EEOC Appeal No. 0720160008
08-03-2016
Cletus W. v. Dep't of the Treasury
U.S. Equal Employment Opportunity Commission (E.E.O.C.)
Office of Federal Operations
* * * CLETUS W, COMPLAINANT,
v.
JACOB J. LEW, SECRETARY, DEPARTMENT OF THE TREASURY (BUREAU OF ENGRAVING AND PRINTING), AGENCY.
Appeal No 0720160008
Hearing No. 570-2011-00764X
Agency No. BEP-11-0328-F
August 3, 2016
DECISION
Following its November 18, 2015 final order, the Agency filed a timely appeal which the Commission accepts 29 C.F.R. � 1614.405(a). On appeal, the Agency requests that the Commission affirm its rejection of a U.S. Equal Employment Opportunity Commission (EEOC or Commission) 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. and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq. The Agency also requests that the Commission affirm its rejection of the relief ordered by the AJ. For the following reasons, the Commission REVERSES the Agency's final order, in part.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as the Acting, Assistant Foreman, Electrician in the Bureau of Engraving and Printing (BEP), Office of Facilities Support facility in Washington, DC. On March 2, 2011, Complainant filed an EEO complaint alleging that the Agency discriminated against him on the bases of race (African-American), color (black), and age (56) when, on February 17, 2011, he was not selected for the position of Electro-Machinist (EM) Trainee, WE-2006-UNCL, under Vacancy Announcement No. 2011-015 for the EM Trainee Program.2
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). Complainant timely requested a hearing. The AJ held a hearing on April 28 and 29, 2015. A decision was issued on October 22, 2015. The Agency subsequently issued a final order rejecting the AJ's finding that Complainant was subjected to discrimination as alleged.
AJ's FINDINGS OF FACT
In late 2010, approximately 60 percent of the Bureau's EMs were at or approaching retirement age. In light of the impending anticipated retirement-related attrition, the Chief, Office of Operations and Support (SO) determined, in consultation with the Division Supervisor (DS), that it would be necessary to announce a class of vacancies for the EM Trainee Program. A BEP human resources representative (HR) prepared a draft vacancy announcement for SO and DS's review. The BEP's Office of Human Resources (OHR) posted the vacancy announcement for the EM Trainee Program on January 6, 2011. The announcement stated that "[a]pplicants must have 4 years of equivalent training as a Machinist and meet the requirements of the position to be filled." The OHR received 16 applications for the eight available openings in the EM Trainee Program, including Complainant's. Due to the highly technical nature of the positions, SO selected a panel of subject matter experts to review the applications and determine those who were best qualified, in accordance with the BEP's Promotion and Internal Replacement Policy.3
The ranking panel was comprised of (1) RP1, Assistant Supervisor, EM Shop (African-American, 52 years old); (2) RP2, Foreman, Office of Product Development (Caucasian, 65 years old); and (3) RP3, Assistant Foreman, EM Shop (Caucasian male, 55 years old) Members of the ranking panel, in conjunction with the BEP's OHR, developed a ratings schedule based on their knowledge of the EM Trainee Program, assigning point values to each of five knowledge, skill, and ability (KSA) factors to be applied in evaluating and distinguishing each candidate. This ranking panel established a cut-off score of 15 which generated nine best qualified candidates.
The KSA factors included: (1) ability to interpret domestic and foreign blueprint and schematics, manufacturers' maintenance instruction sheets, electrical systems, assembly drawings, diagrams, etc.; (2) knowledge of electrical, electronic, and mechanical installation, maintenance, and repair procedures for industrial equipment; (3) skill in the use of hand tools, mechanical measuring instruments, power shop tools, and electrical equipment such as ammeters, voltmeters, tube testers, oscilloscopes, integrated circuit testers, etc.; (4) the ability to systematically analyze automated equipment functions, devise repair procedures, and perform expeditious repairs with a minimum amount of present supervision in present trade; and (5) knowledge of interaction among the integrated and diverse systems (i.e., electrical, electronic, mechanical, hydraulic, and pneumatic) that make up highly automated printing and printing support.
The ranking panel members evaluated each candidate based on their application submissions, assigning each applicant a score reflecting how their stated experience satisfied each of the five KSA factors. Once the ranking panel determined those best-qualified applicants, HR provided SO with a "Certificate of Eligible" list (COE) with nine best qualified applicants out of 16 applicants. According to HR's testimony, SO rejected the first list of best qualified and instructed the OHR to lower the cutoff score in order to send her more than nine best qualified applicants.4 OHR thereafter lowered the cutoff from 15 points to nine points which increased the number of applicants that were forwarded to SO from nine to 15. Complainant received the 5th highest score from the ranking panel. SO reviewed the materials pertaining to the 15 applicants, but did not conduct any interviews prior to making her selections.5
AJ'S FINDINGS AND CONCLUSIONS
The AJ concluded that the Agency's articulated legitimate, non-discriminatory rationale for its decision not to select Complainant for the EM Trainee program was a pretext for age and race discrimination. Specifically, the AJ notes in her decision that the Agency did not hire an African-American in Complainant's age bracket. In addition, the AJ found procedural anomalies and missing records. Specifically, the AJ notes that past EM Trainee Program vacancy announcement job qualifications included only machinists and electricians. However, the selecting official (SO) elected to expand the scope of the job qualifications for the EM Trainee Program vacancy announcement to include any craft employee with mechanical experience. The decision to expand was based on SO and DS's inexplicable perception that there were insufficient internal candidates with machinist experience. The expansion of the announcement allowed for the selection of individuals will less experience and qualification than Complainant to be selected, including a plumber (SE8) who did not possess a machinist or electrical background.
The AJ also concluded that the original COE was not produced by the Agency but that the testimonial evidence established that Complainant received the fifth highest score from the expert ranking panel. Additionally, the AJ notes that ranking panel member RP1, Assistant Supervisor, EM Shop (African-American male/52 years of age) testified that he initially assigned Complainant a score of 22, but later changed it to a score of 19 for reasons he could not explain.
In addition to changing the qualification requirements of the position without a reasonable justification, the AJ concludes that SO's justification for not selecting Complainant for the EM Trainee Program (i.e., his grammatical and typographical errors in his resume) is without credence and contradicts her testimony that the positions were highly technical in nature requiring subject matter experts to determine those who were best qualified. The AJ also concludes that contrary to SO's concern that Complainant did not possess the ability to successfully complete the EM Trainee Program based on the grammatical errors in his application package, the evidence in the record supports the finding that the Agency provided significant support to its trainees and DS indicated that no one had ever failed the program for being unsuccessful in the classroom component.
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, at � VI.B. (Aug. 5, 2015).
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, non-discriminatory reasons for its conduct.6 See U.S. Postal Serv. Board of Governors v. Aikens, 460 U.S. 711, 713-17 (1983); Holley v. Dep't of Veterans Affairs, EEOC Req. No. 05950842 (Nov. 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 (2000); St. Mary's Honor Center v. Hicks, 509 U.S. 502, 519 (1993); Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 256 (1981); Pavelka v. Dep't of the Navy, EEOC Request No. 05950351 (Dec. 1, 1995).
We find substantial evidence in the record to support the AJ's analysis and conclusions with respect to liability. The AJ concludes that the Agency's non-discriminatory reasons for Complainant's non-selection were "without credence." citing Dalesandro v. U.S. Postal Service, EEOC Appeal No. 01A50250 (January 30, 2006) and Morgan v. Hilti, Inc., 108 F.3d 1319, 1323 (10th Cir. 1997)) (Pretext can be demonstrated by showing such weaknesses, inconsistencies, incoherencies or contradictions in the Agency's proffered legitimate reasons for its action that a reasonable fact-finder could rationally find them unworthy of credence).
Based upon evidence in the record, the AJ finds that the object of the EM Trainee Program was to cross-train electricians and machinists in each other's specialty to eliminate sending two employees (an electrician and machinist) to solve a problem requiring knowledge in both fields. The trainees had to have either one of the machinist and electrician specialties. A selectee with only a plumber's background would require instruction in both the electrical and machinist specialties, deviating from the program's cross-training concept. Accordingly, the AJ concluded that as a plumber, SE8 did not have the knowledge or experience equivalent to Complainant's.
In addition, the AJ concludes that the Agency's explanation for Complainant's non-selection was not credible. Specifically, the AJ finds the Agency's justification weak considering the fact that the position was highly technical and that writing skills were considered to be a very minor part of the program. In addition, contrary to SO's assertion that she was unsure of Complainant's ability to pass the classroom portion of the program, DS testified that the Agency provided extensive assistance to those trainees having trouble with classroom work, so they did not fail the program. Moreover, the AJ notes that contrary to SO's conclusion that Complainant's application lacked specific details about his actual work experience, the KSAs in Complainant's application reflect detailed descriptions of his work. We also note that the record establishes that the training program was to train the applicant in either the electrical or machinist background but not both, depending on which background was lacking in the selectee. Hence, a plumber with neither electrical nor machinist backgrounds would appear to be at a much higher risk of failure than Complainant.
The AJ also found procedural anomalies, such as missing records and unprecedented decisions, inconsistent with policy. Such deviations included the fact that SO originally received a COE from the ranking panel listing nine best qualified candidates out of 16 applicants. While the Agency later attempts to characterize this COE as a "draft," nothing in SO's written affidavit refers to it as such. Moreover, HR testified that SO went to HR's supervisor and requested a new COE with additional names. In addition, the evidence in the record supports the AJ's conclusion that the original COE ranked Complainant as the fifth highest candidate with a score of 22. Yet, Complainant's score was later reduced for inexplicable reasons.
The record also supports the conclusion that the Agency attempted to hide the existence of the original COE by failing to produce it during discovery or at the hearing. In fact, at the hearing, Agency counsel claimed the first COE never existed. In its appeal brief, the Agency claims that the missing original COE is a "red herring" because it was just a was just a preliminary document that was created by HR that was never shared with, seen by, nor relied upon the Agency's selecting official. However, substantial evidence supports the AJ conclusion based upon SO's and DS's own statements that the original COE existed and was shared with SO.7
We also agree with the AJ's conclusion that SO's explanation that she expanded the scope of the job qualification8 based upon her perception that there were insufficient internal electricians and machinists to fill the eight positions to be without merit. SO admitted that she had no technical knowledge and experience in mechanics or electricity enabling her to assess which applicants were "best qualified" for the position. The record shows that she appointed a panel of experts to rank the applicants precisely because she lacked the expertise to assess their qualifications herself. Yet, for inexplicable reasons she brushed aside her experts' list of the nine "best qualified" applicants. SO does not indicate that she consulted with the expert panel prior to throwing open the position to all applicants in the BEP. In doing so, she negated the EM program's cross-training objective without any basis whatsoever. In having the OHR lower the cutoff score, SO essentially eliminated the purpose of the ranking panel (i.e., to weed out less qualified applicants) since she received all but one candidate's application to consider.
We agree with the AJ's conclusion that pretext was established by the fact that SO, without reasonable justification, rejected the expert ranking panel's recommendation, changed the qualification requirements of the position in order to select applicant substantially less qualified than Complainant, including one who lacked both machinist and electrician specialties (i.e., who objectively did not fit the purpose of the EM Training Program to cross train Electricians and Machinists). We also find that substantial evidence supports the AJ's conclusion that race and age were motivating factors given the fact that no African-American in Complainant's age bracket was selected.
In addition, contrary to the Agency's assertion we find sufficient evidence exists in the record that SO was aware of Complainant's age and race. Complainant's age was easy to estimate from Complainant's resume which includes the dates he graduated from high school. In addition, the testimony in the record supports the finding that SO was very good with names and faces and regularly would walk "in the shoes" of the EM's to familiarize herself with workplace issues and challenges. In addition, we find it likely that SO had some familiarity with the applicants given the fact that despite her lack of technical knowledge, she made her selection decisions based solely on the application packages without conducting any interviews.
Accordingly, based upon the record, including evidence not specifically set forth above, we find substantial evidence to support the AJ's finding of age and race discrimination when the Agency failed to select Complainant for the position of EM Trainee.
REMEDIES
Backpay
The AJ concluded that Complainant is entitled to "the pay difference, minus the shift differential and overtime pay, and any and all benefits to which he is entitled (i.e. leave, step and grade increases, seniority, medical, etc.), including the maximum interest as allowed by law, from February 17, 2011 (i.e., the date of the non-selection) to April 29, 2015, in accordance with 29 C.F.R. � 1614.105."
The Agency argues that based on the undisputed calculations performed by the Agency's Payroll Office, Complainant has lost zero earnings while working for the Agency during the back pay period as compared to his colleagues that were in the EM Training Program. The Agency argues that, in fact, Complainant has come out ahead financially in comparison to what he would have made had he entered the program back in 2011. The Agency notes that entry into the program would have resulted in a loss of overtime, a lower hourly salary rate, and reduced earnings for Complainant.
We find that the record supports the Agency's assertion that Complainant earned more during the back pay period than what he would have earned had he been selected to participate in the EM Training Program. Accordingly, he is not entitled to back pay. See Paulk v. USPS, EEOC Appeal No. 01970061 (Oct. 4, 2001) (holding that overtime earnings that the complainant earned during the back pay period were considered interim earnings and when deducted from the gross back pay resulted in a net back pay award of zero); see also Maez v. USPS, EEOC Appeal No. 01972692 (Feb. 5, 2002).
Compensatory Damages
To prevail in a claim for compensatory damages, Complainant must demonstrate that he was harmed as a result of the Agency's discriminatory action; the extent, nature, and severity of the harm; the duration and expected duration of the harm. Compensatory and Punitive Damages Available Under Section 102 of the Civil Rights Act of 1991, EEOC Notice No. 915.002 (July 14, 1992); Rivera v. Dep't of the Navy, EEOC Appeal No. 01934157 (July 22, 1994).
To prevail in a claim for compensatory damages, Complainant must establish a causal connection between the discriminatory acts and the harm he suffered. See Browne v. Dep't of Agriculture, EEOC Appeal No. 01944256 (July 17, 1995). A compensatory damage award should fully compensate a complainant for the harm caused by the Agency's discriminatory conduct even if the harm is intangible. Id. at p. 13. Therefore, a compensatory damage award should reimburse a complainant for proven pecuniary losses, future pecuniary losses, and non-pecuniary losses.
Non-Pecuniary Losses
In order to establish an entitlement to non-pecuniary damages, Complainant must present objective evidence explaining how he was affected by the discrimination. Statements from others, including family members, friends, and health care providers can address the outward manifestation of the impact of the discrimination on Complainant. Complainant may also submit documentation of medical or psychiatric treatment related to the effects of the discrimination. See Carle v. Dep't of the Navy, EEOC Appeal No. 01922369 (Jan. 5, 1993)
In his Post Hearing Report of Damages, Complainant requests compensation for emotional distress, humiliation; loss of professional standing, inability to spend time with his son, inability to increase his income to pay for his son's college education and inability to work the day shift. Complainant asserts that he suffered these losses as the result of the discriminatory conduct. Evidence of compensatory damages was not taken at the hearing and the AJ notes that the record is devoid of affidavits or a sworn statement in support of Complainant's claim for non-pecuniary damages. The AJ also notes that Complainant's argument pertaining to emotional distress is extremely short, approximately two paragraphs, and does not provide specifics.
However, the AJ concludes that the record contains sufficient evidence to support Complainant's claim for non-pecuniary damages. In addition, the AJ concludes that the mental anguish and emotional pain that Complainant suffered was a direct result of the discriminatory action of the Agency which ultimately resulted in Complainant's non-selection.
The specific hearing testimony that supports the AJ's findings is as follows:
A: I found out who had acquired the position. ... [I]t kind of hurt me that they did that. So I was a little bit angry about it. Hearing Transcript Vol. II pg. 361.
The AJ awarded Complainant $25,000 in non-pecuniary damages and concluded that several Commission decisions have awarded non-pecuniary damages in cases similar to Complainant's and cited several decisions by the Commission. (e.g., Driesbach v. Dep't of Agriculture, EEOC Appeal No. 0120100617 (Sept. 20, 2011) ($15,000 in non-pecuniary compensatory damages awarded where the complainant suffered from depression, insomnia, stress, anger and marital conflicts); Eyslee v. Dep't of the Treasury, EEOC Appeal No. 0720100050 (Dec. 7, 2011) (non-pecuniary damages award of $20,000 where complainant suffered from anxiety, stress, sleeplessness, powerlessness, and humiliation); Brown v. Dep't of Veterans Affairs, EEOC Appeal No. 07A50013 (Feb. 8, 2001) (non-pecuniary damages award of $25,000 where the complainant felt hurt, betrayed, vilified, stereotyped and ashamed)).
Non-pecuniary compensatory damages are designed to remedy a harm, not to punish the Agency for its discriminatory actions. See Memphis Community School District v. Stachura, 477 U.S. 299, 311-12 (1986) (stating that a compensatory damages determination must be based on the actual harm sustained and not the facts of the underlying case). The Commission notes 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. Dep't of the Interior, EEOC Appeal No. 01961483 (Mar. 4, 1999) (citing Cygnar v. City of Chicago, 865 F.2d 827, 848 (7th Cir., 1989)). Thus, a compensatory damages award should reimburse complainant for proven pecuniary losses, future pecuniary losses, and non-pecuniary losses.
The record contains testimony from Complainant that he "felt hurt" by the discriminatory non-selection. Contrary to the Agency's assertions, we find sufficient evidence in the record to support the finding that Complainant suffered emotional distress as a direct result of the discriminatory non-selection. However, we do not find the award of $25,000 to be consistent with the amount in similar cases. Upon review of similar case law, we find that the non-pecuniary damages award should be reduced to $5,000. See e.g., Damiano v. U.S. Postal Serv., EEOC Request No. 05980311 (Feb. 28, 1999) ($5000.00 awarded for denial of reasonable accommodation when agency did not provide the complainant with an interpreter. Complainant presented statements from himself and from coworkers attesting to the fact that the agency's actions left him hurt angry and depressed; See Seda v. U.S. Postal Serv., Appeal No. 0720050090 (Mar. 20, 2007) (Complainant was entitled to $1,500.00 in non-pecuniary compensatory damages for reprisal discrimination where Complainant provided only limited and non-descriptive testimony concerning emotional pain); Complainant v. Dep't of Agriculture, Appeal No. 0120131546 (June 10, 2015) (non-pecuniary award of $2,000 where complainant only states that he was unhappy with the treatment he received by the Agency and as a result, his health and welfare were affected); Reddish v. U.S. Postal Serv., EEOC Appeal No. 0720070068 (Apr. 28, 2009) (non-pecuniary damages award of $4,000.00 where reprisal resulted in embarrassment, humiliation, distress, headaches and elevated blood pressure); and Spencer v. Dep't of the Treasury, EEOC Appeal No. 07A10035 (May 6, 2003) (non-pecuniary damages award of $5,000 as a result of complaints of dejection, stress, and emotional pain).
Given the above, we find that the evidence supports an award of $5,000.00. This amount takes into account the severity and the failure of Complainant to specify the duration of the harm he suffered from the Agency's action. In addition, this amount meets the goals of not being motivated by passion or prejudice, not being "monstrously excessive" standing alone, and being consistent with the amounts awarded in similar cases. See Ward-Jenkins, supra.9
Attorneys' Fees and Costs
A complainant seeking an award of attorney's fees must submit to the Agency a verified statement of fees with an accompanying affidavit itemizing the charges for legal services. 29 C.F.R. � 1614.501 (E)(2)(l). A fee petition must "contain sufficiently detailed information regarding the hours logged and the work performed," to permit the determination of the correct award. National Association of Concerned Veterans v. Secretary of Defense, 675 F.2d 1319, 1327 (D.C. Cir., 1982). An attorney fee award is typically determined by multiplying a reasonable number of hours spent on the case by a reasonable hourly rate, also known as the "lodestar." See 29 C.F.R. 1614.501 (e)(2)(ii)(b); Bernard v. Dept. of Veterans Affairs, EEOC Appeal No. 01966861 (1998). The attorney "has the burden of identifying the subject matters which he spent his time or by submitting sufficiently detailed and contemporaneous time records to ensure that the time spent was accurately recorded." Id.
There are a number of factors which may be assessed to determine if the attorney fees are reasonable: (1) the time required to complete the matter; (2) the novelty or difficulty of issues; (3) the requisite skill to properly handle the case; (4) the degree to which counsel is precluded from handling other cases; (5) the relief sought and results obtained; (6) the nature and length of the client/attorney relationship. Cerny v. Dep't. of the Army, EEOC Request No. 05930899 (Oct. 19, 1994). Billing judgment is very important, and counsel should make a "good faith effort" to exclude excessive or redundant billing time. Bernard, supra. EEOC's regulations provide for the recovery of costs in Title VII cases. 29 C.F.R. 1614.501(e)(2)(ii). The Commission has recognized that adequate documentation of the expense incurred and the nature of the expense is required in order to receive reimbursement of costs. See Constant v. Dep't of Energy, EEOC Appeal No. 01924621 (1993) (failure to submit copies of applicable bills, e.g., telephone bills, justifies denial of reimbursement for the costs).
The AJ concluded that Complainant's attorney (A1) timely submitted a Statement of Attorney Fees and Costs in which he seeks attorney's fees and costs in the amount of $68,494.00. The fees included $40,950.00 for Complainant's first attorney (A0); $25,376.00 for A1; $1,500.00 for an attorney who worked with A1, (A2); and $660.00 for paralegal services. A1 charged an hourly rate of $520.00 for the work he and A2 performed on this case. By comparison, A0's hourly rate was $300.00. The Agency disputes A1's hourly rate and argues that the attorney's fees and costs should be reduced for various reasons.
The AJ concluded that a reduction in attorneys' fees is warranted. The AJ found it "illogical that [Al] would submit such a barren and unpersuasive explanation of his client's damages," especially considering the fact that the records show that A2 spent almost three hours researching the law as it pertains to non-pecuniary damages." The AJ found that Complainant's attorneys failed to "vigorously advocate for [Complainant's] damages." Accordingly, the AJ concluded that an across-the-board reduction in the attorneys' fees request is appropriate. Specifically, the AJ reduced A1 and A2's rate to $350.00 per hour or 2.70% for a total reduction of $9,734.00. Accordingly, the AJ awarded A0 $40,950.00 and A1 and A2 a combined fee of $17,810.00.
The Agency argues that A0's hourly rate should also be reduced to $255/hour because at the time she represented Complainant she had only been out of law school three years.
To determine the appropriate prevailing market rate for an attorney in the Washington DC area, the Commission uses the Laffey Matrix. The Laffey Matrix is a schedule of hourly rates for attorneys, paralegals, and law clerks based on experience level. It is based on the hourly rates allowed by the District Court in Laffey v. Northwest Airlines, Inc., 572 F. Supp. 354 (D.D.C. 1983), aff'd in part, rev'd in part on other grounds. 746 F.2d 4 (D.C. Cir. 1984). It is prepared by the United States Attorney's Office for the District of Columbia for use in cases where a statute permits the prevailing party to recover ""reasonable" attorneys' fees. 42 U.S.C. � 2000e-5(k).
Since the Commission has previously found, consistent with federal case law, that delay in payment is properly measured by compensating a complainant's attorney(s) at the current, rather than historical, hourly rates, the proper rate for A0 is $315 per hour. See Missouri v. Jenkins, 491 U.S. 274, 283-84 (1989); Rowland v. Dep't of Agriculture, EEOC Appeal No. 0120113022 (Feb. 8, 2012; Huyck v. Dep't of Defense, EEOC Appeal No. 01952015 (Oct. 31, 1997) (current rates are applied "[i]n order to ensure that counsel is not deprived of the value of her fees owing to a delay in the resolution of a case."); Mareno v. Dep't of Veterans Affairs, EEOC Appeal No. 01943104 (Feb. 14, 1996) (reaffirming the position that proper customary hourly rate is reasonable hourly rate in effect at time of award and not at time services are provided); See also www.justice.gov/usao-dc. Hence, the record shows that the Agency's rate of $255 per hour is too low. Accordingly, we find the Agency has not presented sufficient evidence to justify any additional reduction in the attorneys' fees award.10
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we REVERSE the Agency's final action, in part, as set forth above.
ORDER (C0610)
Within sixty (60) days from the date this decision becomes final, the Agency is ordered to take the following remedial action:
1. The Agency shall promote Complainant to the position of Electro-Machinist Trainee retroactive to February 17, 2011. The Agency shall retroactively promote Complainant to the next appropriate step and/or grade, respectively, if appropriate, on the one year anniversary of his promotion and then on an annual basis or according to the Agency policy.11
2. The Agency shall compensate Complainant $5,000.00 for non-pecuniary damages;
3. The Agency shall compensate A0 $40,950.00 in attorney's fees;
4. The Agency shall compensate A 1 and A2 $17,810.00 in attorney's fees;
5. The Agency shall provide eight (8) hours of EEO training for SO and DS on the ADEA and Title VII.
6. The Agency shall consider taking disciplinary action against the Agency officials found to have discriminated 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.
7. 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 (G0914)
The Agency is ordered to post at its Bureau of Engraving and Printing, Office of Facilities Support facility in Washington, DC, copies of the attached notice. Copies of the notice, after being signed by the Agency's duly authorized representative, shall be posted both in hard copy and electronic format by the Agency within 30 calendar days of the date this decision becomes final, and shall remain posted for 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 10 calendar days of the expiration of the posting period.
ATTORNEY'S FEES (H0610)
If Complainant has been represented by an attorney (as defined by 29 C.F.R. � 1614.501(e)(l)(iii)), he 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 (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 (M0416)
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), at Chap. 9 � VII.B (Aug. 5, 2015). All requests and arguments must be submitted to the Director, Office of Federal Operations, Equal Employment Opportunity Commission. The requests may be submitted via regular mail to P.O. Box 77960, Washington, DC 20013, or by certified mail to 131 M Street, NE, Washington, DC 20507. 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 (R0610)
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 (Z0815)
If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may request permission from the court to proceed with the civil action without paying these fees or costs. Similarly, if you cannot afford an attorney to represent you in the civil action, you may request the court to appoint an attorney for you. You must submit the requests for waiver of court costs or appointment of an attorney directly to the court, not the Commission. The court has the sole discretion to grant or deny these types of requests. Such requests do not alter the time limits for filing a civil action (please read the paragraph titled Complainant's Right to File a Civil Action for the specific time limits).
FOR THE COMMISSION:
Carlton M. Hadden
Director
Office of Federal Operations
This case has been randomly assigned a pseudonym which will replace Complainant's name when the decision is published to non-parties and the Commission's website.
Footnotes
2
Electro-machinists at the Bureau are principally responsible for assembling, installing, repairing, and dismantling the machinery and equipment that prints and processes U.S. currency.
3
The undisputed record shows that SO had no EM experience or training and needed a panel of experts to evaluate the qualifications of each applicant.
4
SO did not testify at the hearing.
5
There were a total of 16 applicants for eight vacancies (six African-Americans and ten Caucasians). The selectees were SE1 (26 years old, Caucasian), SE2 (29 years old, Caucasian), SE3 (30 years old, Caucasian), SE4 (30 years old, African-American), SE5 (46 years old, African-American), SE6 (47 years old, Caucasian), SE7 (48 years old, Caucasian) and SE8 (55 years old, Caucasian).
6
However, we note that the AJ found that Complainant's application and experience made him highly qualified for the EM trainee position. Complainant was an electrical journeyman. The AJ noted that despite Complainant's status as an electrician journeyman, SO chose individuals without his expertise.
7
SO stated in her affidavit that after reviewing the first COE with the nine names, she asked HR for a second list of all the best qualified internal applicants, prior to the Ranking Panel's selection, because she wanted to give the greatest number of individuals a chance to compete for the position.
8
Expanding the craft categories opened up the trainee selection to crafts such as plumbing.
9
There is no claim for pecuniary damages.
10
While the current rate is $315, the AJ has reduced the rate to $300 due to factors set forth above and Complainant does not dispute this reduction.
11
The Agency did not raise any dispute with respect to this remedy by the AJ, although as noted above, Complainant is not entitled to any back pay due to the fact that he earned more during the back pay period than what he would have earned if he had been placed in the program in 2011. However, he is entitled to take part in the program immediately and moving forward his pay shall be adjusted retroactively along with his seniority and any other intangible benefits.