07-2006-0051
05-17-2007
Veronica Drummond-Irving, Complainant, v. Michael Chertoff, Secretary, Department of Homeland Security, Agency.
Veronica Drummond-Irving,
Complainant,
v.
Michael Chertoff,
Secretary,
Department of Homeland Security,
Agency.
Appeal No. 07200600511
Agency No. 030462
Hearing No. 210-A4-0376X
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts the agency's appeal from the Administrative Judge's November 22, 2005 decision in the above-entitled matter.
PROCEDURAL HISTORY
In complainant's August 31, 2004 formal EEO complaint, she alleged that the agency discriminated against her when she was not selected for promotions offered by the agency under four separate vacancy announcements. In relation to the first non-selection, in March 2003, for the position of Supervisory Entry Specialist under Vacancy Announcement MDAME/02-026AC (Position 1), complainant alleged that the agency discriminated against her on the bases of race (African-American), color (black) and retaliation (prior EEO activity). In relation to the second non-selection, in July 2003, for the position of Supervisory Entry Specialist under Vacancy Announcement MDAME/03-003MTA (Position 2), complainant alleged that her non-selection constituted reprisal by the agency. The complainant also alleged discrimination and reprisal with respect to vacancy announcement MDAME/03-004 JAM - Team Leader-Import Specialist (Position 3) and MDAME/03-011NLM - Drawback Specialist (Position 4).
On December 22, 2004, the agency moved for summary judgment as to all four vacancy announcements. On March 15, 2005, complainant filed her brief opposing the agency's motion. On June 28, 2005, the AJ granted the agency's motion in part. In particular, the AJ found that complainant was entitled to a hearing only on the issue of reprisal in relation to Position 2. The AJ granted summary judgment to the agency with respect to the other three vacancy announcements.2
On July 28-29, 2005, the AJ held a hearing on complainant's retaliation complaint in relation to Position 2. During the hearing, complainant moved to amend her complaint to add an allegation of race discrimination in relation to this vacancy. The AJ denied the motion and the hearing proceeded. On August 10, 2005, the AJ issued his findings of fact and conclusions of law in favor of complainant. Following briefing by the parties, the AJ issued his final decision awarding complainant attorney's fees and costs in the total amount of $74,793.14. On February 13, 2006, the agency declined to implement the AJ's decision and filed a Notice of Appeal. Complainant responded to the agency's Appeal Brief and filed a Cross-Appeal.
Position 2 - AJ Decision Following a Hearing
Prima Facie Case
The AJ concluded complainant established a prima facie case of reprisal discrimination. In his decision, the AJ noted that the parties did not contest whether complainant engaged in prior protected activity, whether complainant suffered an adverse action, or whether the temporal connection of about four months between the EEO activity and the non-selection was close enough to raise an inference of retaliatory motive. In addition, the AJ noted that the parties do not dispute that the selecting official (DO) was aware of complainant's March 2003 EEO complaint.
However, the parties dispute the timing as to when DO became aware of complainant's EEO complaint associated with Position 1. The AJ noted that DO testified that she became aware of complainant's EEO case only after she was contacted by an investigator asking her for an affidavit in connection with the EEO investigation. According to the investigative file, the assigned EEO investigator did not begin her investigation until November 2003. As such, there is nothing in the written record to show that DO knew of the March 2003 EEO claim prior to July 11, 2003.
The AJ concluded, however, that an inference can be drawn from the evidence that an agency management official (S1) told DO about the EEO case shortly after she was contacted by an EEO counselor on March 17, 2003. Specifically, complainant was able to demonstrate that DO and S1 had a friendly and personal relationship, in addition to their professional relationship. The AJ explained that his conclusion that S1 told DO about complainant's EEO case in March 2003, was also supported by the lack of credibility in S1's testimony that she did not recall ever speaking to an EEO counselor about complainant's claim of discrimination in connection with Position 1 and her questionable denial of ever speaking with DO about complainant's EEO complaint.
The AJ also concluded that RO's testimony provided additional support to the claim that DO was aware of complainant's EEO case prior to July 11, 2003. Specifically, RO recalled discussing the supervisor vacancy in the Entry Branch with DO. According to RO's affidavit testimony, she recalled telling DO during their conversation that if complainant did not get the supervisor position, that she would file an EEO claim as she has done with Position 1. To this comment, DO allegedly retorted that it was not RO's problem. The AJ noted that RO's hearing testimony varied a little in that she was not sure whether she specifically referred to Position 1 during her conversation with DO. The AJ observed the demeanor of the witnesses and their manner of testifying, and concluded that it was more likely than not that S1 remembered talking to an EEO counselor and that she spoke to DO about the EEO complaint soon after she was contacted.
S1 related that she has been working for the agency for 30 years. She testified that she recalled only one instance when she was contacted by an EEO counselor but that she did not recall getting a call from a counselor in March 2003, about complainant's claim. The AJ found this testimony difficult to believe, based upon his observation of S1's demeanor and her manner of testifying and the facts of this case. The AJ stated that he "studied S1's mannerisms, the way she responded to the questions with false nonchalance, her eye movements, and the way she was chewing her gum on the stand." The AJ noted that from S1's testimony it was clear that a phone call from an EEO counselor dealing with a claim of race discrimination in a promotion was not a common occurrence for her. In addition, the AJ noted that S1 talked about various employees and personnel issues at various conferences and also in the office with various people and recalled some of those conversations with no problem at the hearing. She even recalled some of the rumors floating in the office about complainant watching television and reading romance novels. However, when she was asked about a call from an EEO counselor concerning a promotion process in which she was one of the rating supervisors, she denied recalling such conversation. The AJ did not find this testimony credible and noted that S1 has demonstrated that she not only listens to rumors but that she repeats them in the workplace. For example when DO asked her about complainant, S1 repeated what other managers had said to her, even though she conceded that she had no firsthand knowledge that complainant was lazy because she watched television and read romance novels. In addition, the AJ noted that even though S1 never supervised complainant, she, nevertheless, felt no hesitation in criticizing her performance in the workplace. After assessing S1's testimony and other evidence in the record, the AJ concluded that S1, more likely than not, informed DO of the EEO complaint that complainant filed in connection with Position 1 soon after she got the call from the EEO counselor in March 2003.
In addition, the AJ noted that S1's demeanor and her manner of testifying left him with the feeling that she was hiding something and that she was justifying what she said to DO. According to the AJ, S1 was overly emotional during her testimony and at times evasive and hostile. The AJ found S1's emotional testimony unreasonable since she does not claim to be a major witness in this case. The AJ also felt that she gave false testimony to explain inconsistencies in her testimony at times. For example, S1 testified that she lied in a previous rating by stating that two applicants were better qualified than SE2 since she allegedly believed that RO would never recommend SE2 for a supervisor position.
The AJ also noted that although RO's dates are inaccurate, he found her affidavit testimony regarding her conversation with DO more accurate than DO's recollection. DO testified that she spoke with RO about the recommendation for the supervisor vacancy in the Entry Branch, as well as, the Team Leader vacancy in the Commodity Branch at the same time. DO said that she tried to persuade RO to change her recommendation on the Team Leader position from the selectee to complainant and impressed upon her that if she did not change her Team Leader recommendation, complainant would not be promoted. However, according to RO, at the time she was asked about the Team Leader position, RO told DO that she did not know who she would recommend because the rating panel had not completed their review of the packages.
The AJ found RO's recollection of the substantive conversation more accurate than DO's recollection in that two of the rating panel members for the team leader vacancy did not forward their recommendations to RO until July 10, 2003, the day before DO made her Team Leader selection. In addition, the AJ concluded that RO would have mentioned complainant's EEO claim in connection with Position 1 when she spoke with DO. The AJ noted that S1 testified that RO was defensive about selecting the right people to avoid EEO liability. RO also testified that she wanted to make no substantive assessment in the selection process to avoid being blamed for anything. RO knew of the EEO case in connection with Position 1, as she was also contacted by an EEO counselor in March 2003. The AJ concluded that consistent with her management style, it was more likely than not, that RO told DO about the pending EEO case. Accordingly, the AJ concluded that DO knew of complainant's prior EEO activity in March 2003.
AJ's Finding of Pretext
The AJ also concluded that the agency's articulated reason for its selection was pretext for retaliation. Specifically, the AJ noted that DO testified that SE2 was selected based on her Entry Branch experience and argued that there is factual support for the explanation that SE2 had more entry experience than complainant. However, the AJ also noted that DO was extremely nervous and uncomfortable throughout her testimony and distanced herself away from her prior statements made in her affidavit. In her affidavit, DO testified that she took into account what S1 and S2 had to say about the candidates. But at the hearing, DO testified that her decision really came down to the fact that SE2 had Entry Branch experience whereas complainant did not. The AJ concluded that the distancing was a calculated move on the part of DO as she realized that neither S1 nor S2 had any credible first-hand knowledge about the applicants. Neither of them had any first-hand experience supervising their performance.
The AJ also considered the fact that when DO considered the applications for Position 1, DO recognized tangible qualifications other than Entry Branch experience. Furthermore, when asked about her reason for failing to select SE2 (who had more years of Entry Branch experience) over the selectee for Position 1 (SE1), DO explained that SE1 had other leadership qualities that made up for her lack of Entry Branch experience. The AJ also noted that the rating panel also concluded that SE1 was the most qualified and yet, when considering complainant's application for Position 2, DO did not consider anything but the candidate's level of Entry Branch experience. The AJ found this change by DO in selection criterion highly unusual. In addition, the AJ noted that DO explained that prior Entry Branch Experience was crucial in her mind because the supervisor would have to be able to provide technical guidance and support to the specialist. However, the AJ concluded that supervisors are much more than mere resources when a line employee has a technical question. DO conceded that there was a significant difference between Team Leader and Supervisor and that the responsibility of a supervisor is greater than that of a Team Leader.
The AJ concluded based on DO's testimony that SE2 may have made a great Team Leader providing technical guidance when the specialists needed it, but her Entry experience did not show anything about her ability to supervise and to address the multitude of issues and tasks a supervisor must handle on a daily basis. The AJ also noted that the rating panel members did, in fact, look at the whole picture and what is required of a supervisor and who would be best qualified to supervise employees and to deal with other areas of the operation. Two out of the three panel members rated complainant very high and SE2 very low. Even the panel member who recommended SE2 over complainant had them separated by only a half a point. The AJ also noted that the rating panel recommendations show that all four candidates competing for the supervisor position were technically proficient for the job because of what they were doing in their positions. M3 testified in his EEO affidavit that Entry experience is "closely associated with the functions and duties of an Import Specialist." Moreover, the AJ noted that both S1 (who later became the Chief Supervisor of the Entry Branch) and M3 (who became a Supervisor in the Entry Branch), did not have prior Entry Branch experience before their promotions.
Under these circumstances, the AJ concluded that DO did not genuinely believed SE2 was, in fact, the best qualified candidate. The AJ concluded that while DO was entitled to weigh the candidate's prior Entry Branch experience, the totality of the circumstances in this case do not weigh in favor of DO's explanation. Based upon the circumstances stated herein above, the AJ concluded that complainant proved by a preponderance of the evidence that she was not selected to Position 2 because of her prior EEO activity in March 2003.
Agency Appeal
The agency generally argues, inter alia, that the AJ's finding of retaliation is based on inferred facts, a faulty analysis, and improper inferences. Specifically, the agency argues that complainant failed to present evidence regarding the substance of any conversation between S1 and the EEO counselor. The agency argues that instead, the AJ improperly "filled in the blanks" for complainant and improperly concluded that S1 must have remembered being contacted. The agency further argues that it is conjecture by the AJ to assert that S1 "must have" told DO about complainant's EEO claim and that S1 told DO "soon after she got the call from the EEO counselor," in March 2003. The agency argues that there is no support in the record for that assertion.
The agency also argues that the AJ incorrectly characterized S1 as unreasonably emotional during her hearing testimony. Specifically, the agency asserts that the AJ should not have held any perceived hostility or emotion against S1 given the intense cross-examination she had to endure.
In addition, the agency argues that the finding of reprisal was erroneous since there was no evidence of retaliatory motive in the record. The agency asserts that the AJ's decision glosses over the question of retaliatory motive, and seems to depend on the proximity of complainant's initial complaint and the date of the selection (approximately four months later) to raise an inference of a connection. However, the agency argues that proximity in time between the protected activity and the adverse action, and the knowledge of agency officials taking the action, standing alone, will not give rise to a finding of discrimination. Specifically, the agency notes that there was no relationship between complainant and DO. Complainant testified that she never had any conflict with the selecting official. Nor is there any evidence of any conflict with any other official in relation to filing, having filed, or otherwise utilized the EEO system. The agency also notes that there is nothing in the record to support any retaliatory motive on the part of DO. The agency also argues that the AJ improperly substituted his view of the most important skills for an Entry Branch supervisor over those of the selecting official when he concluded that DO's explanation for her non-selection was pretextual.
ANALYSIS AND FINDINGS
We find substantial evidence in the record to support the AJ's finding of reprisal. Specifically, we find that the AJ was permitted to conclude from the facts discussed in his decision that DO was aware of complainant's prior EEO activity prior to complainant's non-selection. We also find that a span of four months between the prior EEO activity and adverse action is sufficient to establish a causal connection. See EEOC Compliance Manual, Section 8 (Retaliation) at 8-18 (May 20, 1998). This causal connection along with the finding of pretext is sufficient to support a finding of retaliation. See Conrad v. Department of Justice, EEOC Appeal No. 0120041275 (December 20, 2006) (Complainant established unlawful retaliation by establishing close time span between adverse action and prior EEO activity and pretext); Prevo v. Federal Deposit Insurance Corp., Appeal No. 01972832 (March 10, 2000); See also, Fosina v. United States Postal Service, EEOC Request No. 05880804 (January, 23, 1989) (holding that sufficient evidence was brought forward to establish that, despite the sixteen month interval, appellant's non-selection was, more likely than not, motivated by his prior EEO activity in light of the fact that the reasons articulated by the agency for appellant's non-selection were shown to be unequivocally without credence).
The agency also argues that the AJ's finding of pretext was not supported by the record and that the AJ essentially substituted his judgment for DO's reasonable management decision. The AJ noted in his decision that the agency was free to weigh the candidates' prior Entry experience. However, the totality of the circumstances in this case does not weigh in favor of DO's explanation. While we have repeatedly recognized that the agency generally has broad discretion to set policies and carry out personnel decisions, personnel decisions which are idiosyncratic or suspect are subjected to heightened scrutiny. See Andre v. Department of Defense, EEOC Appeal NO. 01994562 (February 22, 2002). Deviations from standard procedures without explanation or justification are sufficient to support an inference of pretext. See Hovey v. Department of Housing and Urban Development, EEOC Appeal No. 01973965, (Aug. 31, 2000); Brown v. Department of Homeland Security, EEOC Appeal No. 01A45130 (November 7, 2005). Accordingly, we AFFIRM the AJ's finding of reprisal with respect to Position 2.
Position 1 - Summary Judgment Decision
The Commission's regulations allow an AJ to issue a decision without a hearing when he or she finds that there is no genuine issue of material fact. See 29 C.F.R. � 1614.109(g) (2004). This regulation is patterned after the summary judgment procedure set forth in Rule 56 of the Federal Rules of Civil Procedure. The U.S. Supreme Court has held that summary judgment is appropriate where a court determines that, given the substantive legal and evidentiary standards that apply to the case, there exists no genuine issue of material fact. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). In ruling on a motion for summary judgment, a court's function is not to weigh the evidence but rather to determine whether there are genuine issues for trial. See Id. at 249. The pleadings, responses to discovery, affidavits, depositions, etc., must show on their face that there are no genuine issues of material fact. The evidence of the non-moving party must be believed at the summary judgment stage and all justifiable inferences must be drawn in the non-moving party's favor. See Id. at 255; see also Petty v. Dep't of Defense, EEOC Appeal No. 01A24206 (July 11, 2003) (quoting Anderson, 477 U.S. at 249) ("The administrative judge may not issue a decision without a hearing if he or she actually has to find facts first to do so. According to the Supreme Court, 'at the summary judgment stage the judge's function is not... to weigh the evidence and determine the truth of the matter, but to determine whether there is a genuine issue for trial").
We find that the AJ properly granted summary judgment to the agency with respect to Position 1. The AJ held that the complainant failed to show the existence of a genuine issue of material fact as to whether DO's rationale for recommending C1 was a pretext to mask discrimination. The AJ found that although prior Entry experience was not a requirement for the position, this did not prohibit DO from considering such experience. In addition, we agree with the agency and find that the fact that some previous supervisors in the Entry Branch lacked Entry experience prior to their promotion was irrelevant because complainant failed to show evidence that DO was the official who promoted these individuals.
We find that complainant is unable to show any genuine issue of material fact concerning her claim of discrimination with respect to Position 1. Accordingly, we AFFIRM the AJ's summary judgment decision with respect to this issue.
AJ's Denial of Adding a New Basis to Complaint
Complainant also argues on appeal that the AJ erred in denying her motion which was initially raised at the hearing seeking to add race as a basis in her complaint. During the hearing complainant's counsel attempted to elicit testimony from a witness (W1) about her belief as to whether or not S2 was a racist. The agency objected that W1's opinion regarding S2 was not relevant to the issues before the AJ. The AJ sustained the agency's objection. The AJ reminded counsel that the only issue before him was whether the agency had retaliated against complainant in relation to her non-selection under Position 2. The AJ reasoned that W1's past experiences with S2, or any rumors she had heard about him were not "supportive of the theory of the case that [complainant] need[s] to prove for retaliation." In response, complainant's attorney moved to amend complainant's remaining allegation to add a claim of discrimination on the basis of race. The AJ denied the request and reminded complainant's attorney that: 1) the case had been pending for almost a year; 2) the scheduling order was clear in its requirements; 3) the AJ had allowed additional discovery after counsel became involved in the case; 4) the new claim could have been made "a long time ago" in the litigation; and 5) the "race theory" would have altered the nature of complainant's claim.
Under the facts herein, we do not find that the AJ abused his discretion in denying complainant's request. See Clarke v. Department of Defense, EEOC Appeal No. 01A52395 (May 26, 2006) (AJ did not abuse her discretion in rejecting complainant's motion to add a new basis since the motion was made by complainant, for the first time, on the day of the hearing, despite being represented by counsel throughout the discovery process); See also Dalesandro v. United States Postal Service, EEOC Appeal No. 01A50250, fn. 1 (January 30, 2006) (AJ did not abuse his discretion in rejecting complainant's motion to add a new basis since the motion was made after the AJ issued his Notice of Intent to Issue a Decision without a Hearing and the grant of the motion would unfairly prejudice the agency by denying it a full opportunity to engage in discovery and defend itself against the claim).
Compensatory Damages Award
After finding for complainant with respect to Position 2, the AJ awarded complainant $5,000 in non-pecuniary compensatory damages. Complainant argues on appeal that the compensatory damages award was insufficient. While the agency notes its disagreement with this argument in its response to complainant's cross-appeal, it does not raise the compensatory damages issue in its appeal.
Section 102(a) of the 1991 Civil Rights Act authorizes an award of compensatory damages for all post-act pecuniary losses, and for non-pecuniary losses, such as, but not limited to, emotional pain, suffering, inconvenience, mental anguish, loss of enjoyment of life, injury to character and reputation, and loss of health. To receive an award of compensatory damages, a complainant must demonstrate that she has been harmed as a result of the agency's discriminatory action; the extent, nature and severity of the harm; and the duration or expected duration of the harm. Rivera v. Department of the Navy, EEOC Appeal No. 01934157 (July 22, 1994), request for reconsideration denied, EEOC Request No. 05940927 (December 8, 1995); EEOC's Enforcement Guidance: Compensatory and Punitive Damages Available Under Section 102 of the Civil Rights Act of 1991, EEOC Notice No. 915.002 at 11-12, 14 (July 14, 1992). The Commission notes that damage awards for emotional harm are difficult to determine and that there are no definitive rules governing the amount to be awarded in given cases. A proper award must meet two goals: (1) that it not be "monstrously excessive" standing alone; and (2) that it be consistent with awards made in similar cases. See Cygnar v. City of Chicago, 865 F.2d 827, 848 (7th Cir. 1989). The Commission has held that evidence from a health care provider is not a mandatory prerequisite for recovery of compensatory damages. See Carpenter v. Department of Agriculture, EEOC Appeal No. 01945652 (July 17, 1995).
Complainant testified to numerous maladies, all of which preceded her non-selection in 2003, but worsened after July 11, 2003. Complainant testified that she suffers from; 1) weight gain; 2) asthma; 3) high blood pressure; and 4) hair loss. Complainant also testified that she became depressed in 2003 and was prescribed Zoloft by her doctor.
The AJ did not find complainant's testimony on her physical problems persuasive. The AJ noted in his decision that complainant's testimony was not detailed or persuasive enough to demonstrate the required nexus between the July 11, 2003 non-selection and the health problems she suffered. In addition, the AJ noted that there are too many variables that complainant did not address and rule out as possible causes of her health problems. The AJ also noted that complainant's testimony about her health problems predates the July 11, 2003 decision in that she testified that she suffered from them prior to April 2003. However, the AJ did find that based on the circumstances of this case, it is reasonable to infer from her testimony that complainant was deeply distressed and disappointed with the July 11, 2003 non-promotion and the fact that management retaliated against her.
We find substantial evidence in the record to support the finding that complainant was "deeply distressed and disappointed" with the July 11, 2003 retaliatory non-selection. In fact, while not specified by the AJ in his decision, we find ample testimony by complainant that emotional symptoms related to her depression (e.g., crying spells) increased after July 11, 2003. We also find sufficient evidence in the record to support the AJ's award of $5,000.00 in non-pecuniary damages. This amount takes into account the severity of the harm suffered and is consistent with prior Commission precedent. See Tuala v. Department of the Navy, EEOC Appeal No. 01A13645 (August 30, 2002), request for reconsideration denied, EEOC Request No. 05A21237 (November 20, 2002) ($5,000 awarded in non-pecuniary damages where complainant experienced depression, humiliation, and injury to his reputation and where testimony was general, with no supporting objective or medical evidence, and evidence of other contributing factors); See also Ko v. Department of Homeland Security, EEOC Appeal No. 07A20134 (December 1, 2003) ($5,000 awarded in non-pecuniary damages where complainant testified that he was disappointed and discouraged). We find the non-pecuniary damages award appropriate and, accordingly, AFFIRM the AJ's award.
Attorney's Fees Award
On September 16, 2005, complainant filed a Verified Petition for Costs and Attorney's Fees (Fee Petition) seeking $110,813.00 in fees and $2,641.95 in costs. The agency responded by asserting that complainant failed to bear her burden of demonstrating that the amount of attorney's fees and costs claimed are reasonable and sufficiently documented. On January 6, 2006, the AJ issued his final decision awarding complainant attorney's fees and costs in the amount of $74,793.14 (Fee Award). The agency declined to implement the Fee Award on similar grounds raised in its responses to complainant's Fee Petition. In her cross-appeal, complainant asserts that the AJ erred in adopting arbitrary hourly rates of $330 and $300 for A1 and A2, respectively.
Pursuant to 29 C.F.R. � 1614.501(e), complainant is entitled to an award of attorney's fees and costs associated with successfully prosecuting her reprisal claim. "A finding of discrimination raises a presumption of entitlement to an award of attorney's fees." 29 C.F.R. � 16l4.501(e)(i). The methodology to be used by the AJ for determining the appropriate amount in attorney's fees is well settled and agreed by the parties. The fee amount is determined by multiplying the reasonable hourly rate by the reasonable number of hours the attorney expended in litigating the successful claim. Otero v. Department of the Army, EEOC Appeal No 01A44064 (Oct. 28, 2005). 'There is a strong presumption that this amount represents the reasonable fee." 29 C.F.R. � 1614.501(c)(2)(ii)(B).
Complainant bears the burden of demonstrating that the hourly rate and the number of hours she claims in her petition are both reasonable. Hensley v. Eckerhart, 461 U.S. 424, 437 (1983). The reasonable hourly rate is the prevailing market rate in the relevant community for attorneys of similar experience in similar cases." Otero v. Department of the Army, EEOC Appeal No 01A44064 (Oct. 28, 2005). While the petitioning attorney need not explain in great detail how each minute of his or her time was expended, the attorney must sufficiently identify the subject matter of his or her time expenditure so that the court is able to assess the necessity of the hours expended. Id.
Reasonable Hourly Rate
In the Fee Award, the AJ concludes that "[b]ased on the information provided by the parties, the court's own observation and knowledge of the hourly billing rates charged by other civil rights attorneys in employment discrimination cases, the level of complexity this matter presented and the quality of representation afforded to complainant, a reasonable hourly rate for attorney Stein [A1] is $330 an hour, for attorney Singer [A2] is $300 an hour and for the law clerks is $90 an hour."
In his Fee Award, the AJ noted that A2's declaration does not contain any recent hourly rates federal courts have used to award attorney's fees and does not disclose any information on what he customarily charges per hour on employment discrimination cases that are not contingent fee cases. But, A2 did add that based on his "conversations with counsel, reviewing applications for fees by counsel and reviewing recent court opinions," attorneys of his and A2's experience and skill "routinely charge and are awarded fees in excess of $500 per hour." A1 did not include any information on the names of the other attorneys, their practice and the recent court opinions on fee awards using an hourly rate in excess of $500. The AJ also noted that A2's declaration (like A1's declaration) does not contain any recent hourly rates federal courts have used to award attorney's fees and does not disclose any information on what she customarily charges per hour on employment discrimination cases that are not contingent fee cases. Accordingly, the AJ concluded that both A1 and A2''s declarations lack sufficient information to support the rates they claim in the Fee Petition.
The AJ also noted that complainant submitted the declaration of a third attorney (A3), practicing in the community to support the claim that the hourly rates of $460 and $400 are "much lower than the market rate in federal civil litigation for attorneys of [A1 and A2's] experience and skills." A3 offered this opinion based on his "experience and upon [his] knowledge of fee awards and billing practices of other attorneys[.]" According to his declaration, A3 focuses his practice on police misconduct and multiple-plaintiff employment discrimination matters. The AJ noted that although A1 and A2 did not provide their typical hourly rate, A3 declared that his customary hourly rate was $550 an hour. A3 also declared that he had been awarded fees by the federal court at the rate of $365 per hour in l999.
The AJ finally stated that he disagreed with the agency's argument that complainant must provide specific information establishing the prevailing market rate for administrative litigation. The AJ concluded from his own familiarity with litigating and trying Title VII matters before the federal district court, that federal court bench trials are similar to the hearings before the EEOC. As such, the AJ concluded that examples of fees awarded in federal district court employment litigation are illustrative of the prevailing market rate.
Having said that, however, the AJ concluded that complainant failed to provide persuasive evidence to demonstrate that $460 and $400 are the prevailing market rates for attorneys of A1 and A2's experience and skills in Title VII cases involving a single plaintiff. The AJ found that A3's vague declaration is not helpful in setting the market rate as his practice is primarily in the area of multiple-plaintiff discrimination cases involving many disparate impact claims. Since complainant failed to provide the customary billing rate information or any information to demonstrate that A1 and A2 actually received attorney's fee awards at the $460 and $400 rate, he concludes that complainant failed to demonstrate that the rates of $460 and $400 are reasonable hourly rates for A1 and A2's work in a case of this nature.
The AJ also agreed with the agency and concludes that the case was not a complicated matter, but straight forward allegation of failure to promote based on complainant having previously filed an EEO case. The AJ also found that this case did not trigger any matters of first impression or any novel issues. Neither party relied on any scientific or statistical evidence or presented expert witnesses on liability or damages. However, the AJ did not use the $200 an hour rate suggested by the agency since it failed to demonstrate that $200 is the prevailing market rate in the Chicago area.
Having rejected the rates suggested by the parties, the AJ chose to "split" the difference between $200 and $460/$400, yielding an hourly rate of $330 an hour for A1 and $300 an hour for A2. The AJ conceded that his approach may appear arbitrary. However, the AJ conducted his own survey of a random sample3 of twelve attorneys who previously represented complainants before him. The responding attorneys were asked to provide their customary billing rates for Title VII cases and their years of experience. This survey showed that the billing rates range from $150 to $325 with the attorneys who have been practicing for only two years charging at the lower end of the range and attorneys who have been practicing for 30 years or more charging $325 an hour. Considering the nature of this case, the relief A1 and A2 were able to obtain for complainant, their extensive experience in litigating civil rights matters in various fora and the AJ's own survey, the AJ concluded that a reasonable rate to be used for calculating the lodestar is $330 an hour for A1 and $300 an hour for A2.
We agree with the AJ in finding that complainant failed to present sufficient evidence of her attorneys' reasonable hourly rate. See In National Association of Concerned Veterans v. Secretary of Defense, 28 FEP Cases 1134, (D.C. Cir. 1982) (holding that in fixing the prevailing hourly rate, an applicant is required to provide specific evidence of the prevailing community rate for the type of work which he seeks an award. Generalized "information and belief" affidavits from friendly attorneys presenting a wide range of hourly rates will not suffice.) See also, Palomares v. Department of Defense Dependent Schools, EEOC Appeal No. 01851328 (April 1, 1987).
We also find that the AJ's survey produced sufficient evidentiary support for his award of $330 and $300 per hour for A1 and A2, respectively. In addition, we do not find that the AJ abused his discretion in relying upon his own survey to obtain the necessary evidence of a reasonable hourly rate that both parties failed to provide. Accordingly, we affirm the AJ's findings with respect to this issue.4
Reasonable Number of Hours.
Based on the information provided by the parties, the level of complexity this matter presented and the AJ's own knowledge of the case file as well as the litigation history, the AJ concluded that: (a) 90.37 hours was a reasonable number of hours expended by A1; (b) 123.13 hours was a reasonable number of hours expended by A2; and (c) 24.10 hours by the law clerks.5 In his Fee Award, the AJ noted that complainant attached an itemization of the hours expended organized by the date, identity of the attorney or law clerk performing the task, summary of the task performed and the number of hours expended for the task described.
Complainant argues that all of her hours claimed in the Fee Petition are reasonable since two of the four claims of failure to promote are inextricably related to the successful reprisal claim. Complainant also asserts that her attorney was able to obtain her primary goal - a promotion to a supervisor position. However, complainant acknowledges in her Fee Petition that her claim in connection with Position 4 was not related to the successful claim and asserts that the total hours should be reduced by 6%.
The agency argues that the number of hours claimed by complainant should be significantly reduced. The agency asserts that complainant failed to provide detailed billing records, that some of the hours billed are not reimbursable, that a good portion of the hours were spent on the claims she lost and that some of the hours are excessive and redundant. The agency asserts that a reduction of the claimed hours by 75% is appropriate to account for A1 and A2 working on non-prevailing issues before June 28, 2005.
The AJ conducted a line-by-line analysis by considering the complexity of this case, the number of claims presented by complainant's complaint, the nature of the work performed by complainant's attorneys and law clerks as represented in their time sheet, the parties' various pleadings during the pre-hearing litigation, the arguments of the parties in their fee petition briefs, and the degree of specificity of complainant's Fee Petition to determine the reasonableness of the hours claimed. The AJ eliminated or reduced any hours reflected on the time sheet that appeared inconsistent, unsupported, excessive or related to the unsuccessful claims. The AJ agreed with complainant and held that the facts surrounding Positions 1-3 were relevant to proving the successful reprisal claim. However, discovering and presenting the facts surrounding the other selections is less time consuming than actually litigating those other non-selections. In fact, complainant's primary focus of her complaint appeared to have been on the non-selection of Position 1 rather than Position 2 (i.e., the claim on which she prevailed). Accordingly, the AJ concluded that the claimed hours must be reduced appropriately to reflect the time complainant's attorney spent on litigating the unsuccessful claims prior to July 11, 2005. The AJ also noted that the time sheets do not specify the exact hours A1 and A2 spent on litigating the unsuccessful claims. Under these circumstances, the AJ concluded that a reduction of certain claimed hours in the time sheet by 30% is reasonable.
We do not find that the AJ abused his discretion in his determination of reasonable hours expended. The fact that complainant did not prevail on every aspect of his complaints does not, in itself, justify a reduction in the hours reasonably expended where the claims are intertwined, and it would be impossible to segregate the hours involved in each claim. It is true that attorney's fees may not be recovered for work on unsuccessful claims. Hensley, 461 U.S. at 433. Courts have held that fee applicants should exclude time expended on "truly fractionable" claims or issues on which they did not prevail. See National Association of Concerned Veterans (NACV) v. Secretary of Defense, 675 F.2d 1319, 1337 n. 13 (D.C. Cir. 1982). Claims are fractionable or unrelated when they involve "distinctly different claims for relief that are based on different facts and legal theories." Hensley, 461 U.S. at 434-35. Thus, in cases where claims are distinctly different, "work on an unsuccessful claim cannot be deemed to have been expended in pursuit of the ultimate result achieved." Id. at 435 (citation omitted). However, in cases where a claim for relief involves "a common core of facts or will be based on related legal theories" a fee award should not be reduced simply because the plaintiff failed to prevail on every contention raised in the lawsuit. Id. "The hours spent on unsuccessful claims should be excluded in considering the amount of a reasonable fee only where the unsuccessful claims are distinct in all respects from the successful claims." See EEO MD-110, Ch. 11, Sect. 6 (A)(7) (citation omitted).
Here the unsuccessful claims at issue are not fractionable. Complainant's first three claims are based, at least in part, on a theory of race discrimination and reprisal. Many of the same individuals were involved in the events giving rise to both claims. Several witnesses testified concerning both claims. Perhaps most significantly, as the AJ concluded, complainant was retaliated against, as alleged in the second complaint, because she had complained about the events giving rise to the first complaint. It cannot be said that the claim on which complainant did not prevail is "distinct in all respects" from the claim on which she was successful. We conclude that no additional reimbursement will be disallowed because complainant was not successful on two of the first three claims. We also find that the AJ did not abuse his discretion in reimbursing the services of two attorneys. See Layman v. United States Postal Service, EEOC Appeal No. 01995568 (April 4, 2002); Coard v. Department of Justice, EEOC Appeal No. 0130222 (February 27, 2004).
Reasonable Costs
Courts have long recognized that reasonable out-of-pocket expenses incurred by an attorney which are normally charged to fee-paying clients are reimbursable as part of reasonable attorney's fees. Laffey v. Northwest Airlines, Inc., 746 F.2d 4, F.2d 4, 30 (D.C. Cir. 1984), cert. denied, 472 U.S. 1021 (1985); Thornberry v. Delta Air Lines, Inc., 25 E.P.D. 31,496 (N.D. Cal. 1980), aff'd, 676 F.2d 1240, 1244 (9th Cir. 1982); Northcross v. Board of Education of Memphis City Schools, 611 F.2d 624, 639 (6th Cir. 1979), cert. denied, 447 U.S. 911 (1980). Commission precedent requires that a petition seeking reimbursement of costs be supported by detailed documentation, including receipts. See, e.g., Canady v. Department of the Army, EEOC Request No. 05890226 (December 27, 1989).
The AJ noted that complainant submitted a summary of her costs in her Fee Petition and then supplemented her Fee Petition with "supporting documentation." The AJ then concluded that complainant is entitled to recover $1,663.04 in costs. Upon review of the record we find only $1,323.05 in costs supported by sufficient documentation. The record contains two bills from a court reporter service marked "paid" for transcription fees totaling $1,323.05. There are no other receipts or bills in the record to support additional costs which complainant seeks reimbursement. Therefore, we find that the AJ erred in awarding $1,663.04 in costs. Accordingly, we modify the awarded costs to $1,323.05.
CONCLUSION
For the reasons set forth herein above, we find that the AJ's: (1) Summary Judgment decision; (2) Finding of retaliation after a hearing; (3) award of non-pecuniary compensatory damages; and (4) award of attorney's fees are supported by substantial evidence. We find that the AJ's award of costs in excess of $1,323.05 is not supported by substantial evidence. Accordingly, the agency's Final Action is REVERSED, in part.
ORDER
Within thirty (30) calendar days from the date this decision becomes final, the agency is ordered to take the following remedial action:
1. The agency shall retroactively promote complainant to the position of GS-12 Supervisory Customs Entry Specialist, or a substantially similar position, effective the date SE2 was placed in that position.
2. The agency shall determine the appropriate amount of back pay with interest and other benefits due to complainant from the date SE2 was placed in the position at issue, pursuant to 29 C.F.R. � 1614.502, and tender that amount to complainant. 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. The calculation of back pay must be made from the date SE2 was selected for the position at issue, until the date of complainant's reinstatement, or, if complainant declines the reinstatement offer, from the date the SE2 was placed in the position, until the date that she declines the offer.
3. The agency shall pay complainant $5,000.00 in non-pecuniary compensatory damages.
4. The agency shall pay complainant $68,930.10 in attorney's fees and $1,323.05 in costs.
5. The agency shall consider taking disciplinary action against the management official who retaliated against complainant. The agency shall report its decision. 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.
6. The agency is directed to conduct training for the management officials involved herein regarding their responsibilities to with respect to discrimination on the basis of sex and reprisal under Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e et seq. The Commission does not consider training to be a disciplinary action.
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.
POSTING ORDER (G0900)
The agency is ordered to post at its Port of Chicago, Chicago, Illinois 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 tends to establish that:
1. The appellate decision involved a clearly erroneous interpretation of material fact or law; or
2. The appellate decision will have a substantial impact on the policies, practices, or operations of the agency.
Requests to reconsider, with supporting statement or brief, must be filed with the Office of Federal Operations (OFO) within thirty (30) calendar days of receipt of this decision or within twenty (20) calendar days of receipt of another party's timely request for reconsideration. See 29 C.F.R. � 1614.405; Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), 9-18 (November 9, 1999). All requests and arguments must be submitted to the Director, Office of Federal Operations, Equal Employment Opportunity Commission, P.O. Box 19848, Washington, D.C. 20036. In the absence of a legible postmark, the request to reconsider shall be deemed timely filed if it is received by mail within five days of the expiration of the applicable filing period. See 29 C.F.R. � 1614.604. The request or opposition must also include proof of service on the other party.
Failure to file within the time period will result in dismissal of your request for reconsideration as untimely, unless extenuating circumstances prevented the timely filing of the request. Any supporting documentation must be submitted with your request for reconsideration. The Commission will consider requests for reconsideration filed after the deadline only in very limited circumstances. See 29 C.F.R. � 1614.604(c).
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (T0900)
This decision affirms the agency's final decision/action in part, but it also requires the agency to continue its administrative processing of a portion of your complaint. You have the right to file a civil action in an appropriate United States District Court within ninety (90) calendar days from the date that you receive this decision on both that portion of your complaint which the Commission has affirmed and that portion of the complaint which has been remanded for continued administrative processing. In the alternative, you may file a civil action after one hundred and eighty (180) calendar days of the date you filed your complaint with the agency, or your appeal with the Commission, until such time as the agency issues its final decision on your complaint. If you file a civil action, you must name as the defendant in the complaint the person who is the official agency head or department head, identifying that person by his or her full name and official title. Failure to do so may result in the dismissal of your case in court. "Agency" or "department" means the national organization, and not the local office, facility or department in which you work. If you file a request to reconsider and also file a civil action, filing a civil action will terminate the administrative processing of your complaint.
RIGHT TO REQUEST COUNSEL (Z1199)
If you decide to file a civil action, and if you do not have or cannot afford the services of an attorney, you may request that the Court appoint an attorney to represent you and that the Court permit you to file the action without payment of fees, costs, or other security. See Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e et seq.; the Rehabilitation Act of 1973, as amended, 29 U.S.C. �� 791, 794(c). The grant or denial of the request is within the sole discretion of the Court. Filing a request for an attorney does not extend your time in which to file a civil action. Both the request and the civil action must be filed within the time limits as stated in the paragraph above ("Right to File A Civil Action").
FOR THE COMMISSION:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
May 17, 2007
__________________
Date
1 Due to a new data system, complainant's case has been re-designated with the above-referenced appeal number.
2 The Commission will not further address the claims pertaining to Positions 3 and 4 since these issues are not raised by either party on appeal.
3 The AJ concedes that the sampling was not statistically rigorous or in compliance with an accepted statistical sampling method.
4 We note that the AJ cites a United States District Court decision in support of his conclusion that the $90 hourly rate for the law clerks is reasonable on its face. See Flaherty v. Marchand, 284 F.Supp.2d 1056, 1066 (N.D. Ill., 2003) (holding that $90 hourly rate for "paraprofessionals" is deemed reasonable). In the absence of contrary evidence, we do not find an abuse of discretion by the AJ.
5 Complainant claimed 110 hours by A1, 172.85 hours by A2 and 34.6 hours by the law clerks in her Fee Petition.
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0720060051
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036