07A20076
09-22-2003
Vallie D. Williams, Complainant, v. Anthony J. Principi, Secretary, Department of Veterans Affairs, Agency.
Vallie D. Williams v. Department of Veterans Affairs
07A20076
09-22-03
.
Vallie D. Williams,
Complainant,
v.
Anthony J. Principi,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 07A20076
Agency No. 95-1427
Hearing No. 250-95-8276X
DECISION
Concurrent with the issuance of its March 29, 2002 final order, the
agency filed a timely appeal, which the Commission accepts pursuant to 29
C.F.R. � 1614.405. On appeal, the agency requests that the Commission
affirm its rejection of the remedy ordered by an EEOC Administrative
Judge (AJ) following a finding that the agency discriminated against
complainant on the bases of her race and age in violation of Title VII
of the Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. �
2000e et seq. and the Age Discrimination in Employment Act of 1967
(ADEA), as amended, 29 U.S.C. � 621 et seq. For the following reasons,
the Commission affirms the agency's final order.
Complainant was a Computer Assistant, GS-0335-5, at the time of the
events herein, and was employed at the agency's VA Medical Center,
Memphis, Tennessee facility. She filed a formal EEO complaint with the
agency on February 10, 1995, alleging that the agency had discriminated
against her on the bases of race (African-American), sex (female), age
(56) and reprisal for prior EEO activity when: 1) she was not selected
for the position of Computer Clerk, GS-0335-4/5/6, in January 1995; 2) she
was not selected for the position of Computer Specialist, GS-0334-5/7/9,
in August 1994; 3) she received an �inaccurate� supervisory appraisal
rating in December 1994; 4) she was denied training opportunities; 5) her
duties were reassigned to others in January 1995; 6) she was harassed by
her supervisors; and 7) her position was eliminated during a reduction in
force (RIF) and she was reassigned to another position at the facility.
At the conclusion of the investigation, complainant was provided a copy
of the investigative report and requested a hearing before an AJ.
Following a hearing, the AJ found that complainant established a prima
facie case of race and age discrimination with respect to issue 1,
her non-selection for the position of Computer Clerk, GS-0335-4/5/6.
The record showed that complainant applied for the position, was
qualified, but was not selected and the person selected was not in
her protected classes. As the selectee (white, under the age of 40)
was also female, the AJ found that complainant had not shown a prima
facie case of sex discrimination. The AJ found that the agency failed
to articulate legitimate, nondiscriminatory reasons for its actions in
that it only put forth subjective reasons for selecting the selectee,
such as �an ability to learn new things� and �enthusiasm for the job.�
The AJ noted that the selecting official was not able to demonstrate
why she concluded the selectee had these qualities, and that the
complainant did not. The AJ further concluded that, even had the agency
satisfied its burden, complainant established that more likely than not,
the reasons provided by the agency were a pretext for discrimination.
In reaching this conclusion, the AJ found that complainant had shown she
had experience performing many of the duties of the position, that she
was a more qualified candidate, and that the selecting officials were
not credible. Complainant withdrew the basis of reprisal at the hearing.
With respect to issues 2, 3, 4, 5 and 6, the AJ found that complainant
was not discriminated against. With respect to issue 7, the AJ referred
the matter to the agency for issuance of a decision with appeal rights
to the Merit Systems Protection Board (MSPB), finding that it was a
mixed case complaint over which the Commission does not have jurisdiction.
After a bifurcated hearing on the damages to be awarded complainant,
the AJ issued a final decision in which he found that complainant was
entitled to the following: 1) placement in the position of Computer Clerk,
GS-0335-6/Step 8, retroactive to January 1996; 2) automatic promotions
to the levels of GS-7 (as of January 1997), GS-9 (as of January 2000)
and GS-11(as of the date �complainant would have received her GS-11, had
she been promoted in 1996") (position and step levels not specified); 3)
all commensurate back pay and benefits, with interest; 4) compensatory
damages in the amount of $10,000.00; 5) an award of 100% of the attorney's
fees in the case, which totaled over $62,000.00 (as of November 2001); and
6) training of management officials, posting a notice of discrimination,
and the elimination of discrimination in the workplace.
The agency's final order rejected, in part, the AJ's decision. The agency
accepted the part of the AJ's decision in which he found that complainant
had been discriminated against with respect to the non-selection for
Computer Clerk, GS-0335-4/5/6 in January 1995, and that part of the
decision which found that she had not been discriminated against with
respect to her other claims. It stated that a separate final agency
decision with respect to the RIF claim would be issued with appeal
rights to the MSPB. The agency agreed to implement the AJ's remedy
with respect to placement of complainant in the Computer Clerk position,
retroactive to January 1995, with promotion to GS-6 retroactive to 1996,
with all back pay, benefits and interest to which she was entitled.
The agency agreed with the AJ's finding that complainant was entitled
to compensatory damages in the amount of $10,000.00. It also agreed to
implement the AJ's orders regarding posting a notice of discrimination,
training of the relevant supervisors, and eliminating discrimination
and harassment from the work environment. The agency rejected the AJ's
award of retroactive promotions up to the GS-11 level, and contested
the awarding of 100% of the attorney's fees. The agency declined to
implement relief with respect to these two issues, and stated that it
would delay the promotions and payment of attorney's fees until the
resolution of its appeal to the Commission.
On appeal, the agency argues that the AJ erred when he did not reduce
the amount of attorney fees to reflect the fact that complainant did
not prevail on all of her claims. It claims that the award should be
reduced, in accordance with Commission precedent, by an across-the-board
percentage of the hours claimed. The AJ did not apply a percentage
reduction, as he stated in his decision, because the agency did not
supply him with any guidance on how to conduct the apportionment;
he therefore awarded 100% of the fees claimed. The agency suggests
that at least a 50% reduction would be reasonable in light of the fact
that complainant prevailed on only one out of seven claims, granting
complainant the argument that the work on all claims was intertwined and
not easily separable. It also argues that complainant has been unjustly
enriched by the award of promotion to the levels of GS-7, GS-9, and
GS-11, stating that the position which was discriminatorily denied to her
topped out at a GS-6, and any other advancements in grade level would be
speculative, as complainant would have had to be competitively promoted.
The agency pointed out that complainant had the burden of establishing
the likelihood of the subsequent promotions, and that unlike a career
ladder promotion, a competitive promotion was much more difficult to
which to establish an entitlement. The agency claimed that the record
simply did not establish complainant would have been promoted beyond
a GS-6, had discrimination not occurred. The complainant submitted an
appeal form, indicating that she was appealing the agency's decision,
but she did not submit any brief in support of her appeal, which would
specify which part of the agency's order she was contesting.
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.
After a careful review of the record, we discern no basis to disturb
the AJ's finding of discrimination on issue 1, and his findings of no
discrimination on issues 2, 3, 4, 5, and 6. Additionally, the matter of
the RIF was correctly referred to the agency for issuance of a mixed case
complaint decision. The findings of fact are supported by substantial
evidence, and the AJ correctly applied the appropriate regulations,
policies, and laws. We do however, find it is appropriate to modify
the remedy which was awarded by the AJ.
Promotion
The AJ found that complainant would have been promoted to the levels
of GS-7, GS-9, and GS-11 had she not been discriminated against in her
non-selection for the position of Computer Clerk, GS-4/5/6. The agency
contests this finding, saying that it is too speculative to state she
would have been promoted, given that the position topped out at the GS-6
level and any other promotions would have been applied for competitively.
The Commission notes that, typically, claims that an individual would
have received a promotion subsequent to the discriminatory act are
deemed speculative, particularly when the promotion is competitive.
See Ramirez v. United States Postal Service, EEOC Petition No. 04950024
(February 8, 1996). Where a complainant asserts that s/he would have
received a further or subsequent promotion, it is complainant's burden
to establish the likelihood of that event. Kendall v. Interior, EEOC
Request No. 05920217 (January 28, 1992); see, e.g., Allen v. Defense
Logistics Agency, EEOC Request No. 05900807 (September 11, 1990); Duddey
v. Securities and Exchange Commission, EEOC Request No. 05890115 (April
3, 1989); Rai v. Department of the Interior, EEOC Request No. 05880596
(August 12, 1988).
We find that complainant has not established that she would have
automatically attained positions at the levels of GS-7, GS-9, and GS-11
absent the discrimination. There is no evidence in the record, other
than complainant's assertions, that she would have been automatically
promoted to those levels had she been selected for the Computer Clerk,
GS-0335-4/5/6 position in January 1995. There is also no evidence in
the record that demonstrates that the selectee for the Computer Clerk,
GS-0335-4/5/6 position has attained these higher levels at this time,
which would be likely if the advancement were automatic.
Complainant also testified that she was interested in a position
in Indiana (but did not specify the grade level), and that after
discussions with the hiring official, she was told that it would be
filled from within. She claimed that the agency had given her a bad
recommendation and that she lost out on the transfer due to the effects
of the agency's discriminatory action. The AJ cited this as further
proof that complainant should be made a GS-11. We find that this is
speculative, especially given that there is no proof complainant ever
actually applied for the position, beyond having a discussion with the
selecting official in Indiana.
Attorney's Fees
By federal regulation, 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. EEOC Regulation 29 C.F.R. �
1614.501(e)(1)(ii). To determine the proper amount of the fee, a lodestar
amount is reached by calculating the number of hours reasonably expended
by the attorney on the complaint multiplied by a reasonable hourly rate.
Blum v. Stenson, 465 U.S. 886 (1984); Hensley v. Eckerhart, 461 U.S. 424
(1983).
Complainant's attorney claimed fees for 313.85 hours of work at $200.00
per hour, for a total of $62,770.00 in November 2001. The AJ found
that the attorney's hourly rate was reasonable, given her experience.
The agency did not contest the hourly rate. It did however, contest
the award of 100% of the fees given that complainant did not prevail
on all of her claims. The agency argues that at least a 50% reduction
would be reasonable in light of the fact that complainant prevailed
on only one out of seven claims. Complainant's attorney argued that
the work on all her claims was intertwined and not easily separable.
We agree that the award of 100% of the claimed fees was not appropriate.
We first note that one of complainant's claimed bases of discrimination
is age, and that neither compensatory damages nor attorney's fees
are available remedies under the ADEA. See Falks v. Department
of Treasury, EEOC Request No. 05960250 (September 5, 1996); Seymour
v. Department of Veterans' Affairs, EEOC Request No. 05900257 (July 20,
1990); 29 C.F.R. � 1614.501(e)(1) (attorney fees not available for ADEA
claims). We therefore find it appropriate to reduce the fee claimed by
complainant's attorney by 25% as age was one of four bases claimed by
complainant in her complaint and which the attorney prepared to argue
at the hearing.
There is a strong presumption that the number of hours reasonably expended
multiplied by a reasonable hourly rate, the lodestar, represents
a reasonable fee, but this amount may be reduced or increased in
consideration of the degree of success, quality of representation, and
long delay caused by the agency. 29 C.F.R. � 1614.501(e)(2)(ii)(B). The
circumstances under which the lodestar may be adjusted are extremely
limited, and are set forth in EEO Management Directive 110 (November 9,
1999). A fee award may be reduced: in cases of limited success; where the
quality of representation was poor; the attorney's conduct resulted in
undue delay or obstruction of the process; or where settlement likely
could have been reached much earlier, but for the attorney's conduct
MD110, at p. 11-7. The party seeking to adjust the lodestar, either up
or down, has the burden of justifying the deviation. Id. at p. 11-8.
Usually, the hours spent on each claim in the complaint are sufficiently
documented such that the number of hours spent on the successful and
unsuccessful claims can be readily ascertained. In this case however,
counsel did not denote her work for each claim, and she specifically
argues that complainant's claims were intertwined and not easily
separable. A review of the record shows that the witnesses who testified
at the hearing were relevant to many of the claims, the responsible
management officials were common to each claim, and the facts that
supported complainant's showing of pretext for the claim on which she
prevailed were also presented in support of many of her other claims.
In short, we find that the work performed by complainant's attorney was
not so distinct on each claim as to be able to easily separate out what
work was performed on the unsuccessful claims alone. We find therefore,
that the award should be reduced by a percentage reduction, to reflect
that complainant did not prevail on all claims presented. We find that
a 15% reduction is appropriate.
As the most recent fee petition in the case file is from November
2001, and the total fee at that time was $62,770.00, a reduction of
25% to account for the age claim, would equal a fee of $47,077.50.
Further reducing that fee by another 15% to account for the fact that
complainant did not prevail on all her claims, we find that complainant's
attorney should receive $40,015.88 in fees.<1>
Compensatory Damages
Although compensatory damages are not available under the ADEA, we find
that the amount of compensatory damages awarded by the AJ should not be
reduced. There was ample evidence provided by complainant at the remedies
hearing to support a finding of $10,000.00 to compensate complainant for
the discrimination suffered on the basis of her race alone. Therefore,
we affirm this finding by the AJ, and its implementation by the agency.
We note that complainant on appeal did not contest the AJ's award of
compensatory damages.
Therefore, after a careful review of the record, including arguments and
evidence not specifically discussed in this decision, the Commission
affirms 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 (D0403)
The agency is ordered to take the following remedial action, to the
extent it has not already done so:
Within thirty (30) calendar days of the date this decision becomes final,
the agency shall place complainant in the position of Computer Clerk,
GS-0335-5, retroactive to January 1995, with a non-competitive promotion
to GS-6, retroactive to January 1996. The agency shall determine the
appropriate amount of back pay, with interest, and other benefits
due complainant, pursuant to 29 C.F.R. � 1614.501, no later than
sixty (60) calendar days after the date this decision becomes final.
The complainant shall cooperate in the agency's efforts to compute
the amount of back pay and benefits due, and shall provide all relevant
information requested by the agency. If there is a dispute regarding the
exact amount of back pay and/or benefits, the agency shall issue a check
to the complainant for the undisputed amount within sixty (60) calendar
days of the date the agency determines the amount it believes to be due.
The complainant may petition for enforcement or clarification of the
amount in dispute. The petition for clarification or enforcement must
be filed with the Compliance Officer, at the address referenced in the
statement entitled "Implementation of the Commission's Decision."
Within thirty (30) calendar days of the date this decision becomes
final, the agency shall issue a check to complainant for compensatory
damages in the amount of $10,000.00. A copy of the check issued must
be submitted to the Compliance Officer, as referenced below.
Within thirty (30) calendar days of the date this decision becomes
final, the agency shall issue a check to complainant's attorney in the
amount of $41,024.13 to reflect the amount due of $40,015.88 in fees
and $1,008.25 in costs. A copy of the check issued must be submitted
to the Compliance Officer, as referenced below.
The agency shall consider taking disciplinary action against the
individual(s) identified in the AJ's decision as the responsible
management official for the discriminatory acts at issue in this
complaint. The agency shall report its decision to the compliance
officer. If the agency decides to take disciplinary action,
it shall identify the action taken. If the agency decides not to
take disciplinary action, it shall set forth the reason(s) for its
decision not to impose discipline. If this individual(s) have left
the agency's employ, the agency shall furnish documentation of their
departure date(s).
Within thirty (30) calendar days of the date this decision becomes final,
the agency shall take corrective, curative, and preventative action to
ensure that race and age discrimination do not recur, including but not
limited to providing training against discrimination in employment to
the agency employees responsible for the discrimination. The Commission
does not consider training to be a disciplinary action.
The agency shall provide proof that the notice of discrimination
which was appended to the agency's final decision was posted at the
VA Medical Center, Memphis, Tennessee facility for ninety (90) days.
In the event that it was not, the notice referenced below is provided.
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 calculation of back pay and other benefits due complainant,
including evidence that all the corrective action has been implemented.
POSTING ORDER (G0900)
The agency is ordered to post at its VA Medical Center, Memphis,
Tennessee 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.
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
___09-22-03_______________
Date
POSTED BY ORDER OF THE
EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
An Agency of the United States Government
This Notice is posted pursuant to an Order by the United States Equal
Employment Opportunity Commission dated which found that a
violation of the Title VII of the Civil Rights Act of 1964, as amended,
42 U.S.C. � 2000e et seq. (Title VII), and the Age Discrimination in
Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq. has
occurred at this facility.
Federal law requires that there be no discrimination against any employee
or applicant for employment because of the person's RACE, COLOR, RELIGION,
SEX, NATIONAL ORIGIN, AGE, or DISABILITY with respect to hiring, firing,
promotion, compensation, or other terms, conditions or privileges of
employment. The VA Medical Center, Memphis, Tennessee confirms its
commitment to comply with these statutory provisions.
The VA Medical Center, Memphis, Tennessee supports and will comply with
such Federal law and will not take action against individuals because
they have exercised their rights under law.
The VA Medical Center, Memphis, Tennessee has been found to have
discriminated against an employee based on her race and age when the
agency did not select her for a position to which she had applied.
The VA Medical Center, Memphis, Tennessee has been ordered to place the
employee in the position, provide compensatory damages, back pay and
other benefits to the affected employee and provide training regarding
Title VII and the ADEA to appropriate managers. The VA Medical Center,
Memphis, Tennessee will ensure that officials responsible for personnel
decisions and terms and conditions of employment will abide by the
requirements of all Federal equal employment opportunity laws.
The VA Medical Center, Memphis, Tennessee will not in any manner restrain,
interfere, coerce, or retaliate against any individual who exercises his
or her right to oppose practices made unlawful by, or who participates
in proceedings pursuant to, Federal equal employment opportunity law.
_______________________________
Date Posted: ____________________
Posting Expires: ________________
29 C.F.R. Part 1614
1 As the agency does not seem to be contesting the amount of claimed
expenses of complainant's attorney, we find that her claimed costs should
be paid as well. The most recent accounting of costs in the case file
is dated June 15, 2001, totaling costs of $1,008.25.