Samuel S. Mohr, Jr., Complainant,v.R. James Nicholson, Secretary, Department of Veterans Affairs, Agency.

Equal Employment Opportunity CommissionFeb 23, 2007
0720050057 (E.E.O.C. Feb. 23, 2007)

0720050057

02-23-2007

Samuel S. Mohr, Jr., Complainant, v. R. James Nicholson, Secretary, Department of Veterans Affairs, Agency.


Samuel S. Mohr, Jr.,

Complainant,

v.

R. James Nicholson,

Secretary,

Department of Veterans Affairs,

Agency.

Appeal No. 07200500571

Agency No. 200H-0542-2003101481

Hearing No. 170-2004-00122X

DECISION

Following its March 17, 2005 final order, the agency filed a timely

appeal which the Commission accepts pursuant to 29 C.F.R. � 1614.405(a).

On appeal, the agency requests that the Commission affirm its rejection

of the relief ordered by the AJ.

During the relevant time, complainant was employed as a Registered

Nurse, at the agency's Specialty Care Clinic, Veterans Affairs Medical

Center in Coatesville, Pennsylvania. On February 27, 2003, complainant

filed a formal complaint. Therein, complainant claimed that he was the

victim of unlawful employment discrimination on the bases of sex (male)

and disability (back) when:

(1) on December 23, 2002 and January 6 and 22, 2003, he was assigned

heavier workloads than female co-workers and not provided any assistance;

and

(2) on January 23, 2003, his supervisor questioned him regarding his

duties as a registered nurse at another hospital.

On May 28, 2003, complainant requested that his formal complaint be

amended to include an additional claim of unlawful reprisal for prior

protected activity when:

(3) on May 23, 2003, management reassigned him from the Specialty Clinic

to the Primary Care Clinic.

On June 6, 2003, the agency accepted complainant's request to include

the additional claim (claim (3)), and reprisal as a basis.

The record reflects that on August 20, 2002, complainant injured his back

moving a patient, and filed an Office of Workers' Compensation Programs

(OWCP) claim. The record further reflects that complainant's physician

placed him on light duty with a lifting limitation of 20 pounds, that

was subsequently changed to a 10-pound limitation; and no sitting for more

than 4 hours. On May 28, 2003, upon complainant's return to work after an

extended sick leave, he learned that his duties were changed from working

in the Specialty Care Clinic to working in the Primary Care Clinic.

At the conclusion of the investigation, complainant was provided with

a copy of the report of investigation and requested a hearing before an

AJ.

Following a hearing on April 28 and 29, 2004, the AJ issued a bench

decision on May 17, 2004, finding discrimination.

In her bench decision, the AJ found that, in regard to claims (1)

and (2), complainant did not establish a prima facie case of sex

discrimination because he did not demonstrate that similarly situated

employees outside of his protected group were treated differently

under similar circumstances. The AJ further found that complainant

was not aggrieved when he was questioned about his outside employment.

The AJ found no evidence indicating that complainant was forbidden from

continuing with his outside employment, and that he was not disciplined

or reprimanded for having engaged in this employment.

Regarding the basis of disability, the AJ found that complainant did

not show that he is an individual with a disability and that he did

not submit sufficient evidence showing that his medical conditions

substantially limited any major life activity at the time of the

alleged discriminatory events. The AJ further found that as of May

28, 2003, complainant's medical restrictions were lifted and he was

cleared to return to full duty. Furthermore, the AJ determined that

because complainant is not an individual with a disability, the agency

did not have any responsibility to provide reasonable accommodation.

Further, the AJ found that complainant was not subjected to a hostile

work environment.

Regarding claim (3), however, the AJ found that complainant establish

a prima facie case of reprisal discrimination. Specifically, the

AJ determined that the close temporal proximity between management's

knowledge of complainant filing his formal complaint on February 27 2003,

and complainant's reassignment on May 23, 2003, created an inference

of reprisal discrimination. The AJ further found that the agency

articulated legitimate, nondiscriminatory reasons for its actions.

However, the AJ went on to determine that complainant had shown, by a

preponderance of the evidence, that the agency's articulated reasons

for transferring him upon his return from extended leave was pretextual.

The AJ primarily drew this conclusion based on her determination that the

Nurse Manager was not a credible witness. The Nurse Manager's testimony

was proffered by the agency to prove that there had been long-term plans

to eliminate a full-time RN position from the Specialty Care Clinic,

plans which had been formulated before complainant engaged in protected

EEO activity. The AJ found that the veracity of this testimony was

called into question because the Nurse Manager was reported by the EEO

Counselor in her report to have previously stated: "if the aggrieved

employee feels that he is being assigned more work than the nurses in

the Primary Care Clinic, [then] she is sure that she could get another

RN more willing to take his position in Specialty Care...she would have

no problem assigning aggrieved employee to Primary Care if he feels they

are being given less of a workload." The AJ also found that there was no

independent support the Nurse Manager's testimony at the hearing because

neither the Nurse Manager nor the Clinical Manager mentioned to the EEO

Counselor that there were any plans they had with each other or with

complainant about removing the full-time RN position from the Specialty

Care Clinic. The AJ concluded that she discounted the credibility of

the Nurse Manager and Clinic Manager that they had been making plans and

having such conversations for some time. The AJ concluded that instead,

more likely than not, complainant was transferred from Specialty Care

Clinic to Primary Care because he filed a formal complaint concerning his

heavy workload, and that "instead of attempting to resolve the matter"

by trying to give complainant more assistance in the Specialty Care Clinic

"management retaliated by transferring him."

The AJ then conducted a hearing on August 4 and 5, 2004, concerning

complainant's claim for compensatory damages. The AJ found that following

his reassignment, complainant suffered anxiety, depression, humiliation,

sleep deprivation and began a medication regimen which included Lexapro,

Paxil, Ambien, Wellbutrin, and Excel. Complainant testified that even

at the time of the hearing, he still suffered from crying spells, saw

no relief in sight, and had withdrawn socially from friends and family.

Complainant's wife corroborated complainant's testimony and reported

complainant suffered from depression, anxiety and that he was no longer

the confident person he had once been. Complainant submitted medical

records from his physicians, and noted that he had been diagnosed with

an depression and anxiety disorder. Upon review of the testimony and

medical records, the AJ found complainant established a link between

his reassignment and hostile work environment claims and the resulting

emotional distress. Specifically, the AJ found complainant suffered from

major depression and anxiety; panic attacks; initial suicidal thoughts;

chronic diarrhea; aggravation of irritable bowel syndrome; embarrassment;

humiliation; nervousness; fear of losing his job; fear of his supervisors;

loss of material relations and harmony; interference with family

and friends relationships; sleep disturbances; anger; stress; weight

fluctuations; low self-esteem/sense of worth; loss of career satisfaction;

loss of leadership opportunity; and program management opportunities.

The AJ awarded complainant $65,000.00 in non-pecuniary damages and

$5,888.05 in pecuniary damages to compensate him for the discrimination.

As for the remaining remedy, the AJ ordered the agency to transfer

complainant back into his position as a Nurse in the Specialist Care

Clinic within 30 days of receipt of her decision on damages.

On June 16, 2004, in response to a request by the AJ, complainant's

attorney submitted a Verified Schedule of Fees and Costs with supporting

documentation of affidavits, verification and itemized statement.

Therein, the attorney requested a total award of $106,651.18 in attorney's

fees and $1,861.75 in legal costs. Specifically, the attorney stated that

he spent 283.382 hours working on complainant's case at the hourly rate

of $350.00, for a total of $99,183.70.00. The attorney further stated

that his legal assistant spent 82.972 hours working on complainant's

case at the hourly rate of $90.00 for a total of $7,467.48.

On August 10, 2004, complainant's attorney submitted a Supplemental

Verified Schedule in which he requested supplemental attorney's fees

for the June 10, 2004 - August 5, 2004 time period. Specifically,

the attorney stated that he spent additional 27.081 hours working on

complainant's case at the hourly rate of $350.00 for a total of $9,478.35;

and that his legal assistant spent 21.4123 hours working on the case at

the hourly rate of $90.00 for a total of $1,927.10.

On June 25, 2004 and September 9, 2004, respectively, the agency

filed a response, arguing for reduction in attorney's fees and costs.

The agency argued that complainant's attorney's billing for his work

and that of his legal assistant was duplicative and excessive. However,

the agency did not dispute the attorney's hourly rate and costs.

The AJ issued a document titled "Decision Reducing Request for and

Award Attorney's Fees." Therein, the AJ determined that complainant's

attorney's hourly rate of $325.00 through December 31, 2003, and a

$350.00 hourly rate thereafter were within the reasonable and acceptable

rate of prevailing rates for such services in the Philadelphia,

Pennsylvania legal community. The AJ determined, however, that it was

inappropriate for the attorney to bill at the $350.00 hourly rate for time

expended prior to the time he increased his hourly rate from $325.00.

The AJ further determined that the attorney fees and legal assistant's

fees set forth in the attorney's Verified Schedule of Fees dated June

16, 2004 and August 10, 2004 should be adjusted downward across the

board by 20%. The AJ also found that there should be a reduction in

attorney's fees concerning the unsuccessful claims (claims (1) and (2)),

In light of what the AJ determined was duplicative and excessive billing,

failure of other claims and errors in accounting, the AJ adjusted the

total award of attorney fees and costs to $63,590.98 ($61,676.23 in

attorney's fees and $1,914.75 in total costs). The AJ further directed

the agency to post a notice on all employee bulletin boards stating

that it was found in violation of Title VII and indicating what steps

it would take to assure that it would comply with the law in the future.

The agency issued a final order on March 17, 2005, indicating it was not

contesting the AJ's finding of discriminatory reprisal in the decision

to reassign complainant. However, the agency declined to fully implement

the AJ's award of compensatory damages and attorney's fees.

In its appellate brief, the agency argued that the AJ's award of

compensatory damages and attorney's fees are "excessive and are not

supported by the record." The agency further argued that it does not

dispute that the record in this case supports an award of compensatory

damages for non-pecuniary losses. The agency argued, however, that the

AJ did not assess correctly the extent and duration of the harm suffered

by complainant; that the AJ failed to take into account the fact that

complainant's depression preexisted in the May 2003 reassignment; and

that the AJ did not consider all the stressors identified in the record.

The agency argued that a review of the evidence in the case supports an

award of non-pecuniary damages in the range of $35,000.00 to $45,000.00.

The agency further argued that the AJ's future pecuniary damages should

be reduced because complainant failed to prove that entitlement to future

pecuniary damages. The agency argued that the AJ's conclusion that it

was reasonable to anticipate that complainant would continue psychiatric

treatment for two additional years as a result of the reassignment was

"speculative and not proven to the required degree of certainty."

Finally, with respect to attorney's fees and costs, the agency argued

that the AJ should have reduced the attorney's fee petition by 50% to

account for the work performed on the unsuccessful claims. The agency

argued although the AJ justified the 20% reduction by explaining

that consideration was given to the fact that the retaliation claim

constituted a major portion of complainant's case, her justification was

not consistent with "with the previous observation that at least half

of the time and effort expended in the matter involved the two claims

upon which the complainant did not prevail."

Finally, the agency argued that the AJ improperly awarded the attorney and

legal assistant travel time at the full hourly rate. The agency further

argued that in a previous EEO case, the fees for travel time were reduced

to a hourly rate of one-half of the attorney's normal hourly rate.

The agency argued that because there was no indication in the AJ's

decision that the travel time billed by the attorney and legal assistant

was awarded at one-half of their hourly rates, there should be a reduction

of feels to account for the one-half hourly rate for travel time.

In response, complainant, through his attorney, contends that the AJ's

decision correctly summarized the facts and reached the appropriate

conclusions of law, and should be fully implemented by the agency.

Complainant further contends that the agency "has still not returned the

Complainant to his former position since his May 28, 2003 reassignment

[emphasis added]." Finally, complainant contends that he is entitled to

an award of attorney's fees and costs for work performed by his attorney

in pursuing the instant appeal.

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.

The Commission discerns no basis to disturb the AJ's findings. We find

that the findings of fact are supported by substantial evidence, and that

the AJ correctly applied the appropriate regulations, policies, and laws.

Moreover, we further find that given the specific facts in this case,

the AJ's remedial award is appropriate.

Finally, we note that complainant claims in response to the agency's

appeal that he is entitled to additional attorney's fees for additional

work completed in preparation for this appeal. Because complainant is

successful in obtaining attorney's fees and costs in the instant appeal,

complainant can submit to the agency another fee petition for the costs

incurred during this process, if he had not done so already.

Therefore, after a careful review of the record, the Commission REVERSES

the agency's final order and REMANDS the matter to the agency to take

corrective action in accordance with this decision and the ORDER below.

ORDER

The agency is ordered to take the following remedial action:

1. Within thirty (30) calendar days of the date this decision becomes

final the agency shall reassign complainant back to the Specialty Care

Clinic and the duties he had as a Charge Nurse and Program Manager.

2. Within thirty (30) calendar days of the date this decision becomes

final, the agency shall tender to complainant $65,000.00 in non-pecuniary

compensatory damages, $2,208.05 in pecuniary compensatory damages,

and $3,680.00 in future pecuniary compensatory damages.

3. Within thirty (30) calendar days of the date this decision becomes

final, the agency shall tender to complainant's attorney's fees in the

amount of $61,676.23 and expenses in the amount of $1,914.75.

4. The agency shall post a notice in accordance with the paragraph below.

5. The agency is further directed to submit a report of compliance, as

provided in the statement entitled "Implementation of the Commission's

Decision." The report shall include supporting documentation verifying

that the corrective action has been implemented.

ATTORNEY'S FEES (H0900)

If complainant has been represented by an attorney (as defined by

29 C.F.R. � 1614.501(e)(1)(iii)), he/she is entitled to an award of

reasonable attorney's fees incurred in the processing of the complaint.

29 C.F.R. � 1614.501(e). The award of attorney's fees shall be paid

by the agency. The attorney shall submit a verified statement of fees

to the agency - - not to the Equal Employment Opportunity Commission,

Office of Federal Operations - - within thirty (30) calendar days of

this decision becoming final. The agency shall then process the claim

for attorney's fees in accordance with 29 C.F.R. � 1614.501.

POSTING ORDER (G0900)

The agency is ordered to post at its Veterans Affairs Medical Center in

Coatesville, Pennsylvania, 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

(R0900)

This is a decision requiring the agency to continue its administrative

processing of your complaint. However, if you wish to file a civil

action, you have the right to file such action in an appropriate United

States District Court within ninety (90) calendar days from the date

that you receive this decision. In the alternative, you may file a

civil action after one hundred and eighty (180) calendar days of the date

you filed your complaint with the agency, or filed your appeal with the

Commission. If you file a civil action, you must name as the defendant in

the complaint the person who is the official agency head or department

head, identifying that person by his or her full name and official title.

Failure to do so may result in the dismissal of your case in court.

"Agency" or "department" means the national organization, and not the

local office, facility or department in which you work. Filing a civil

action will terminate the administrative processing of your complaint.

RIGHT TO REQUEST COUNSEL (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

February 23, 2007

__________________

Date

1 Due to a new data system, this case has been re-designated with the

above referenced appeal number.

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2

0720050057

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Office of Federal Operations

P. O. Box 19848

Washington, D.C. 20036

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0720050057

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0720050057