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.
---------------
------------------------------------------------------------
---------------
------------------------------------------------------------
2
0120113120
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120113120