0720060034
01-31-2007
Walter Holt, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Walter Holt,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 07200600341
Hearing No. 110-2005-00311X
Agency No. 4H-300-0320-04
DECISION
Following its December 15, 2005 final order, the agency filed an appeal.
On appeal, the agency requests that the Commission affirm its rejection
of an EEOC Administrative Judge's (AJ) finding of discrimination in
violation of Title VII of the Civil Rights Act of 1964 (Title VII),
as amended, 42 U.S.C. � 2000e et seq. For the following reasons, the
Commission REVERSES the agency's final order.
BACKGROUND
At the time of events giving rise to this complaint, complainant worked
as the Postmaster (EAS-22) at the agency's facility in Lilburn, Georgia.
In 2004-2005, complainant applied for a total of three positions
as Postmaster of agency facilities located closer to his home in
Douglasville, Georgia. Complainant applied for a position as Postmaster,
EAS-22, in Carrollton, Georgia, advertised as Vacancy Announcement Number
04-046. After a review of the applications submitted, complainant and
four other candidates were interviewed by a Review Committee2 in order
to narrow the number of candidates to the best three (the number of final
candidates requested by the selecting official). Complainant was notified
by letter dated August 30, 2004, that he was not a final candidate for
the position.
In December 2004, complainant also applied for the position of Postmaster,
EAS-22, in Riverdale, Georgia, under Vacancy Announcement 04-084.
No candidates were interviewed by the Review Committee. By memorandum
dated January 28, 2005, four candidates were recommended for selection by
the Review Committee. Again, complainant's application was not forwarded
to the selecting official.
Complainant also applied for the position of Postmaster, EAS-22, for the
agency facility at Douglasville, Georgia, under Vacancy Announcement
number 05-001, which announcement was issued on January 18, 2005, and
closed on February 2, 2005. Complainant lives in Douglasville and it is
the facility nearest his home. As he had for the prior two vacancies,
complainant submitted the same application (agency Form 991) for the
Douglasville position. The Review Committee for the Douglasville position
consisted of the same three members as the committee that reviewed the
applications for the Carrollton position. By memorandum dated February
17, 2005, three candidates were recommended to the selecting official
for consideration by the Review Committee. Complainant's name was not
among the three referred for selection for the Douglasville Postmaster
position.
Complainant filed a complaint of discrimination on December 29, 2004,
alleging that he was discriminated against on the bases of race (Black),
sex (male), age (59), and in reprisal for prior protected EEO activity
under Title VII and the Age Discrimination in Employment Act of 1967 when
he was not selected for the Carrollton position. Thereafter, complainant
amended his complaint to include the two additional non-selections
(Riverdale and Douglasville). The agency accepted and investigated the
following claims:
1. On September 2, 2004, complainant learned that he was not selected
for the Postmaster position at Carrollton, Georgia.
2. On January 28, 2005, complainant learned that he was not selected
for the Postmaster position at Riverdale, Georgia.
3. On February 23, 2005, complainant learned that he was not referred
to the selecting official for the Postmaster position in Douglasville,
Georgia.
At the conclusion of the investigation, complainant was provided with a
copy of the report of investigation and notice of his right to request
a hearing before an AJ. Complainant requested a hearing, the AJ held a
hearing,3 and issued a decision on November 3, 2005. In his decision, the
AJ found that complainant did not establish discrimination with respect
to claims (1) and (2) on any basis. The AJ found no age discrimination in
claim (3). The AJ found that complainant proved that he was subjected to
reprisal with respect to claim (3) when his application was not referred
to the selecting official for consideration for the postmaster position
in Douglasville, Georgia. The AJ ordered the agency to pay complainant
$9,000 in compensatory damages and $7,545.35 in attorney's fees, which
represents one-half of the amount requested in complainant's fee petition.
The AJ reduced the award of attorney's fees after consideration of the
fees requested and in light of complainant's recovery upon only one of
three claims in his complaint.4
In its December 15, 2005 decision, the agency reasoned that with respect
to claim (3), the AJ's decision involved an erroneous interpretation
of material fact. Specifically, the agency found that complainant's
application for the position in Douglasville was considered by a Review
Board, which found that his application was incomplete. The agency
believes this reason to be legitimate and nondiscriminatory.
On appeal, the agency requests that the AJ's discrimination finding be
reversed and the remedies ordered not be implemented. In the event that
the Commission upholds the finding of discrimination, the agency requests
that the AJ's $9,000 award of compensatory damages be reduced. The agency
does not dispute the AJ's award of $7,545.35 in attorney's fees.
Complainant appealed the AJ's decision with respect to the award of
attorney's fees. Complainant argues that no reduction in attorney's
fees is appropriate given the nature of the three non-selection claims,
the common elements of each claim, and the common management officials
involved. Complainant otherwise argues on appeal that the AJ's decision
with respect to the finding of discrimination is well-supported by
the evidence and that the award of compensatory damages is consistent
with prior Commission awards for similar injuries. Complainant is not
appealing the findings of no discrimination. Thus, this decision will
only consider the finding of retaliation in claim 3 and the remedies
for that finding. Claims 1 and 2 and the claim of age discrimination
in claim 3 are not at issue in this appeal.
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.
An AJ's credibility determination based on the demeanor of a witness or
on the tone of voice of a witness will be accepted unless documents or
other objective evidence so contradicts the testimony or the testimony so
lacks in credibility that a reasonable fact finder would not credit it.
See EEOC Management Directive 110, Chapter 9, � VI.B. (November 9, 1999).
Complainant can establish a prima facie case of reprisal by presenting
facts that, if unexplained, reasonably give rise to an inference
of discrimination. Shapiro v. Social Security Admin., EEOC Request
No. 05960403 (Dec. 6, 1996) (citing McDonnell Douglas Corp. v. Green,
411 U.S. 792, 802 (1973)). Specifically, in a reprisal claim, and in
accordance with the burdens set forth in McDonnell Douglas, Hochstadt
v. Worcester Foundation for Experimental Biology, 425 F. Supp. 318, 324
(D. Mass.), aff'd, 545 F.2d 222 (1st Cir. 1976), and Coffman v. Department
of Veteran Affairs, EEOC Request No. 05960473 (November 20, 1997), a
complainant may establish a prima facie case of reprisal by showing that:
(1) he or she engaged in a protected activity; (2) the agency was aware
of the protected activity; (3) subsequently, he or she was subjected
to adverse treatment by the agency; and (4) a nexus exists between the
protected activity and the adverse treatment. Whitmire v. Department
of the Air Force, EEOC Appeal No. 01A00340 (September 25, 2000).
To prevail in a disparate treatment claim such as this, complainant
must satisfy the three-part evidentiary scheme fashioned by the Supreme
Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). He
must generally establish a prima facie case by demonstrating that
he was subjected to an adverse employment action under circumstances
that would support an inference of discrimination. Furnco Construction
Co. v. Waters, 438 U.S. 567, 576 (1978). The prima facie inquiry may be
dispensed with in this case, however, since the agency has articulated
legitimate and nondiscriminatory reasons for its conduct. See United
States Postal Service Board of Governors v. Aikens, 460 U.S. 711,
713-17 (1983); Holley v. Department of Veterans Affairs, EEOC Request
No. 05950842 (November 13, 1997). To ultimately prevail, complainant must
prove, by a preponderance of the evidence, that the agency's explanation
is a pretext for discrimination. Reeves v. Sanderson Plumbing Products,
Inc., 530 U.S. 133, 120 S.Ct. 2097 (2000); St. Mary's Honor Center
v. Hicks, 509 U.S. 502, 519 (1993); Texas Department of Community
Affairs v. Burdine, 450 U.S. 248, 256 (1981); Holley v. Department of
Veterans Affairs, EEOC Request No. 05950842 (November 13, 1997); Pavelka
v. Department of the Navy, EEOC Request No. 05950351 (December 14, 1995).
Reprisal
We find the AJ's determination that complainant was subjected to
reprisal is supported by substantial evidence. Complainant states,
without rebuttal, that he submitted the same application for all three
positions at issue. The record shows that complainant's application
was sufficient to garner an interview by the Carrollton Review Committee
when the panel could not narrow the field of candidates as they desired,
without conducting interviews. The AJ found that the "same panel in
Carrollton referred [complainant] in for an interview and did not refer
[complainant] for a interview the second time around [Douglasville
vacancy] after they became aware of this EEO complaint." As noted
by the AJ, the brief comments offered by these same members of the
Review Committee for the Douglasville position describe complainant's
application only as "incomplete." The AJ found that nothing was missing
in complainant's application. The evidence that complainant's application
for the Douglasville position became somehow less than complete was
not believable to the AJ.
We find that substantial evidence supports the AJ's determination
that reprisal motivated the decision of the Review Committee for the
Douglasville position whose members, at the time of the Douglasville
selection process, were aware that complainant had initiated the EEO
process with respect to the Carrollton position. We find that the AJ's
determination that the agency's reasons for not referring complainant's
application to the selecting official for consideration with respect to
the Douglasville position were pretextual and that discrimination based on
reprisal was the real reason complainant's application was not referred,
is supported by substantial evidence of record.
Compensatory damages
Pursuant to Section 102(a) of the Civil Rights Act of 1991, a complainant
who establishes his or her claim of unlawful discrimination may receive,
in addition to equitable remedies, compensatory damages for past and
future pecuniary losses (i.e., out of pocket expenses) and non-pecuniary
losses (e.g., pain and suffering, mental anguish). 42 U.S. C. �
1981a(b)(3). For an employer with more than 500 employees, such as this
agency, the limit of liability for future pecuniary and non-pecuniary
damages is $300,000.00. Id. In West v. Gibson, 527 U.S. 212 (1999),
the Supreme Court held that the Commission has the authority to award
compensatory damages in the federal sector EEO process.
The particulars of what relief may be awarded, and what proof is necessary
to obtain that relief, are set forth in detail in EEOC's Enforcement
Guidance, Compensatory and Punitive Damages Available Under Section
102 of the Civil Rights Act of 1991 (July 14, 1992) (Guidance). Briefly
stated, the complainant must submit evidence to show that the agency's
discriminatory conduct directly or proximately caused the losses for
which damages are sought. Id. at 11-12, 14; Rivera v. Department of
the Navy, EEOC Appeal No. 01934157 (July 22, 1994). The amount awarded
should reflect the extent to which the agency's discriminatory action
directly or proximately caused harm to the complainant and the extent
to which other factors may have played a part. See Guidance at 11- 12.
The amount of non-pecuniary damages should also reflect the nature and
severity of the harm to the complainant, and the duration or expected
duration of the harm. Id. at 14.
We note that for a proper award of non-pecuniary damages, the amount of
the award should not be "monstrously excessive" standing alone, should
not be the product of passion or prejudice, and should be consistent with
the amount awarded in similar cases. See Ward-Jenkins v. Department of
the Interior, EEOC Appeal No. 01961483 (March 4, 1999) (citing Cygnar
v. City of Chicago, 865 F.2d 827, 848 (7th Cir. 1989)).
In Carle v. Department of the Navy, the Commission explained that evidence
of non-pecuniary damages could include a statement by the complainant
explaining how he or she was affected by the discrimination. EEOC Appeal
No. 01922369 (January 5, 1993). Statements from others, including family
members, friends, and health care providers could address the outward
manifestations of the impact of the discrimination on the complainant. Id.
A complainant could also submit documentation of medical or psychiatric
treatment related to the effects of the discrimination. Id. However,
evidence from a health care provider is not a mandatory prerequisite
to establishing entitlement to non-pecuniary damages. See Sinnott
v. Department of Defense, EEOC Appeal No. 01952872 (September 19, 1996).
The AJ found that complainant "suffered embarrassment, loss of sleep,
headaches, weight gain, and moodiness for a beginning early February
until now . . ." We find the award of $9,000 in non-pecuniary,
compensatory damages to be appropriate under the circumstances.
We find this amount is appropriate even taking into account that
complainant may have had other factors (death of spouse, imprisonment
of daughter, other nonselections in claim 1 and 2) that contributed
to his reported harm. The Commission has awarded similar amounts to
persons with similar injuries. See McManaway v. United States Postal
Service, EEOC Appeal No. 01993233 (August 23, 2002) ($10,000 awarded
in non-pecuniary, compensatory damages in non-selection case where
complainant experienced aggravation, frustration, humiliation, marital
strain, and financial stress); Thompson v. United States Postal Service,
EEOC Appeal No. 01A02660 (December 30, 2002), request for reconsideration
denied, EEOC Request No. 05A30433 (March 20, 2003) ($10,000 awarded in
non-pecuniary, compensatory damages where complainant was humiliated,
embarrassed, and had headaches and difficulty sleeping).
Attorney's fees and costs
Attorney's fees are computed by determining the lodestar, i.e., the
number of hours reasonably expended multiplied by a reasonable hourly
rate. 29 C.F.R. � 1614.501(e)(2)(ii)(B); Equal Employment Opportunity
Commission Management Directive (MD) 110 at 11-5 (Nov. 9, 1999). All
hours reasonably spent in processing the complaint are compensable, and
the number of hours should not include excessive, redundant or otherwise
unnecessary expenditures of time. See MD 110 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. See MD-110 at 11-6.
The Commission has held that one method of addressing the appropriate
amount of attorney's fees when a complainant is not completely successful
is to take a percentage across-the-board reduction of compensable time
billed. Blinick v. Department of Housing and Urban Development, EEOC
Appeal No. 07A20079 (February 3, 2004). Even if complainant did not
prevail on every aspect of his complaint, that does not, by itself,
justify a reduction in the hours expended where the successful and
unsuccessful claims are closely intertwined. Id. "Claims are fractionable
or unrelated when they involve distinctly different claims for relief that
are based on different facts and legal theories." Id. In the instant
complaint, the Commission finds that complainant did not prevail on two
of the non-selection claims or on the basis of age in the third claim.
Furthermore, claims 1 and 2, while similar to claim 3, did involve some
different facts from claim 3. We find that the reduction of fees by 50%
by the AJ was warranted in the instant case. See Cano v. Department
of Homeland Security, EEOC Appeal No. 07A40081 (Aug. 2, 2006). Thus,
the AJ's award of $7,545.35 in attorney's fees and costs was appropriate.
We therefore REVERSE the agency's final decision. We REMAND the matter
to the agency to implement the AJ's order, as slightly modified herein.
ORDER
The agency is ordered to take the following remedial action:
1. Within 30 days of the date this decision becomes final, the agency
shall pay complainant the sum of $9,000.00 for compensatory damages for
his reprisal claim under Title VII.
2. Within 30 days of the date this decision becomes final, the
agency shall pay the sum of $7,545.35 to complainant in attorney's fees.
3. Within 180 days of the date this decision becomes final,
the agency shall train responsible agency officials concerning the
identification, prevention and correction of reprisal and the agency's
duties to ensure that similar violations do not occur.
4. The agency shall consider taking disciplinary action against the
responsible agency officials who were responsible for making the agency's
decision in this matter. If the agency decides to take disciplinary
action, it shall identify it in a compliance report the action taken.
If the agency decides not to take disciplinary action, it shall set
forth in its compliance report the reason(s) for its decision not to
impose discipline.
The agency shall send evidence that they have complied with provisions
1 - 4 of this Order to the Compliance Officer as referenced herein.
POSTING ORDER (G0900)
The agency is ordered to post at its Douglasville, Georgia 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 (R0900)
This is a decision requiring the agency to continue its administrative
processing of your complaint. However, if you wish to file a civil
action, you have the right to file such action in an appropriate United
States District Court within ninety (90) calendar days from the date
that you receive this decision. In the alternative, you may file a
civil action after one hundred and eighty (180) calendar days of the date
you filed your complaint with the agency, or filed your appeal with the
Commission. If you file a civil action, you must name as the defendant
in the complaint the person who is the official agency head or department
head, identifying that person by his or her full name and official title.
Failure to do so may result in the dismissal of your case in court.
"Agency" or "department" means the national organization, and not the
local office, facility or department in which you work. Filing a civil
action will terminate the administrative processing of your complaint.
RIGHT TO REQUEST COUNSEL (Z1199)
If you decide to file a civil action, and if you do not have or cannot
afford the services of an attorney, you may request that the Court appoint
an attorney to represent you and that the Court permit you to file the
action without payment of fees, costs, or other security. See Title VII
of the Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e et seq.;
the Rehabilitation Act of 1973, as amended, 29 U.S.C. �� 791, 794(c).
The grant or denial of the request is within the sole discretion of
the Court. Filing a request for an attorney does not extend your time
in which to file a civil action. Both the request and the civil action
must be filed within the time limits as stated in the paragraph above
("Right to File A Civil Action").
FOR THE COMMISSION:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
January 31, 2007
__________________
Date
1 Due to a new data system, the Commission has redesignated the instant
case with the above referenced appeal number.
2 The panel reviewing applications for all three positions at issue in
complainant's complaint is alternately referred to as a Review Board or
panel.
3 Complainant withdrew the bases of race and sex from his claims prior
to the commencement of the hearing.
4 We note that the AJ did not order complainant placed into the
position at issue or otherwise order the selection to be reconsidered.
At the hearing, complainant stated that he did not want such a remedy.
On appeal, the only remedy complainant challenges is the denial of a
portion of the requested attorney's fees.
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0720060034
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
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