0120120536forweb
08-18-2014
Complainant, v. Robert McDonald, Secretary, Department of Veterans Affairs, Agency.
Complainant,
v.
Robert McDonald,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 0120120536
Hearing Nos. 170-95-8514X and 170-95-8515X
Agency Nos. 93-3313 and 94-0475
DECISION
On October 31, 2011, Complainant filed an appeal from the Agency's September 26, 2011, final order concerning his request for compensatory damages as a result of the Commission's finding that the Agency violated Title VII of the Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. � 2000e et seq. For the following reasons, the Commission AFFIRMS the Agency's final order.
BACKGROUND
At the time of events giving rise to the underlying complaints, Complainant worked as a Chief of Staff at the Agency's medical center in Altoona, Pennsylvania. He filed two formal EEO complaints, alleging in the first complaint that the Agency discriminated against him on the bases of his national origin (Australian) and disability (rheumatoid arthritis) when his temporary appointment was terminated effective May 29, 1993. In his second complaint, he alleged that the Agency discriminated against him on this basis of reprisal when, on June 14, 1993, he was issued a bill of collection for physician's special pay in the amount of $25,404.50. An EEOC Administrative Judge (AJ) found no discrimination with respect to the termination, but found that Complainant had been subjected to unlawful retaliation when the Agency issued the bill of collection. The Agency issued a final order finding no discrimination on either claim. On appeal, the Commission affirmed the AJ's finding of reprisal discrimination and remanded the case for a determination on remedies. *** v. Department of Veterans Affairs, EEOC Appeal No. 01961412 (March 24, 1998). The Agency issued a final decision on remedies without providing Complainant with the opportunity to request a hearing, and on appeal the Commission remanded the matter for a hearing before an AJ. *** v. Department of Veterans Affairs, EEOC Appeal No. 01991492 (December 7, 2001).
The AJ assigned to the case issued a decision on August 12, 2011, awarding Complainant $5,000.00 in compensatory damages, $20,487.50 in attorney's fees, and $5,650.00 in costs. On appeal, Complainant requests that the Commission either remand the case for another hearing or increase the amount of compensatory damages and attorney's fees awarded. The Agency requests that we affirm its final order implementing the AJ's decision.
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. (November 9, 1999).
Compensatory damages
Following a hearing, the AJ awarded Complainant $5,000.00 in nonpecuniary, compensatory damages, however Complainant contends that this amount is insufficient to remedy the harm caused by the Agency's retaliation. To receive an award of compensatory damages, Complainant must demonstrate that he has been harmed as a result of the Agency's discriminatory action; the extent, nature, and severity of the harm; and the duration or expected duration of the harm. Rivera v. Dep't of the Navy, EEOC Appeal No. 01934157 (July 22, 1994), req. for recon. den'd, EEOC Request No. 05940927 (Dec. 8, 1995); Compensatory and Punitive Damages Available Under Section 102 of the Civil Rights Act of 1991, EEOC Notice No. 915.002 (Guidance) (July 14, 1992), at 11-12, 14. Objective evidence in support of a claim for nonpecuniary damages includes statements from Complainant and others, including family members, coworkers, and medical professionals. See Guidance at 12-13; Carle v. Dep't of the Navy, EEOC Appeal No. 01922369 (Jan. 5, 1993). An agency is responsible only for those damages that are clearly shown to be caused by the discriminatory conduct. Rivera v. Dep't of the Navy.
Here, nonpecuniary damages must be limited to compensation for the actual harm suffered as a result of the Agency's retaliatory actions in issuing Complainant the bill of collection. See Guidance at 13. Additionally, 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 Jackson v. U.S. Postal Serv., EEOC Appeal No. 01972555 (Apr. 15, 1999) (citing Cygnar v. City of Chicago, 865 F. 2d 827, 848 (7th Cir. 1989)). At the hearing, Complainant presented evidence to show that following his receipt of the bill of collection, the symptoms of his rheumatoid arthritis became markedly worse, causing him fatigue, stiffness, and extreme joint pain which limited his ability to walk or climb stairs. Additionally, the record shows that he suffered mental symptoms such as depressed mood, anger, stress, difficulty sleeping, and loss of interest in activities. Complainant's medical symptoms lasted through 1996, when the acute joint inflammation and weakness began to subside. Although the AJ found that Complainant established that his rheumatoid arthritis was aggravated by the Agency's retaliatory conduct, the AJ also found that medical evidence presented at the hearing showed that the events leading to his termination, for which no discrimination was found, was a contributing factor. As such, the AJ found that an award of $5,000.00 was appropriate.
After careful consideration of the record, the Commission finds that the AJ's award of $5,000.00 is appropriate. We note that the Commission has awarded compensatory damage amounts similar to the amount awarded in this case. See Hairston v. Department of Education, EEOC Appeal No. 0120103308 (January 4, 2013) ($5,000 in nonpecuniary damages awarded where complainant experienced stress and anxiety that caused disruptive sleep patterns, headaches, and other physical problems), request for reconsideration denied, EEOC Request No. 0520130045 (March 27, 2013); Stapp v. Department of the Navy, EEOC Appeal No. 01A05634 (September 9, 2002) ($5,000 in nonpecuniary, compensatory damages awarded where complainant experienced depression, humiliation, loss of self-esteem, and impaired relationship with her husband). We conclude that an award of $5,000.00 will adequately compensate Complainant for the harm he suffered as a result of the Agency's retaliation.
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); see also EEOC's Management Directive 110 (MD-110) (Nov. 9, 1999) Chapter 11. 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)(2)(ii)(B); Hensley v. Eckerhart, 461 U.S. 424 (1983).
Complainant sought $31,350.00 in attorney's fees based on an hourly rate of $275.00, with an additional $5,650.00 in costs. This amount was calculated for the period March 31, 1998, through September 6, 2002. The Agency did not challenge the reasonableness of the hourly rate nor the awarded costs, however it argued that Complainant should not be compensated for fees prior to the date the matter was remanded for a hearing on compensatory damages. The AJ determined that although the Agency was correct in arguing that the period for which Complainant was entitled to collect attorney's fees should be narrowed, the Agency was incorrect in its assessment of the proper starting date. The AJ found that Complainant began preparing for the instant appeal on November 21, 1999, the date he received the Agency's decision regarding compensatory damages that was later vacated. As such, the AJ reduced the number of compensable hours by 39.5 and awarded Complainant $20,487.50 in attorney's fees and $5,650.00 in costs.
The Commission finds that the AJ's reduction of the amount of attorney's fees and costs awarded is supported by the record. Accordingly, the Commission finds no basis to disturb 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 AFFIRM the Agency's award of compensatory damages, attorney's fees, and costs. The Agency shall comply with the Order herein.
ORDER
Within 30 days of the date this decision becomes final, to the extent it has not already done so, the Agency shall:
(1) Pay Complainant $5,000.00 in compensatory damages; and
(2) Pay Complainant $20,487.50 in attorney's fees and $5.650.00 in costs;
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.
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 (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 (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
August 18, 2014
__________________
Date
2
0120120536
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013