0720140022
09-16-2015
Complainant, v. Anthony Foxx, Secretary, Department of Transportation (Federal Aviation Administration), Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Complainant,
v.
Anthony Foxx,
Secretary,
Department of Transportation
(Federal Aviation Administration),
Agency.
Appeal No. 0720140022
Hearing No. 570-2010-00365X
Agency No. 2009-00016-RITA-01
DECISION
Concurrently with the issuance of its March 19, 2014 Final Order, the Agency filed an appeal of the Decision of an Equal Employment Opportunity Commission Administrative Judge (AJ). In her Decision, the AJ found the Agency discriminated against Complainant 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.. On appeal, the Agency requests that the Commission affirm its rejection of the AJ's findings of age, race, and reprisal discrimination. The Agency also requests that the Commission affirm its rejection of the relief ordered by the AJ. Specifically, the Agency requests that if the Commission affirms the AJ's finding of discrimination, that the Commission reduce the AJ's' award of $60,000 for Complainant's nonpecuniary damages. For the following reasons, the Commission REVERSES the Agency's Final Order and REMANDS the matter to the Agency for the implementation of relief.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as an Information Technology Specialist at the Agency's Bureau of Transportation Statistics facility in Washington, D.C. The record shows that Complainant began working at the Department of Transportation, Research and Innovative Technology Administration (RITA), Bureau of Transportation Statistics (BTS) as a GS-0334-14 Computer Specialist on May 6, 2001. Complainant was later promoted to a GS-2210-15 IT Specialist on May 2, 2004. On September 8, 2008, Complainant was reassigned from the Office of Airline Information (OAI) to unclassified duties in the Geospatial Information Systems (GIS) office. Complainant contacted an EEO Counselor and on January 16, 2009, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the bases of race (Asian), age (61), and in reprisal1 for prior protected EEO activity under Title VII of the Civil Rights Act of 1964 and the Age Discrimination in Employment Act of 1967, when:
1. Complainant was reassigned to the Office of Geospatial Information Systems (GIS) in September 8, 2008.
2. Complainant was subjected to harassment when the following incidents occurred:
a. Complainant was replaced as the TransStats Data Base Manager.
b. Complainant was forced out of the Office of Airline Information (OAI) and e-filing project.
c. OAI employees refused to cooperate with Complainant.
d. Complainant was denied an Airline Reporting and Data Information System (ARDIS) source code.
e. Complainant was denied the opportunity to debrief the ARDIS contractor.
At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation and notice of her right to request a hearing before an AJ. Complainant requested a hearing. By order dated July 30, 2012, the AJ granted in part Complainant's Motion for Sanctions2 regarding discovery. Therein, the AJ ruled that Complainant was entitled to an inference in her favor regarding certain documents that the Agency had failed to produce before the hearing. Specifically, the AJ found that the Agency failed to preserve the hard drives of several identified responsible management officials, failed to produce certain electronic mail messages authored or received by a fourth management official, and failed to produce other documents including those stored electronically.
The AJ found that Complainant was entitled to an award of attorney's fees together with the following inferences pertaining to the missing evidence:
1. The matters to which a document known as the 2008 Volpe Report3 and an identified May 18, 2009 letter to the Office of Management and Budget (OMB) pertain are established in favor of Complainant. 29 C.F.R. � 1614.109(f)(3)(ii).
2. An adverse inference will be drawn that electronic mail messages with S3 (either authored or received) would have reflected unfavorably on the Agency. 29 C.F.R. 1614.109(f)(3)(i).
Thereafter, the AJ held a hearing on August 1, 2, and 3, 2013. The AJ issued a decision on February 5, 2014. In her Decision, the AJ found that in 2008, S1 was Complainant's immediate supervisor and S2 was Complainant's second level supervisor. Complainant was responsible for the design and creation of the TransStats database of airline "on-time" information. Complainant received awards for her work on the TransStats database project. The AJ found that Complainant shared responsibility for the project with her husband in 2008, until she was reassigned by S2 to GIS. The AJ observed that Complainant's husband was the Project Manager of the TransStats project from 2005 to 2008, when S2 also reassigned him. The AJ noted that Complainant's position description called for her to act as project manager and Contracting Officer Technical Representative (COTR) of the TransStats database.
The AJ found that in March 2009, CP's former supervisor, S5, suggested that CP be assigned to tasks associated with the Share Point project, which duties S5 and CP considered more aligned with her knowledge, skills, and GS-15 grade level. Upon being notified of S5's offer of the Share Point project, S2 communicated to S5 that CP would not be allowed to work on the Share Point project and that S2 did not wish to devote any further resources to that project.
The AJ found discrimination on all alleged claims and alleged bases.
Reassignment to GIS
The AJ found that when Complainant was reassigned, S2 had no specific plan for Complainant's reassignment and that S2 instructed the officials at the Agency's Human Resource office to assign Complainant to unclassified duties. The AJ noted that Complainant was not assigned to tasks commensurate with her grade level, skills, and experience. Both Complainant and S3, the GIS supervisor, considered Complainant's reassignment to be a demotion.
The AJ found that Complainant and her husband are both Asian and both over 60 years of age at the time they were reassigned away from the TransStats project by S2. Both Complainant and her husband were replaced in their duties by younger, Caucasian employees. Complainant, the AJ noted, was replaced by a 44 year-old Caucasian female employee. The AJ found that Complainant established a prima facie case of age and race discrimination with respect to her reassignment to GIS by S2 in September 2008.
The AJ found that the Agency relied on the explanation of S2 for the reasons that Complainant was reassigned to GIS. Specifically, S2 explained that his supervisor, S4, made the decision to reassign Complainant. The AJ found, however, that the Agency failed to produce evidence pertaining to Complainant's reassignment, including evidence surrounding an assessment of TransStats performance contained in two identified documents: the 2008 Volpe Report and a 2009 letter to the OMB. The AJ found that the Agency failed to preserve the computer hard drives of S2, S4, and an additional official, S6 (the supervisors and management officials involved in the decision to reassign Complainant to GIS). Additionally, the electronic mail messages between S3, the supervisor to whom Complainant reported after her reassignment, and other officials, and in particular S2, were not produced. The AJ considered Complainant's position that the Volpe assessment fully supported the work Complainant had accomplished with the TransStats database and E-filing project. Complainant maintained that her reassignment was only designed to replace her (and her husband) with a less qualified, younger, Caucasian employee. Complainant, the AJ noted, also argued that S2 falsified information contained in the OMB letter to justify reassigning her and abandoning the TransStats E-filing database. The AJ found that the Agency's failure to preserve and produce the identified evidence strongly indicated that had the evidence been produced, it would have supported one or more of the elements of Complainant's position regarding the Agency's motivation for her reassignment.
The AJ found that S2's testimony regarding Complainant's reassignment was not credible. Specifically, the AJ found that S2 stated that Complainant did not perform well in her position and was quarrelsome with staff members. However, S2 could not describe any specific examples of either issue to justify Complainant's reassignment. S2, the AJ noted, also conceded that Complainant's 2008 performance appraisal did not reflect any of the performance or conduct issues cited by S2 as reasons for Complainant's reassignment. Significantly, the AJ noted that S2's articulated reasons for Complainant's reassignment varied between his affidavit testimony produced during the investigation of Complainant's complaint and his testimony at the hearing. For these reasons, the AJ found S2's veracity is called into question. For example, S2 explained on one occasion that GIS was short staffed. S3, the supervisor of GIS, disputed S2's explanation based on staffing considerations. S2 also claimed that the area of airline mapping capabilities was to be expanded. S3, the AJ found, explained that was not a priority task and not a task commensurate with Complainant's high level skills. S3, the AJ found, did not have any work to give Complainant that would have been commensurate with her GS-15 skills level.
The AJ found that S2's reasons for reassigning Complainant were unbelievable and that race and age discrimination more likely than not motivated the Agency's decision to reassign Complainant to GIS.
Harassment
With respect to harassment, the AJ considered evidence indicating that under S2's management, S1 was persuaded to lower Complainant's husband's performance appraisal rating from a 3 (meets expectations) to a 2 (minimally satisfactory). Additionally, Complainant stated that upon S2's arrival, the work environment became hostile and other employees were uncooperative. The AJ noted that S2 did not deny that performance appraisal ratings for non-Caucasian employees were lower when he became the reviewing official, and that Complainant was unable to obtain the source code for ARDIS from a coworker which was necessary for Complainant to complete the TransStats database and E-filing project. The AJ found that Complainant established that the series of incidents of harassment described in her complaint culminated in a tangible employment action, specifically, Complainant's reassignment to GIS. The AJ noted that the work to which S2 directed Complainant be assigned was entry-level work, according to S3, and accordingly, the reassignment was demonstrated to be a demotion and therefore, an adverse action. The AJ found that Complainant showed that more likely than not she was subjected to race and age discrimination as alleged with respect to her claim of harassment that culminated in her reassignment to GIS.
Reprisal
Regarding Complainant's complaint insofar as it is based on reprisal, the AJ found that S2 was contacted by an EEO Counselor regarding Complainant's request for EEO counseling in December 2008.4 In March 2009, S5 offered Complainant an assignment in another project known as the Share Point project, commensurate with Complainant's skills. The AJ found that S2 explained that he barred Complainant from working on the Share Point project because he did not wish to devote more resources to the Share Point project. The AJ considered that S3, Complainant's supervisor at the time, was agreeable to allowing Complainant to work on the Share Point project and that the entry-level mapping assignment was not appropriate work for Complainant. The AJ found the timing of S2's decision to block Complainant from working on the Share Point project, falling closely after S2's notice that Complainant engaged in protected activity, indicated that S2's decision was an act of reprisal. The AJ found that Complainant presented evidence that more likely than not, she was subjected to reprisal when S2 barred her from working on the Share Point project.
Remedies
Upon finding that Complainant was subjected to race, age, and reprisal discrimination as alleged, the AJ issued an Interim Decision and Order for Remedial Relief, on December 20, 2013. Therein, the AJ found that Complainant was entitled to an award of attorney's fees, among other relief, and ordered the Agency to provide Complainant with an award of attorney's fees upon the receipt of Complainant's verified petition for fees. The AJ's order provided the Agency with an opportunity to respond to Complainant's fee petition. The Agency responded to Complainant's fee petition and thereafter, the AJ issued her Decision on February 5, 2014, and ordered the Agency to implement the following remedies:
1. The Agency shall offer to restore Complainant to her position in the Bureau of Transportation Statistics, Office of Airline Information (or its current organizational equivalent) retroactive to September 9, 2008.
2. The Agency will expunge from all personnel and associated Agency records any references to Complainant's reassignment to the office of Geospatial Information Systems.
3. The Agency will pay Complainant the amount of $60,000.00 in nonpecuniary damages.
4. The Agency will require each of the responsible management officials identified in Complainant's complaint (herein referenced as S2 and S4) to take eight hours of EEO training in the provisions of Title VII of the Civil Rights Act of 1964 and the Age Discrimination in Employment Act with an emphasis on nondiscrimination based on race, age, and the prohibition against retaliation for engaging in protected EEO activity.
5. The Agency will pay Complainant's reasonable attorney's fees of $120,819.00 and $3,889.04 in costs.
6. The Agency will post the attached notice in the Agency's Bureau of Transportation Statistics, Office of Airline Information. Copies of the notice, signed by the Agency's duly authorized representative, shall be posted by the Agency within thirty calendar days of the date this decision becomes final, and shall remain posted for sixty 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 Agency subsequently issued a Final Order rejecting the AJ's finding that Complainant proved that the Agency subjected her to discrimination as alleged and objecting to the relief ordered with respect to nonpecuniary damages and attorney's fees.
On appeal, the Agency states that Complainant's reassignment was not an adverse action because Complainant did not suffer any loss of pay, status, or promotional potential. The Agency argues that the Agency's liability for the AJ's finding of harassment based upon a tangible employment action must fail. The Agency also states that the AJ's award of $60,000 in nonpecuniary, compensatory damages is excessive and that an award in the range of $20,000 to $24,000 is more appropriate given that some of Complainant's psychological conditions preceded the discrimination. Additionally, the Agency challenges the AJ's award of attorney's fees based upon the fee agreement between Complainant and her attorney.
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 establish a claim of harassment a complainant must show that: (1) they belong to a statutorily protected class; (2) they were subjected to harassment in the form of unwelcome verbal or physical conduct involving the protected class; (3) the harassment complained of was based on their statutorily protected class; (4) the harassment affected a term or condition of employment and/or had the purpose or effect of unreasonably interfering with the work environment and/or creating an intimidating, hostile, or offensive work environment; and (5) there is a basis for imputing liability to the employer. See Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982). Further, the incidents must have been "sufficiently severe or pervasive to alter the conditions of [complainant's] employment and create an abusive working environment." Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993). The harasser's conduct should be evaluated from the objective viewpoint of a reasonable person in the victim's circumstances. Enforcement Guidance on Harris v. Forklift Systems Inc., EEOC Notice No. 915.002 at 6 (Mar. 8, 1994). With respect to element (5), an employer is subject to vicarious liability for harassment when it is created by a supervisor with immediate (or successively higher) authority over the employee. See Burlington Industries, Inc., v. Ellerth, 524 U.S. 742, 118 s. Ct. 2257, 2270 (1998); Faragher v. City of Boca Raton, 524 U.S. 775, 118 S. Ct. 2275, 2292-93 (1998).
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). Complainant must initially establish a prima facie case by demonstrating that he or she was subjected to an adverse employment action under circumstances that would support an inference of discrimination. Furnco Constr. Co. v. Waters, 438 U.S. 567, 576 (1978). Proof of a prima facie case will vary depending on the facts of the particular case. McDonnell Douglas, 411 U.S. at 804 n. 14. The burden then shifts to the Agency to articulate a legitimate, nondiscriminatory reason for its actions. Tex. Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981). To ultimately prevail, Complainant must prove, by a preponderance of the evidence, that the Agency's explanation is pretextual. Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 120 S.Ct. 2097 (2000); St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 519 (1993).
In the instant case, we find substantial evidence supports the AJ's finding of discrimination and award of remedies. Specifically, we decline to disturb the AJ's finding regarding the credibility of the witnesses appearing at the hearing of Complainant's complaint. The record reflects that S2, as noted by the AJ, inconsistently recited the reasons for reassigning Complainant to GIS, and as also noted, could not support his assessment of Complainant's performance and conduct with examples or incidents to illustrate either deficiencies in her performance or problems with her conduct that warranted her reassignment to GIS where her skills were not needed or useful.5
We further concur with the AJ that Complainant's reassignment was a tangible employment action, as well as an adverse action, that establishes Complainant's harassment claim. We find that S3 did not consider the unclassified tasks to which Complainant was assigned and the work S2 suggested for Complainant to be either grade-sustaining or desirable. S3 considered the work to be entry level work. We find the evidence further establishes that Complainant's responsibilities for the TransStats database were assumed by a younger, Caucasian employee, whether or not that employee (E1) was given Complainant's job title and the balance of Complainant's prior duties.
We further find that substantial evidence shows that S2 was motivated by reprisal in his decision to prohibit Complainant from assuming the higher level duties (the Share Point project) offered to her by her former supervisor, S5. We concur with the AJ that this decision followed the filing of Complainant's complaint closely and without any confirming support from the other members of management who would be in a position to evaluate the prospective value of Complainant's skills to the Share Point project. We find, as did the AJ, that more likely than not, S2 was motivated by reprisal when he barred Complainant from work on the Share Point project as S5 requested.
We find substantial evidence supports the AJ's finding of discrimination on all alleged claims and alleged bases.
Compensatory damages
When discrimination is found, the Agency must provide Complainant with a remedy that constitutes full, make-whole relief to restore her as nearly as possible to the position she would have occupied absent the discrimination. See, e.g., Franks v. Bowman Transp. Co., 424 U.S. 747, 764 (1976); Albemarle Paper Co. v. Moody, 422 U.S. 405, 418-19 (1975); Adesanya v. U.S. Postal Serv., EEOC Appeal No. 01933395 (July 21, 1994). Pursuant to section 102(a) of the Civil Rights Act of 1991, a complainant who establishes unlawful intentional discrimination under either Title VII of the Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. � 2000e et seq. or Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq. may receive 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) as part of this "make whole" relief. 42 U.S.C. � 1981a(b)(3). In West v. Gibson, 527 U.S. 212 (1999), the Supreme Court held that Congress afforded the Commission the authority to award compensatory damages in the administrative process. 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. 42 U.S.C. � 1981a(b)(3).
In a claim for compensatory damages, a Complainant must demonstrate, through appropriate evidence and documentation, the harm suffered as a result of the Agency's discriminatory action; the extent, nature, and severity of the harm suffered; and the duration or expected duration of the harm. Rivera v. Dep't of the Navy, EEOC Appeal No. 01934156 (July 22, 1994); Notice at 11-12, 14; Carpenter v. Dep't of Agric., EEOC Appeal No. 01945652 (July 17, 1995). Objective evidence in support of a claim for nonpecuniary damages includes statements from Complainant and others, including family members, coworkers, and medical professionals. See Compensatory and Punitive Damages Available Under Section 102 of the Civil Rights Act of 1991, EEOC Notice No. N915.002 (July 14, 1992) (hereafter referred to as "Notice"); Carle v. Dep't of the Navy, EEOC Appeal No. 01922369 (Jan. 5, 1993). Nonpecuniary damages must be limited to compensation for the actual harm suffered as a result of the Agency's discriminatory actions. See Carter v. Duncan-Higgans, Ltd., 727 F.2d 1225 (D.C. Cir. 1994); Notice at 13. A proper award should take into account the severity of the harm and the length of time that the injured party suffered the harm. See Carpenter, EEOC Appeal No. 01945652.
Here, the AJ found that Complainant suffered both emotional and physical distress as a result of the Agency's actions. In support of this finding, the AJ noted that Complainant suffered from sleeplessness, anxiety, stress, and depression as a result of discrimination for which the AJ ordered the Agency to pay Complainant $60,000 in nonpecuniary damages. On appeal, the Agency argues that Complainant was treated for some symptoms prior to the time she was subjected to discrimination. Complainant's evidence at the hearing regarding her pain and suffering consisted of her own testimony and that of her treating physician. On appeal, Complainant points out that she began taking an identified anti-depressant, Zoloft, in November 2008, after the discrimination occurred and also suffered an exacerbation of her existing symptoms, noted by the increase in the dose of sleeping medication she was prescribed after she was subjected to discrimination in 2008 through 2012.
The Commission has reviewed the entire record, including the statements made by Complainant and Complainant's treating physician, as well as the documentary evidence admitted into the record during the AJ's hearing regarding damages. We note the testimony of Complainant who confirmed that she experienced an exacerbation of certain pre-existing conditions for which she sought treatment caused by the stress created by the Agency's discriminatory actions. The Commission finds the AJ's award of $60,000 is reasonable under the circumstances. See Complainant v. Social Security Admin., EEOC Appeal No. 0720130013 (Aug. 14, 2014) (Complainant awarded $60,000 where Agency's failure to accommodate resulted in exacerbation of post traumatic stress disorder, depression, stress, and elevated blood pressure); Henery v. Dep't of the Navy, EEOC Appeal No. 07A50034 (Sept. 22, 2005) ($65,000 awarded where Complainant suffered from frustration, negativity, and loss of sleep for a four-year period, as well as physical pain associated with the resulting excessive walking. The discrimination caused significant increase in Complainant's need for medical treatment, as well as an increase in physical and emotional harm).
We find this amount takes into account the severity of the harm suffered, and is consistent with prior Commission precedent. Finally, we find this award is not "monstrously excessive" standing alone, is not the product of passion or prejudice, and is consistent with the amount awarded in similar cases. See Jackson v. U.S. Postal Serv., EEOC Appeal No. 01972555 (April 15, 1999) (citing Cygnar v. City of Chicago, 865 F. 2d 827, 848 (7th Cir. 1989)).
Attorney's fees
The Commission's regulations authorize the award of reasonable attorney's fees and costs to a prevailing complainant. 29 C.F.R. � 1614.501(e). Fee awards are typically calculated by multiplying the number of hours reasonably expended times a reasonable hourly rate, an amount also known as a lodestar. See 29 C.F.R. � 1614.501(e)(ii)(B); Hensley v. Eckerhart, 461 U.S. 424 (1983). All hours reasonably spent in processing the complaint are compensable, but the number of hours should not include excessive, redundant, or otherwise unnecessary hours. A reasonable hourly rate is based on prevailing market rates in the relevant community for attorneys of similar experience in similar cases. An application for attorney's fees must include a verified statement of attorney's fees accompanied by an affidavit executed by the attorney of record itemizing the attorney's charges for legal services. While the attorney is not required to record in great detail the manner in which each minute of his time was expended, the attorney does have the burden of identifying the subject matters on which he spent his time by submitting sufficiently detailed and contemporaneous time records to ensure that the time spent was accurately recorded. See Spencer v. Dep't of the Treasury, EEOC Appeal No. 07A10035 (May 6, 2003). The attorney requesting the fee award has the burden of proving, by specific evidence, entitlement to the requested fees and costs. Koren v. U.S. Postal Serv., EEOC Request No. 05A20843 (Feb. 18, 2003).
The reasonable hourly rate is generally determined by the prevailing market rate in the relevant legal community for similar services by lawyers of reasonably comparable skill, experience and reputation. Blum v. Stenson, 465 U.S. 886 (1984). In her Decision, the AJ found that Complainant's attorney was entitled to a reasonable hourly rate of $450 in accord with the Laffey Matrix. The matrix 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).
In her Decision, the AJ considered Complainant's verified petition for attorney's fees and costs, as well as the Agency's opposition. On appeal, the Agency again challenges the AJ's use of the Laffey Matrix to determine the hourly rate to use in calculating a reasonable award of attorney's fees. The AJ considered the years of experience, skill and knowledge, as well as the complexity of the case to support her finding that $450 per hour is a reasonable hourly rate for both of the attorneys identified in the fee petition. The Agency argues that because Complainant and her attorneys entered into an agreement whereby the attorneys would be compensated at an hourly rate of $300 (and additional work would be compensated by a flat fee arrangement), the Laffey matrix does not apply under the circumstances.
We find that in his fee petition, Complainant's attorney explains that he charges less in cases such as Complainant's because of the financial burden they entail for most clients in Complainant's position. We find Complainant's attorney has demonstrated that he entered into an agreement at a lower than market hourly rate because he knew that Complainant would otherwise be financially burdened. We find that the AJ's use of the Laffey Matrix is appropriate under the circumstances where the attorneys have entered into a fee agreement at a lower hourly rate that takes into consideration the financial burden that market rates would impose upon an employee in Complainant's position, even those compensated at the GS-15 rate, in order to provide skilled representation to employees employed in public service. See Complainant v. Dep't of Defense, EEOC Appeal No. 0720120002 (Sept. 19, 2014), request for reconsideration denied, EEOC Request No. 0520150063 (December 5, 2014). Therefore, we shall affirm the AJ's award of attorney's fees and costs.
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 Order and REMAND the complaint to the Agency for the imposition of remedies, as slightly modified herein.
ORDER
The Agency shall take the following actions:
1. Within 30 days of the date this decision becomes final, the Agency shall offer to restore Complainant to her position in the Bureau of Transportation Statistics, Office of Airline Information (or its current organizational equivalent) retroactive to September 9, 2008.
2. Within 30 days of the date this decision becomes final, the Agency will expunge from all personnel and associated Agency records any references to Complainant's reassignment to the office of Geospatial Information Systems.
3. Within 30 days of the date this decision becomes final, the Agency will pay Complainant the amount of $60,000.00 in nonpecuniary, compensatory damages.
4. Within 30 days of the date this decision becomes final, the Agency will pay Complainant for reasonable attorney's fees of $120,819.00 and $3,889.04 in costs.
5. Within 60 days of the date this decision becomes final, the Agency will require the responsible management officials (which include S2 and S4) to take eight hours (total per individual) of EEO training in the provisions of Title VII of the Civil Rights Act of 1964 and the Age Discrimination in Employment Act with an emphasis on nondiscrimination based on race, age, and the prohibition against retaliation for engaging in protected EEO activity.
6. Within 30 days of the date this decision becomes final, the Agency shall consider taking appropriate disciplinary action against the responsible management officials (which include S2 and S4). The Agency shall report its decision to the Compliance Officer. 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. If the management officials have left the Agency's employment, then the Agency shall furnish documentation of their departure dates.
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 documentation indicating that the corrective action has been implemented
POSTING ORDER (G0914)
The Agency is ordered to post at its Bureau of Transportation Statistics facility in Washington, D.C., 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)(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 (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 (M0815)
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 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, 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 (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 Complainants Right to File a Civil Action for the specific time limits).
FOR THE COMMISSION:
______________________________ Carlton M. Hadden's signature
Carlton M. Hadden, Director
Office of Federal Operations
September 16, 2015
__________________
Date
1 The record shows Complainant withdrew national origin (Chinese) as a basis of discrimination prior to the hearing of her complaint before the AJ.
2 Complainant ultimately filed three documents in which she sought sanctions against the Agency for its failure to produce requested documents and things during discovery. The AJ considered all three motions in her Order for Sanctions dated July 30, 2012.
3 An assessment team of experts at the Agency's Volpe Center in Cambridge, Massachusetts reviewed the TranStats, E-Filing project and issued a report wherein they determined the project had security and software design deficiencies.
4 The AJ's Decision contains a typographical error. The record shows that Complainant's complaint was filed in January 2009, and that S2 was contacted shortly before that during the informal inquiry regarding Complainant's allegations in December 2008.
5 We observe that when pressed at the hearing for the reasons S3 did not ask S2 for his thinking regarding the reassignment, S3 responded to the effect that he did not ask for S2's reasons because S3 preferred to stay out of whatever circumstances were motivating S2's decision.
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