01A21575
09-24-2003
Thomas T. Myers, Complainant, v. R.L. Brownlee, Acting Secretary, Department of the Army, Agency.
Thomas T. Myers v. Department of the Army
01A21575
September 24, 2003
.
Thomas T. Myers,
Complainant,
v.
R.L. Brownlee,
Acting Secretary,
Department of the Army,
Agency.
Appeal No. 01A21575
Agency No. AQFDFO9408E0070
DECISION
Complainant timely initiated an appeal from a final agency decision
concerning damages arising from his 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. The Commission accepts
complainant's appeal pursuant to 29 C.F.R. � 1614.405. Complainant
requests that the Commission award him compensatory damages and attorney's
fees and costs above those awarded by the agency in its decision issued
on December 19, 2001. For the following reasons, the Commission modifies
the agency's final decision on damages, attorney's fees and costs.
The record reveals that during the relevant time, complainant was employed
as a Supervisory Recreation Specialist at the agency's U.S. Army, 20th
Support Group, Camp Hialeah, Taegu, Korea (Camp Hialeah) facility.
On December 13, 1993, complainant learned that his overseas tour
was scheduled to expire on July 25, 1994. Complainant was offered an
additional tour of duty by his supervisor, and on December 15, 1993, he
accepted a two-year additional tour of duty, but on January 20, 1994,
the Deputy Installation Commander (DIC) denied complainant's request
for an additional tour. On January 28, 1994, complainant requested
reconsideration for an additional tour. On April 19, 1994, the DIC's
replacement (new DIC) recommended that complainant's additional tour of
duty be approved, and submitted his recommendation on April 27, 1994.
However, complainant's additional tour was denied for a second time by
an unnamed individual.<1> After two denials and approximately seven
months of delay, complainant's additional tour of duty was approved
on or about July 26, 1994. See Myers v. Department of the Army, EEOC
Appeal No. 01980379 (June 27, 2001).
Complainant sought EEO counseling and subsequently filed a formal
complaint on March 10, 1994 alleging that he was discriminated against
on the bases of race (African-American), color (black), and in reprisal
for prior EEO activity when:
(1) His request for a two-year extension of his overseas tour was denied
twice and delayed seven months; and
He was made the subject of Criminal Investigation Division (CID)
investigations.
Following the EEO investigation, complainant requested that the agency
issue a final decision. In its decision, the agency dismissed claim 2
because the issue was pending before a United States District Court,
and issued a finding of no discrimination regarding claim 1. In the
Commission's decision on appeal, EEOC Appeal No. 01980379, the Commission
affirmed the agency's dismissal of claim 2, but reversed the agency's
decision on claim 1, finding that complainant was discriminated against
on the basis of reprisal when his request for a two-year extension of
his overseas tour was denied twice and delayed seven months.<2> The
Commission remanded the case to the agency to take remedial action
consistent with the Commission's decision. We ordered the agency to
conduct a supplemental investigation to determine whether complainant
was entitled to compensatory damages incurred as a result of the agency's
discriminatory actions. The agency was to allow complainant to present
evidence in support of his compensatory damages claim. Additionally,
as complainant had been represented by attorneys, he was entitled to an
award of reasonable attorney's fees incurred in the processing of the
complaint, which was to be paid by the agency, following the submission
of a verified statement of fees to the agency.<3>
In its December 19, 2001 final decision, the agency awarded complainant
$2,000.00 in non-pecuniary compensatory damages, $9,293.00 in attorney's
fees, and $371.00 for costs. Complainant's claim for pecuniary
compensatory damages and other monetary relief was denied by the agency.
On appeal, complainant contends that he is entitled to $100,000.00 in
non-pecuniary compensatory damages,<4> and $11,338.34 for pecuniary
compensatory damages,<5> in addition to attorney's fees and costs of
$14,586.00. In response, the agency argues that complainant is not
entitled to further relief.
Compensatory Damages
Section 102(a) of the Civil Rights Act of 1991 authorizes an award
of compensatory damages as part of make-whole relief for intentional
discrimination in violation of Title VII. See 42 U.S.C. � 1981a.
Compensatory damages may be awarded for past pecuniary losses, future
pecuniary losses, and non-pecuniary losses which are directly or
proximately caused by the agency's discriminatory conduct. Compensatory
and Punitive Damages Available Under Section 102 of the Civil Rights Act
of 1991, EEOC Notice No. 915.002 (July 14, 1992) at 4. Pecuniary losses
are out-of-pocket expenses 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 pecuniary
losses incurred prior to the date of the resolution of the damage claim.
Id. at 4. Future pecuniary losses are losses that are likely to occur
after the resolution of litigation. Id. Non-pecuniary losses are losses
that are not subject to precise quantification, including 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. Id. at 5.
Past Pecuniary Damages
The agency denied complainant's claim for past pecuniary damages
due to lack of documentation. We agree with the agency's position
that complainant's claim for past pecuniary damages consists of a
generalized list of expenses and is not supported by objective evidence.
Complainant claims $3,100.40 for 115 personal hours worked on his case.
A complainant is permitted to have a reasonable amount of official time,
if otherwise on duty, to prepare the complaint and to respond to agency
and EEO requests for information. 29 C.F.R. � 1614.605(b). A complainant
is not, however, entitled to payment for time worked on his case, while
either on or off duty. We note that complainant make no claim that he
was denied a reasonable amount of official time to prepare his case.
Complainant also claims that he is owed $3,400.00 for administrative
expenses, such as phone calls, travel, and lodging. Complainant has
failed to present any documentation, such as in the form of bills or
receipts, to substantiate his claims. A mere list of phone calls with
the date of the calls and charges incurred, as provided by complainant,
is insufficient to support a claim for pecuniary damages. There is no
detail regarding the nature of the call or to whom the call was placed.
Complainant has failed to show that any of these calls were related to his
case in any manner. Furthermore, complainant has not comprised a list
of where he traveled, why he traveled there, and how the travel related
to his discrimination complaint. Complainant further claims that he is
owed $1,019.74 for over-the-counter medication, such as pain relievers
and muscle relaxers, and that he is owed $3,818.18 for therapeutic
treatments and health spa visits. Again, complainant has failed to show
a nexus between the medication and the therapeutic and spa treatments,
and the discrimination found as a result of the denial and delay of his
tour of duty extension. There are no receipts for medication provided
in the record. Furthermore, the statement from complainant's sports
massage therapist in no way indicates that complainant's treatment was
made necessary by the retaliation suffered by complainant, and there are
no receipts for the treatments included in the record. We further note
that in his claim for compensatory damages, complainant maintains that
he �expended out-of-pocket costs not directly reimbursable as attorney
fees, but which were expenses paid to his attorneys.� We are unclear as
to what expenses complainant is referring, as complainant has failed to
provide documentation regarding such out-of-pocket expenses. Therefore,
we find that the agency properly denied complainant's claim for past
pecuniary damages.
Future Pecuniary Damages
Complainant did not request specific future pecuniary damages for losses
likely to occur following the conclusion of his case, either in his
request for compensatory damages submitted to the agency, or on appeal.
We find that the agency properly declined to award complainant future
pecuniary damages.
Nonpecuniary Damages
To justify an award for emotional harm, there must be sufficient causal
connection between the agency's illegal actions, and the complainant's
injury. Compensatory and Punitive Damages Available Under Section 102 of
the Civil Rights Act of 1991, EEOC Notice No. 915.002 (July 14, 1992) at
5-6. The discriminatory act or conduct must be the cause of the emotional
harm. Id. An award of compensatory damages for non-pecuniary losses
should also reflect the nature and severity of the harm and the duration
or expected duration of the harm. Id. Evidence of emotional harm may
be established by testimony. Id. at 6. A complainant's testimony
may be solely sufficient to establish emotional harm. Id. at 6-7.
Although damage awards for emotional harm can greatly vary, and there
are no definitive rules governing amounts to be awarded, compensatory
damage awards must be limited to the amounts necessary to compensate the
complainant for actual harm, even if that harm is intangible. Id. at 7.
The agency awarded complainant $2,000.00 in non-pecuniary compensatory
damages. In his claim for compensatory damages, complainant states that
he has provided proof that he has experienced depression, feelings of
inadequacy and failure, increased fatigue, stress-related skin disorders,
marital difficulties, decreased interest in physical activity and
normal social interactions, sleeplessness, loss of enjoyment of life,
and helplessness. Complainant claims that he has experienced alienation
and exclusion from community activities. We note that complainant spends
much time discussing his removal from his position with the church, but
he has not established a causal connection between the discrimination
that he suffered and his removal from his position with the church.
On appeal, complainant's attorney states that the discrimination
�exacerbated complainant's sensitive medical condition and cause[d] him
to seek both professional treatment and to self-medicate.� There is no
detail regarding the nature of this prior sensitive medical condition,
which complainant describes as �the residual depressive emotional effects
of the discrimination,� in the record, and there is no proof of medical
treatment sought by complainant for this alleged impairment.
Complainant also claims to have suffered extreme humiliation as a
result of the agency's discrimination against him. He maintains that
the discrimination resulted in a loss of respect and trust by his
subordinates, peers and members of the military religious community.
He also claims to have suffered from headaches, body rashes, neck and
back problems. Complainant's wife states that he has become depressed,
thereby creating friction and disharmony between them, and she emphasizes
that his reputation in the community has been damaged. Complainant's wife
reiterates that he has suffered from headaches, muscle aches in the back,
shoulders, and lower extremities, and skin disorders on the neck, lips,
and face. Complainant's wife also conveys that complainant's physician
states that his skin disorders are likely caused by allergies, though
she believes them to be caused by stress. We note that there is no
statement from complainant's physician in the record. Complainant's
massage therapist states that complainant has experienced stress and
tension, though as described above, he does not link these conditions
to the reprisal.
The Commission finds that complainant has established some connection
between the emotional harm suffered and the two denials of his request
for a two-year extension of his overseas tour and the resultant delay.
We note that complainant does not distinguish between the harm suffered
as a result of the agency's discriminatory reprisal and harm that he
believes stemmed from other claims in which findings of no discrimination
were ultimately found in a U.S. District Court. Nevertheless, we are
mindful that it may not be practical to expect complainant to neatly
compartmentalize the harm that occurred as a result of discriminatory
reprisal, from other actions ultimately found to be non-discriminatory. We
also bear in mind that complainant did receive his two-year extension,
albeit following the delay, on or about July 26, 1994. The Commission
notes that complainant did not seek medical attention for any of
the emotional harm that he suffered, and there is no indication that
complainant suffered long term psychological harm.
The Commission has awarded compensatory damages in cases similar to
complainant's. See Deering-Benford v. United States Postal Service, EEOC
Appeal No. 01994500 (October 31, 2000) ($3,000 non-pecuniary damages when
the complainant was not hired to a position on the basis of reprisal and
therefore suffered from stress, migraine headaches, insomnia, and marital
strain and did not submit medical evidence to support her claim); Feser
v. Department of Agriculture, EEOC Appeal No. 01974440 (June 29, 2000)
($2,500 non-pecuniary damages where, in reprisal for prior EEO activity,
an agency suggested to employees that complainant might commit violent
acts against agency personnel, and as a result complainant experienced
depression, headaches, back and neck spasms, anxiety, and insomnia,
but did not provide medical evidence to support her claim); Benson
v. Department of Agriculture, EEOC Appeal No. 01952854 (June 27, 1996)
($5,000 non-pecuniary damages where complainant was denied promotional
opportunities on the bases of race and reprisal, and consequently
experienced stress, skin rashes, withdrawal, and isolation). Taking into
account the evidence of non-pecuniary damages submitted by complainant,
and comparing complainant's situation with awards made in similar cases,
we find that an award of $3,000.00 is appropriate. We note that this
amount meets the goals of not being motivated by passion or prejudice,
not being �monstrously excessive� standing alone, and is consistent with
the amounts awarded in similar cases.
Attorney's Fees
Complainant has requested $14,586.00 in attorney's fees and $371.00 in
costs. 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. Attorney's fees are computed by determining the
lodestar, i.e., the number of hours reasonably expending multiplied by a
reasonable hourly rate. See Bernard v. Department of Veterans Affairs,
EEOC Appeal No. 01966861 (July 17, 1998) (citing Blum v. Stenson, 465
U.S. 886 (1984)); 29 C.F.R. � 1614.501. All hours reasonably spent
in processing the complaint are compensable, but the number of hours
should not include excessive, redundant or otherwise unnecessary hours.
Equal Employment Opportunity Commission Management Directive 110 (MD-110)
(November 1999) at 11-5. 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. An application for attorney's fees
must include a verified statement of attorney's fees accompanied by an
affidavit executed by the attorney of record itemizing the attorney's
charges for legal services. MD-110 at 11-9.<6> While the attorney is
not required to record in great detail the manner in which each minute of
his time was expended, the attorney does have the burden of identifying
the subject matters on which he spent his time by submitted sufficiently
detailed and contemporaneous time records to ensure that the time spent
was accurately recorded. See Spencer v. Department of the Treasury,
EEOC Appeal No. 07A10035 (May 6, 2003).
Complainant had two attorneys during the course of his case, over
different periods of time. It is uncontested that the hourly rate of
complainant's current attorney, at $300.00 per hour, is reasonable.<7>
The agency contends that the number of hours claimed to have been expended
by complainant's attorney on this case are excessive and unnecessary,
making a fee adjustment appropriate. The Commission agrees with the
agency's assertion that many entries in the attorney's invoice included
with his petition for fees and costs are for services unrelated to the
claim of discrimination found. The attorney has included time spent for
complainant's many other EEO complaints on which he did not prevail,
and the subsequent civil court action. The agency is not responsible
for these fees.
When a fee reduction becomes necessary based on excessive hours, the
Commission need not �perform a detailed analysis to determine (sic)
precisely the number of hours or types of work for which no compensation
is allowed; rather, it is appropriate to reduce the hours claimed by
an across-the-board reduction.� See Bernard, EEOC Appeal No. 01966861
(quoting Finch v. United States Postal Service, EEOC Request No. 05880051
(July 15, 1988)). Our review of the record in this case indicates that
such an across-the-board reduction of complainant's current attorney's
hours by 50% is reasonable in this case. We concur with the agency's
award of $7,293.00 in attorney's fees for complainant's current attorney,
and $371.00 in costs.
Complainant also had representation prior to his current counsel.
Complainant has requested $6,837.00 in attorney's fees for the prior
attorney's representation. The agency has awarded the prior attorney
$2,000.00. Complainant's prior attorney has not submitted a petition
for fees and costs. It is the attorney's burden to submit information
identifying the subject matters on which he spent his time. See Bernard,
EEOC Appeal No. 01966861. Although complainant provides a list of check
numbers and dates, ostensibly paid to his former attorney, we have no
way of verifying this information, as copies of the checks have not been
included in the record. There is no confirmation by the attorney that
these amounts were charged to complainant, or received by complainant's
former attorney. Furthermore, there is neither information concerning the
former attorney's reasonable hourly rate, nor is there any information
regarding the number of hours reasonably expended by that attorney on
the complaint in which a finding of discrimination was found. We are
therefore unable to award any attorney's fees to complainant's former
attorney.
Accordingly, 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 agency's
award of compensatory damages and attorney's fees and costs. We direct
the agency to take action consistent with the Order below.
ORDER
The agency is ordered to take the following remedial action:
Within thirty (30) calendar days of the date this decision becomes final,
the agency shall pay non-pecuniary compensatory damages to complainant
in the amount of $3,000.00, less any amount already paid.
The agency shall pay complainant $7,664.00 in attorney's fees and costs,
less any amount already paid.
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 evidence that the remedial 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.
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 (S0900)
You have the right to file a civil action in an appropriate United States
District Court within ninety (90) calendar days from the date that you
receive this decision. If you file a civil action, you must name as
the defendant in the complaint the person who is the official agency head
or department head, identifying that person by his or her full name and
official title. Failure to do so may result in the dismissal of your
case in court. "Agency" or "department" means the national organization,
and not the local office, facility or department in which you work. If you
file a request to reconsider and also file a civil action, filing a civil
action will terminate the administrative processing of your complaint.
RIGHT TO REQUEST COUNSEL (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
September 24, 2003
__________________
Date
1All management officials
interviewed by the investigator denied responsibility for the second
denial of complainant's tour request.
2The Commission found that complainant failed to show that the agency
discriminated against him on the bases of race or color.
3The Commission also ordered the agency to provide training in the
obligations and duties imposed by Title VII to agency officials involved
in the decision to delay the approval of complainant's tour, ordered the
agency to consider taking disciplinary action against the responsible
agency officials, and ordered the agency to post the notice of the
discrimination finding attached to the Commission's decision in EEOC
Appeal No. 01980379.
4We note that in complainant's August 27, 2001 submission regarding his
claim for compensatory damages, complainant requested $300,000.00 in
non-pecuniary compensatory damages.
5According to the agency, complainant improperly included attorney's
fees in his calculation of compensatory damages. This deduction plus
adjustment for mathematical error by complainant as detailed in the
agency's final decision, puts complainant's request for pecuniary
compensatory damages at approximately $11,338.34.
6A verified statement of fees must include a list of services rendered
itemized by date, number of hours, detailed summary of the task, rate,
and attorney's name; documentary evidence of the reasonableness of hours,
such as contemporaneous time records, billing records, or a reasonably
accurate substantial reconstruction of time records; and documentary
evidence of the reasonableness of the rate, such as an affidavit
stating that the requested rate is the attorney's normal billing rate,
a detailed affidavit of another attorney in the community familiar with
the prevailing community rates for attorneys of comparable experience and
expertise, a resume, a list of cases handled, or a list of comparable
cases where a similar rate was accepted. Spencer v. Department of the
Treasury, EEOC Appeal No. 07A10035 (May 6, 2003).
7Complainant's attorney has provided documentation to support his hourly
rate, in the form of two statements from attorneys attesting to the
prevailing community rates. We find that one out of the two statements
does not support our requirement that the attorney be familiar with the
prevailing community rates. That attorney stated, �I recently heard some
attorneys in the Los Angeles/San Diego area were charging $300 per hour
which seems modest to me.� Nevertheless, we find the other attorney's
statement to be reliable, and because the agency does not contest
complainant's attorney's hourly rate, we find such rate to be reasonable.