsequently consolidated In Jane H. v. Dep’t of the Air Force, EEOC Appeal No. 2020003198 (May 19, 2021), the Commission affirmed the Agency’s final order implementing an Equal Employment Opportunity Commission Administrative Judge’s (AJ) decision finding that Complainant was not subjected to discrimination or a hostile work environment with regard to Claims (1)-(18); however, the final order regarding Claim (19) was reversed with a finding that Complainant was subjected to reprisal. Among other remedies, the Commission remanded the matter to the Agency for a supplemental investigation into Complainant’s entitlement to compensatory damages and attorney’s fees. Complainant submitted a verified fees petition on July 27, 2021. Therein, Complainant sought $102,663.72 in attorney’s fees for work performed between September 19, 2017, and July 26, 2021. A review of the fee petition reveals that Complainant’s attorney used generalized terms to describe time devoted to the instant case. In September 2017, the attorney discussed the case with Complainant, reviewed the Reports of Investigation and EEOC orders. In October 2017, the attorney discussed settlement with the Agency, communicated with Complainant, drafted discovery requests, and reviewed discovery documents. The billing entries have similar detail, or rather lack thereof, throughout the remainder of 2017. In November 2017, the attorney continued to review discovery responses, communicated with Complainant, and discussed settlement. In December 2017, the attorney worked on Complainant’s deposition, which was taken on December 14, 2017, and further discussed settlement with the Agency. 2022000355 4 The month of January 2018, appears to be dedicated to pleadings before the EEOC AJ and responding to the Agency’s motion for summary judgment. Prior to the AJ’s decision granting summary judgment to the Agency, Complainant’s attorney indicates that, in four days in May 2020, she “drafted appeal brief.” After the decision, the attorney “drafted OFO appeal” between October 13, 2020, and November 4, 2020. Following the Commission decision modifying the Agency’s final decision on May 19, 2021, the attorney indicates she spent time thereafter assisting her client with the damages portion of the case and drafting the fee petition. As to compensatory damages, Complainant testified that she suffered significant mental and physical harm as a result of S1’s actions in Claim (19). Complainant asserts that she suffered from anxiety, panic attacks, and high blood pressure. Complainant became depressed and was unable to think clearly or concentrate on work. Complainant asserted that the day after her supervisor commented that nothing he did was good enough for Complainant due to her EEO case, Complainant left work and has not been able to return to her job. Complainant provided a doctor’s note dated June 27, 2016, which states that Complainant “has extreme stress due to very hostile work environment, needs to be placed on workman’s comp.” In addition to compensatory damages, Complainant requested $451,430 in lost wages and reimbursement of $5,745 in medical expenses. The Agency issued its final decision on damages and attorney’s fees on September 30, 2021. Therein, the Agency awarded Complainant $10,000 in attorney’s fees and $7,500 in compensatory damages. Regarding compensatory damages, the Agency noted that Complainant did not succeed on any claim of constructive discharge and that her only successful claim was “a solitary retaliatory comment.” The Agency concluded that Complainant provided little evidence to prove that the harm she suffered was a result of her successful claim. The Agency also concluded that Complainant did not demonstrate that she sought to mitigate her lost wages or that her medical expenses were connected to her successful claim. On attorney’s fees, the Agency conceded that Complainant was entitled to a reasonable award of attorney’s fees and further conceded “that Complainant’s Representative probably did justifiably incur the $102,663.72 that they ask for in their entire claim. However, the Agency won 94.74 percent of her claims” and further determined that the fee petition failed to differentiate between the successful claim and the unsuccessful claims. Therefore, the Agency believed that $10,000 in attorney’s fees was appropriate. CONTENTIONS ON APPEAL On appeal, Complainant takes issue with the Agency’s final decision on both attorney’s fees and compensatory damages. As to attorney’s fees, Complainant emphasizes that the Agency conceded that Complainant justifiably incurred the attorney’s fees and argues that the Agency’s across-the- board reduction was improper, and that the Agency excluded work performed on Complainant’s 2022000355 5 appeal, the damages investigation, and during discovery. Complainant argues, without elaboration, that without the investigation and discovery, Complainant would not have received $7,500 in compensatory damages. Complainant concludes that the Agency’s 94.74 percent reduction is excessive and requests further attorney’s fees for processing of the instant appeal. As to compensatory damages, Complainant argues that $50,000 in compensatory damages is not excessive and is appropriate for the harm she suffered, and points to her medical documentation and testimony. Complainant argues that she is entitled to reimbursement for medical expenses based on the medical documentation and testimony she provides. Complainant also contests, without analysis, the Agency’s refusal to award her back pay damages. The Agency maintains that Complainant is not entitled to the entire amount of attorney’s fees requested because she did not prevail on all of her claims. Further, the Agency contends that while Complainant provided evidence to support damages, her request for $50,000 in compensatory damages is not supported by the evidence. ANALYSIS AND FINDINGS As an initial matter, we address Complainant’s request for lost wages, or back pay. Complainant succeeded on a claim that her supervisor made a comment regarding Complainant’s use of the EEO process that constituted retaliation because it was the kind of statement that would deter an employee from participating in the EEO process. Our decision found that Complainant was not otherwise subjected to discrimination or a hostile work environment. Further, Complainant did not raise a claim of constructive discharge, forced retirement, or any other allegation that she was discriminated against in a way that reduced her income.2 Furthermore, the Commission's previous decision did not award Complainant back pay. If Complainant believed that the Commission's prior decision improperly limited her ability to recover damages, Complainant could have filed a request for reconsideration with the Commission to address that matter. See 29 C.F.R. § 1614.405(c). Complainant did not do so. Accordingly, she is not entitled to back pay. Attorney’s Fees The Commission’s regulations require federal agencies to award attorney’s fees and costs for the successful processing of an EEO complaint in accordance with existing case law and regulatory standards. 29 C.F.R. § 1614.501(e)(1)(ii). Attorney’s fees are calculated by determining the lodestar, which consists of the number of hours reasonably expended multiplied by a reasonable hourly rate. All hours reasonably spent to process the complaint are compensable; however, the number of hours should not include excessive, redundant, or otherwise unnecessary expenditures of time. Attorney’s fees are also not recoverable for work on unsuccessful claims. Blum v. Stenson, 465 U.S. 886 (1984); and Hensley v. Eckerhart, 461 U.S. 424 (1983). 2 For instance, Complainant did not allege that she was suspended without pay, demoted, or otherwise suffered a reduced paycheck. 2022000355 6 The parties agree on the attorney’s requested hourly rate. In her verified fees petition, Complainant argues that she is entitled to the full amount of attorney’s fees requested because she “obtained excellent results, warranting a fully compensable fee.” We disagree. Complainant did not succeed on her claim of a hostile work environment. This very fact is sufficient to render her claim less than “fully compensable.” The issue then becomes to what degree was Complainant successful, and what portion of Complainant’s verified fee petition can be attributed to that success. We note that 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. Dep’t of Hous. and Urban Dev., EEOC Appeal No. 07A20079 (Feb. 3, 2004). Even if a complainant did not prevail on every aspect of his or 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. Following this method, we cannot find the Agency’s award is in error. While Complainant focuses on the Agency’s argument that she succeeded on only 5.26 percent of her claims, we note that the Agency awarded Complainant more than 5.26 percent of her request for attorney’s fees. If we multiply Complainant’s request for $102,663.72 in attorney’s fees by 5.26 percent, we arrive at a result of $5,400.11. The Agency awarded $10,000, nearly double that amount. Further, we note that a verified fees petition must be sufficiently detailed so as to permit the fact- finder to properly attribute work performed for successful claims and discount work performed for unsuccessful claims. As noted above, Complainant’s fee petition lists broadly generic billable entries that appear to encompass the entirety of Complainant’s allegations. As such, we cannot determine whether any particular entry corresponds to Complainant’s single successful claim. We also address Complainant’s argument that the Agency’s concession that she “probably did justifiably incur” the attorney time expended on her case translates to a concession that she deserves the full amount of fees requested. It appears that the Agency was commenting that the attorney probably did expend the stated amount on all the claims, both unsuccessful and successful, not that she was entitled to fees for work expended on the unsuccessful claims. On these facts, we find no reason to disturb the Agency’s award of attorney’s fees. Similarly, Complainant did not provide evidence to demonstrate that she incurred costs as a result of Claim (19). Pecuniary Compensatory Damages Pecuniary losses are out-of-pocket expenses incurred because of the agency's unlawful action, including job-hunting expenses, moving expenses, medical expenses, psychiatric expenses, physical therapy expenses, and other quantifiable out-of-pocket expenses. 2022000355 7 Past pecuniary losses are losses incurred prior to the resolution of a complaint through a finding of discrimination, or a voluntary settlement. EEO MD-110, at Chap. 11, VII.B.2 (internal citations omitted). Future pecuniary damages are losses likely to occur after the resolution of the complaint. In a claim for pecuniary, compensatory damages, a complainant must demonstrate, through appropriate evidence and documentation, the harm suffered because of the agency's discriminatory action. Objective evidence in support of a claim for pecuniary damages includes documentation showing actual out-of-pocket expenses with an explanation of the expenditure. The Agency is only responsible for those damages that are clearly shown to be caused by the Agency's discriminatory conduct. To recover damages, a complainant must prove that the employer's discriminatory actions were the cause of the pecuniary loss. Id. (citations omitted). In this case, we find that Complainant did not persuasively establish that the Agency's retaliatory actions were the cause of her claimed expenses. Complainant requested $5,745 in medical expenses. A submitted July 2016 medical note indicates that Complainant has been medicated since 2010 for stress and will require continued medication and therapy. Another June 2016 note stated that Complainant has experienced “extreme stress due to very hostile work environment.” Complainant further submitted copies of various receipts for medication and medical visits. We find that Complainant has presented no evidence linking any medical expenses to S1’s retaliatory comment, the claim upon which Complainant prevailed. As a result, we agree with the Agency that Complainant is not entitled to pecuniary compensatory damages. Non-Pecuniary Compensatory Damages Non-pecuniary losses are losses that are not subject to precise quantification, i.e., emotional pain, suffering, inconvenience, mental anguish, loss of enjoyment of life, injury to professional standing, injury to character and reputation, injury to credit standing, and loss of health. See Enforcement Guidance on Compensatory and Punitive Damages Available Under Section 102 of the Civil Rights Act of 1991, EEOC Notice No. 915.302 at 10 (July 14, 1992). 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. See Loving v. Dep’t of the Treasury, EEOC Appeal No. 01955789 (Aug. 29, 1997). The Commission notes that non-pecuniary compensatory damages are designed to remedy the harm caused by the discriminatory event rather than to punish the agency for the discriminatory action. Furthermore, compensatory damages should not be motivated by passion or prejudice, or be “monstrously excessive” standing alone, but should be consistent with the amounts awarded in similar cases. See Ward-Jenkins v. Dep't of the Interior, EEOC Appeal No. 01961483 (Mar. 4, 1999). Evidence from a health care provider or other expert is not a mandatory prerequisite for recovery of compensatory damages for emotional harm. See Lawrence v. U.S. Postal Serv., EEOC Appeal No. 01952288 (Apr. 18, 1996) (citing Carle v. Dep’t of the Navy, EEOC Appeal No. 01922369 (Jan. 5, 1993)). 2022000355 8 Objective evidence of compensatory damages can include statements from complainant concerning his emotional pain or suffering, inconvenience, mental anguish, loss of enjoyment of life, injury to professional standing, injury to character or reputation, injury to credit standing, loss of health, and any other non-pecuniary losses that are incurred as a result of the discriminatory conduct. Id. In this case, Complainant provided testimony on her own behalf and limited medical documentation attesting to emotional distress. However, the medical documentation explains that Complainant was suffering emotional distress as a result of a hostile work environment. Our previous decision did not find a hostile work environment in Complainant’s favor. Moreover, Complainant did not provide corroborating testimony. After considering awards in similar cases and all of the relevant factors discussed above, we agree that an award of $7,500 is appropriate and takes into account the nature, severity, and duration of Complainant's suffering. We find that this award is consistent with other non-pecuniary compensatory damages awards given in similar cases and is not “monstrously excessive” standing alone or derived from passion or prejudice. See Gaye A. v. Dep’t of Def., EEOC Appeal No. 2019005924 (May 21, 2020) ($5,000 awarded where complainant prevailed on allegation that her supervisor made retaliatory comment, but sparse evidence of harm); Colene M. v. Dep’t of Veterans Affairs, EEOC Appeal No. 2019005810 (July 19, 2021) ($5,168 awarded after complainant testified that she experienced social isolation, strained relationships, insomnia, heart palpitations, hair loss, and thoughts of suicide, and had supporting testimony from her spouse and coworkers); Hermila B. v. Dep’t of Veterans Affairs, EEOC Appeal No. 0120171916 (Feb. 7, 2019) ($7,000 awarded where complainant testified she experienced stress, anxiety, strain in her personal relationships, isolation, and workplace fear). CONCLUSION Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we AFFIRM the Agency’s final decision on attorney’s fees, compensatory damages, and costs. We REMAND the matter for further action in accordance with this decision and the ORDER below. 2022000355 9 ORDER To the extent that it has not already done so, within 60 days of the date this decision is issued, the Agency shall pay Complainant $10,000 in attorney’s fees and $7,500 in compensatory damages. 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. IMPLEMENTATION OF THE COMMISSION’S DECISION (K0719) Under 29 C.F.R. § 1614.405(c) and §1614.502, compliance with the Commission’s corrective action is mandatory. Within seven (7) calendar days of the completion of each ordered corrective action, the Agency shall submit via the Federal Sector EEO Portal (FedSEP) supporting documents in the digital format required by the Commission, referencing the compliance docket number under which compliance was being monitored. Once all compliance is complete, the Agency shall submit via FedSEP a final compliance report in the digital format required by the Commission. See 29 C.F.R. § 1614.403(g). The Agency’s final report must contain supporting documentation when previously not uploaded, and the Agency must send a copy of all submissions to the Complainant and his/her representative. 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. Failure by an agency to either file a compliance report or implement any of the orders set forth in this decision, without good cause shown, may result in the referral of this matter to the Office of Special Counsel pursuant to 29 C.F.R. § 1614.503(f) for enforcement by that agency. STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0920) The Commission may, in its discretion, reconsider this appellate decision if Complainant or the Agency submits a written request that contains arguments or evidence that tend to establish that: 1. The appellate decision involved a clearly erroneous interpretation of material fact or law; or 2022000355 10 2. The appellate decision will have a substantial impact on the policies, practices, or operations of the agency. Requests for reconsideration must be filed with EEOC’s Office of Federal Operations (OFO) within thirty (30) calendar days of receipt of this decision. If the party requesting reconsideration elects to file a statement or brief in support of the request, that statement or brief must be filed together with the request for reconsideration. A party shall have twenty (20) calendar days from receipt of another party’s request for reconsideration within which to submit a brief or statement in opposition. 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). Complainant should submit his or her request for reconsideration, and any statement or brief in support of his or her request, via the EEOC Public Portal, which can be found at https://publicportal.eeoc.gov/Portal/Login.aspx. Alternatively, Complainant can submit his or her request and arguments to the Director, Office of Federal Operations, Equal Employment Opportunity Commission, via regular mail addressed to P.O. Box 77960, Washington, DC 20013, or by certified mail addressed to 131 M Street, NE, Washington, DC 20507. In the absence of a legible postmark, a complainant’s request to reconsider shall be deemed timely filed if OFO receives it by mail within five days of the expiration of the applicable filing period. See 29 C.F.R. § 1614.604. An agency’s request for reconsideration must be submitted in digital format via the EEOC’s Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). Either party’s request and/or statement or brief in opposition must also include proof of service on the other party, unless Complainant files his or her request via the EEOC Public Portal, in which case no proof of service is required. Failure to file within the 30-day time period will result in dismissal of the party’s request for reconsideration as untimely, unless extenuating circumstances prevented the timely filing of the request. Any supporting documentation must be submitted together with the request for reconsideration. The Commission will consider requests for reconsideration filed after the deadline only in very limited circumstances. See 29 C.F.R. § 1614.604(c). COMPLAINANT’S RIGHT TO FILE A CIVIL ACTION (R0610) This is a decision requiring the Agency to continue its administrative processing of your complaint. However, if you wish to file a civil action, you have the right to file such action in an appropriate United States District Court within ninety (90) calendar days from the date that you receive this decision. In the alternative, you may file a civil action after one hundred and eighty (180) calendar days of the date you filed your complaint with the Agency, or filed your appeal with the Commission. If you file a civil action, you must name as the defendant in the complaint the person who is the official Agency head or department head, identifying that person by his or her full name and official title. 2022000355 11 Failure to do so may result in the dismissal of your case in court. “Agency” or “department” means the national organization, and not the local office, facility, or department in which you work. Filing a civil action will terminate the administrative processing of your complaint. RIGHT TO REQUEST COUNSEL (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 December 19, 2022 Date