Willie E. Harris, Complainant,v.Hilda L. Solis, Secretary, Department of Labor, Agency.

Equal Employment Opportunity CommissionDec 9, 2011
0120113120 (E.E.O.C. Dec. 9, 2011)

0120113120

12-09-2011

Willie E. Harris, Complainant, v. Hilda L. Solis, Secretary, Department of Labor, Agency.




Willie E. Harris,

Complainant,

v.

Hilda L. Solis,

Secretary,

Department of Labor,

Agency.

Appeal No. 0120113120

Agency No. CRC 09-11-054

DECISION

On June 17, 2011, Complainant filed an appeal from the Agency’s May 19,

2011, final decision concerning his equal employment opportunity (EEO)

complaint alleging employment discrimination in violation of Title VII

of the Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. §

2000e et seq. and the Age Discrimination in Employment Act of 1967

(ADEA), as amended, 29 U.S.C. § 621 et seq. The Commission deems the

appeal timely and accepts it pursuant to 29 C.F.R. § 1614.405(a).

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked

as a GS-14 Grants Management Specialist at the Agency’s Employment and

Training Administration facility in Washington, D.C. On April 14, 2009,

Complainant filed an EEO complaint alleging that the Agency discriminated

against him on the bases of race (African-American), sex (male), color

(Black), age (60), and reprisal (prior EEO activity), when he applied

but was not selected for the GS-1101-15 Supervisory Grants Management

Specialist position advertised under Vacancy Announcement ETA-08-126MS.

At the conclusion of the investigation, the Agency provided Complainant

with a copy of the report of investigation and notice of his right

to request a hearing before an EEOC Administrative Judge (AJ).

In accordance with Complainant’s request, the Agency issued a final

decision pursuant to 29 C.F.R. § 1614.110(b) on March 16, 2010. The

decision concluded that Complainant established a prima facie case

of discrimination based on his race, color, and age. The Agency,

however, determined that Complainant did not establish his prima facie

of sex-based discrimination, noting that the Selectee was also male.

Finally, the Agency determined that Complainant did not establish a causal

connection between his prior EEO activity and the selection challenged.

The Agency’s final decision then determined that the Agency articulated

legitimate, nondiscriminatory reasons for the selection of the Selectee.

Finally, the Agency concluded that Complainant did not establish that

the Agency subjected him to discrimination as alleged.

Complainant appealed the Agency’s FAD dated March 16, 2010. In Harris

v. Dep’t of Labor, EEOC Appeal No. 0120102099 (Sept. 21, 2010)

request for reconsideration denied. EEOC Request No. 0520110064 (Dec. 20,

2010), the Commission determined that Complainant established his prima

facie case of discrimination based on age, race, and color, in that the

Selectee was a younger, white male and not a member of Complainant’s

protected groups. The Commission then found that the Agency failed

to articulate legitimate, nondiscriminatory reasons for the selection

of the Selectee over Complainant. The Commission noted that the Agency

failed to meet its burden of production in that the Agency offered very

little by way of specific explanation why Complainant was not selected.

The Commission held that the Agency’s witnesses who were not involved

in the selection decision averred that they believed that the Selectee

was the best technically qualified person for the position, there was

no reliable explanation for not selecting Complainant. Further, the

Commission noted that no documentation was offered to support the belief.

Therefore, the Commission found that Complainant prevailed on his claim

of discrimination based on his race, color and age.

The matter was remanded for the Agency to take corrective action.

Among other things, the Agency was ordered to conduct a supplemental

investigation as to Complainant’s claim for compensatory damages and

to issue a decision determining the amount of damages to be awarded to

Complainant. Further, the Agency was ordered to provide Complainant’s

attorney (Attorney) who represented him with attorney’s fees and costs

associated with the processing of the compliant.

On February 14, 2011, the Agency submitted its request to Complainant

and the Attorney to provide the Agency with supplemental evidence to

support an award of compensatory damages. Complainant provided the

Agency with medical documentation. In addition, the Attorney noted

that he had provided the Agency with a document entitled “Settlement

of Services” providing a list of hours and services provided totaling

94.0 hours at a rate of $310.00 per hour, for a total of $29,140.00

Based on the submissions provided by Complainant and the Attorney,

the Agency issued its decision on May 19, 2011. As to Complainant’s

claim for compensatory damages, the Agency found that Complainant had not

shown that he had incurred any pecuniary losses. As to non-pecuniary

losses, Complainant indicated that he suffered from the effects of

severe emotional distress, including depression, hostility, anger,

loss of self-esteem, mental anguish, and humiliation. In addition,

Complainant provided medical documentation showing several physical

conditions including diabetes, high blood pressure, loss of sleep and

loss of enjoyment of life. Complainant also provided documentation

regarding his diagnosis of adjustment disorder with depressive mood which

began in 2000. Complainant had emotional distress due to the loss of

several close individuals which caused a great deal of emotional distress

coupled with his experiences in Vietnam and Desert Storm. As of May 21,

2010, Complainant was on several different medications. Based on the

information provided by Complainant, the Agency found that Complainant

failed to provide how he incurred any losses due to the Agency’s

discrimination. The Agency noted that Complainant had pre-existing

medical conditions which Complainant failed to provide any evidence

show that his conditions were caused or worsened by the discrimination.

Based on the lack of information connecting Complainant’s alleged

harm and the discrimination, the Agency awarded Complainant $2,000 in

non-pecuniary damages.

Finally, the Agency turned to the Attorney’s fees and costs.

The Agency noted that the Attorney only provided a statement of hours

worked, and did not provide any submission regarding the reasonableness

of his requested hourly rate of $310. However, the Agency, relying

on past Commission cases applying the “Laffey matrix,” found that

the $310 rate was appropriate in this case. The Agency then turned to

the Attorney’s number of hours provided. The Agency noted that the

claim for fees involved dates of service as far back as August 30, 2005.

The Agency indicated that it only needed to provide for fees incurred

after the commencement of the informal complaint process which was

February 12, 2009. As such, the Agency found that only 36.0 of the 94.0

hours were accrued after February 12, 2009, for a total of $11,160.00 in

Attorney’s fees. The Agency noted that several of the charges were

vague or appeared to be excessive. Therefore, the Agency reduced the

number of hours by 15% for a total of 30.6 hours at a rate of $310 for

a total award of $9,486.00.

This appeal followed without comment by Complainant. The Agency requested

that the Commission affirm its decision regarding compensatory damages

and fees and costs for the Attorney.

ANALYSIS AND FINDINGS

As this is an appeal from a decision issued without a hearing, pursuant

to 29 C.F.R. § 1614.110(b), the Agency's decision is subject to de

novo review by the Commission. 29 C.F.R. § 1614.405(a). See Equal

Employment Opportunity Management Directive for 29 C.F.R. Part 1614,

at Chapter 9, § VI.A. (November 9, 1999) (explaining that the de novo

standard of review “requires that the Commission examine the record

without regard to the factual and legal determinations of the previous

decision maker,” and that EEOC “review the documents, statements,

and testimony of record, including any timely and relevant submissions

of the parties, and . . . issue its decision based on the Commission’s

own assessment of the record and its interpretation of the law”).

Legal Standards for an Award of 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 the

agency, the limit of liability for future pecuniary and non-pecuniary

damages is $300,000. Id.

The particulars of what relief may be awarded, and what proof is necessary

to obtain that relief, are set forth in detail in EEOC Notice No. 915.002,

Compensatory and Punitive Damages Available Under Section 102 of the

Civil Rights Act of 1991 (July 14, 1992). Briefly stated, 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. Dep’t 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. EEOC Notice No. N 915.002 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.

In Carle v. Dep’t of the Navy, the Commission explained that

“objective 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. The complainant could

also submit documentation of medical or psychiatric treatment related to

the effects of the discrimination. Id. Non-pecuniary damages must be

limited to the sums necessary to compensate the injured party for the

actual harm and should take into account the severity of the harm and

the length of the time the injured party has suffered from the harm.

Carpenter v. Dep’t of Agric., EEOC Appeal No. 01945652 (July 17, 1995).

Calculation of Damages Payable

Pecuniary

We note that Complainant failed to provide evidence of any pecuniary

losses. As such, we affirm the Agency’s final decision finding that

Complainant had not shown that he incurred any pecuniary losses.

Non-pecuniary

We note that the Agency found that Complainant established a nexus between

the discriminatory selection process and specific harm incurred. A review

of Complainant’s submission indicates that he has been diagnosed with

several medical conditions including post tramatic stress disorder,

depression, and other physical and emotional conditions. However,

the documents provided by Complainant show that he has been under the

care of health care professionals for years due to his experiences in

Vietnam and Desert Storm, as well as other personal situations involving

the loss of his wife, mother, two brothers, a nephew and a close friend.

Complainant’s medical information also contained references from medical

professionals that these pre-existing medical conditions worsened with

hostility in the workplace.

Taking into account the evidence of non-pecuniary damages submitted by

Complainant, we find his request for $300,000 to be excessive. Rather,

the Commission finds that Complainant is entitled to non-pecuniary damages

in the amount of $ 10,000. This amount takes into account the severity

of the harm suffered1 that is attributable to the discrimination,

and is consistent with prior Commission precedent. See McManaway

v. U.S. Postal Serv., EEOC Appeal No. 01993233 (August 23, 2002)

(awarding Complainant $10,000 for experienced aggravation, frustration,

humiliation, marital strain, and financial stress due to non-selection);

Williams v. Dep’t of Transp., EEOC Appeal No. 01A10856 (July 6, 2001)

(awarding $9,000 where Complainant found to have experienced anxiety,

depression, sleeplessness, marital and family problems, and weight

loss and noting that there were other contributing factors); Anderson

v. Dep’t of Transp., EEOC Appeal No. 07A10058 (January 21, 2003),

request for reconsideration denied, EEOC Request No. 05A30503 (April 7,

2003) (providing $10,000 in pecuniary damages for Complainant who was not

selected and felt worthless, and experienced self-doubt, abdominal pain,

headaches, sleep disturbances, and suicidal thoughts).

Atttorney’s Fees and Costs

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).

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 Equal Employment Opportunity Management

Directive for 29 C.F.R. Part 1614 (EEO MD-110), 11-7. (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. Id. The party seeking to adjust the lodestar, either up or down,

has the burden of justifying the deviation. Id. at p. 11-8.

Upon review, we find that, based on the agency’s spread sheet, the

Agency properly reduced the number of hours to those hours of service

provided following the initial informal contact by Complainant in the

instant matter which was on February 12, 2009. Therefore, the hours

of service were properly reduced to 36.0 hours. However, we find that

the Agency has not shown that the fees should be further adjusted.

Accordingly, we modify the Agency’s award of Attorney’s fees to

$11,160.00 in fees for the time period from March 17, 2010 to November 3,

2010. Therefore, the Agency is ordered to pay $ 1,674.00, the difference

between the amount awarded in this decision and the amount already paid

by the Agency.

CONCLUSION

Accordingly, after a careful review of the record, the Commission modifies

Complainant’s request for Compensatory Damages and Attorney’s fees

and costs and remand this case to the Agency to take remedial action in

accordance with the Order below.

ORDER

The Agency shall, within forty-five (45) calendar days of the date this

decision becomes final:

1. Issue Complainant a check in the amount of $8,000, the difference

between the amount awarded in this decision and the amount already paid

by the Agency.

2. Issue a check to the Attorney in the amount of $ 1,674.00, the

difference between the amount awarded in this decision and the amount

already paid by the Agency.

The agency shall submit a report of compliance, as provided in the

statement entitled “Implementation of the Commission’s Decision.”

The report shall include documentary evidence that the corrective action

has been implemented

IMPLEMENTATION OF THE COMMISSION’S DECISION (K0610)

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 77960, Washington, DC

20013. 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 (M0610)

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), at 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

77960, Washington, DC 20013. 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 (T0610)

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 (Z0610)

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 from the Court that

the Court appoint an attorney to represent you and that the Court also

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 with

the Court 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

December 9, 2011

__________________

Date

1 We note that there is no indication in the record of the duration of

the harm.

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U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Office of Federal Operations

P.O. Box 77960

Washington, DC 20013

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