01a43491
07-29-2005
Genevieve Kuepfer, Complainant, v. R. James Nicholson, Secretary, Department of Veterans Affairs, Agency.
Genevieve Kuepfer v. Department of Veterans Affairs
01A43491
July 29, 2005
.
Genevieve Kuepfer,
Complainant,
v.
R. James Nicholson,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 01A43491
Agency Nos. 99-2716, 99-3174, 99-3085
Hearing Nos. 320-A0-8433X, 320-A1-8008X, 320-A1-8009X
DECISION
Complainant timely initiated appeals to the Commission from the agency's
final decisions concerning the agency's award of compensatory damages
and attorney's fees. The appeals are accepted pursuant to 29 C.F.R. �
1614.405.
During the relevant period, complainant was employed as a Vocational
Rehabilitation Counselor at the agency's Regional Office in Denver,
Colorado. Complainant filed three formal EEO complaints on May 15,
1999, June 16, 1999 and August 5, 1999, alleging that she was subjected
to discrimination on the bases of disability (Post Traumatic Stress
Disorder), sex (female) and reprisal for prior EEO activity when she was
denied a reasonable accommodation, subject to harassment and terminated
from the agency.<1> After the agency completed its investigation of the
complaints, complainant requested a hearing before an EEOC Administrative
Judge (AJ).
Complainant's complaints were assigned to an AJ in the EEOC's Denver
District Office. Following a hearing on her complaints, the AJ issued a
bench decision finding that complainant was subjected to discrimination
based on disability and reprisal when the agency denied her a reasonable
accommodation, subjected her to harassment, and terminated her from her
position with the agency. The AJ found complainant did not establish
that she was subjected to discrimination based on sex. As a remedy
for the discrimination, the agency was ordered to offer complainant a
position similar to her former position at a facility other than the
Regional Office in the Denver Metropolitan Region, and if either party
has a question regarding complainant's ability to work, complainant
shall undergo, by a neutral party, a Fitness for Duty Examination that
will determine whether she can work with the agency. The agency was
also ordered to expunge any reference to complainant's termination from
agency records, pay complainant back pay, pay non-pecuniary compensatory
damages in the amount of $125,000.00, pay attorney's fees and costs in
the amount of $91,150.25, and pay complainant pecuniary damages in an
amount to be documented by complainant. In an April 16, 2002 letter,
the AJ clarified the Order noting that in the event complainant undergoes
a Fitness for Duty Examination and it is determined that she is not able
to return to work, she shall be awarded front pay, calculated from the
date she was determined to be unemployable to July 16, 2004. Finally,
the AJ's clarification stated that if complainant was found fit for duty,
no front pay would be awarded.
On May 22, 2002, the agency issued a final order fully implementing
the AJ's decision. Subsequently, on September 10, 2002, complainant
underwent a Fitness for Duty Examination, and it was determined that she
was unable to return to work. On September 30, 2002, the agency modified
its previous final order and declined to award complainant front pay
arguing that since she was unable to work, it was contrary to the law
to award her front pay. On October 30, 2002, complainant notified the
agency's EEO Director that the agency did not comply with its final order.
The agency did not respond to complainant's claim of noncompliance.
Complainant filed an appeal with the Commission, docketed under EEOC
Appeal No. 01A31297, alleging that the agency failed to comply with its
final order by rescinding the portion of its final order pertaining
to front pay. On August 5, 2003, the Commission issued a decision
in EEOC Appeal No. 01A31297 finding that based on the results of the
September 10, 2002 Fitness for Duty Examination, which found complainant
unable to return to work, she was not entitled to receive front pay.<2>
However, the Commission noted that complainant may be entitled to future
pecuniary damages for the loss of her future earning capacity if she can
demonstrate that the agency's discrimination resulted in an injury that
impacts her future ability to earn a salary comparable with what she
earned before the discrimination. Thus, the Commission remanded the
matter for complainant to be given the opportunity to demonstrate her
potential entitlement to damages for the loss of future earning capacity.
On March 25, 2004, the agency issued its final decision on compensatory
damages. In its decision, the agency noted that complainant claimed
no past pecuniary losses but claimed future pecuniary damages in the
amount of $743,400.00 for loss of future earning capacity. The agency
noted that complainant suffered from Post Traumatic Stress Disorder
(PTSD) as a direct result of a sexual assault upon her in 1995, during
her tenure with the military. The agency stated that she testified
that as a result of the assault and the effect it had upon her, she
was unable to work full-time for a period following that incident.
The agency noted that in August 1996 she returned to college seeking
a Master's Degree in Vocational Rehabilitation. The agency maintained
that during the time she was working on her graduate degree, complainant
worked as a part-time intern with the agency. The agency explained
that after obtaining her Masters Degree, she was hired as a full-time
Vocational Rehabilitation Counselor with the agency on August 13, 1998.
The agency argued that complainant's symptoms were likely exacerbated
when in September 1998 she was required to testify at the re-trial of
the man accused of her rape. The agency noted that when it refused her
request for reasonable accommodation, subjected her to a hostile work
environment, and ultimately terminated her from employment, her PTSD
symptoms reached a point of incapacitating her.
The agency reviewed the statements by three doctors and its Certified
Vocational Evaluator in determining the amount of compensatory damages to
be awarded complainant for future loss of earning capacity. The agency
noted that Dr. A, who performed the original Fitness for Duty Examination
on complainant, stated that her PTSD was exacerbated by her experience
in testifying at the trial of the man who assaulted her as well as the
hostile environment existing at the agency. The agency noted that Dr. A
stated in his December 23, 2002 report, that the most significant factors
in the exacerbation of her PTSD were related to the hostile environment
at the agency, although he admitted it was difficult to apportion the
causative factors of the exacerbation.
The agency reviewed the November 5, 2003 report by Dr. B, a doctor
who performed a psychiatric examination of complainant. The agency
noted that in his report Dr. B noted that complainant was unable to
return to see him for a second appointment due to ��disassociating.'�
The agency noted that Dr. B's report maintained that the hostile work
environment created at the agency aggravated complainant's PTSD symptoms.
The agency cited Dr. B's report as noting that despite winning her EEO
case against the agency, complainant's symptoms have remained ��worse'�
and �she disassociates daily rather than only occasionally as before.�
The agency noted that Dr. B stated complainant is unable to work in
any occupation as a result of her experience at the agency.
The agency described the evaluation of complainant's potential loss
of earning capacity by Dr. C, a Vocational Rehabilitation expert.
The agency noted that in his October 31, 2003 report, Dr. C determined
that complainant has become a ��severely disabled worker� and found ��it
unlikely that she will ever be able to return to any regular employment.'�
The agency noted that Dr. C found complainant lost the value of her
earning capacity for the remainder of her expected worklife and estimated
her earning capacity at $612,000.00 without calculation of benefits based
on an annual projected income of $34,000.00 per year for eighteen years.
The agency faulted Dr. C's evaluation for not discussing complainant's
attempts to further her education. The agency noted that complainant
entered a doctoral program at the University of Northern Colorado in the
Fall of 2000 and had completed 41 out of the necessary 60 hours towards
her Ph.D. program by December 2002. The agency noted that complainant
testified that she dropped out of the program due to the worsening of
her depression. The agency found that although complainant has not yet
returned to complete her Ph.D, she stated she intends to complete the
program and stated she anticipates it will take her an additional four
years to do this.
Finally, the agency cited the January 8, 2004 letter prepared by
Person D, a Certified Vocational Evaluator. The agency claimed that
Person D concurred with complainant's specialists that she is currently
unemployable. However, the agency noted that Person D states that when
complainant is able to work she would earn an hourly mid-range wage
between $10.36 and $17.24. Person D further stated that if she completed
her Ph.D she may be able to qualify for a position as a post-secondary
vocational education teacher with the potential hourly mid range salary
between $15. 39 and $26.67. The agency stated based on these figures if
complainant does not complete her Ph.D she will be capable of earning an
annual salary of $39,859.00 when she returns to the workforce. The agency
stated that if complainant completed her Ph.D, as she stated was her
intention, she will possess the capability of earning $55,478.60 annually.
In calculating her loss of future earning capacity, the agency claims
that in her November 19, 2003 testimony complainant states that she
expects it will take her an additional four years from that date,
or until December 31, 2007, to complete her Ph.D and dissertation.
The agency rejects complainant's position that she will never be able to
reenter the workforce and instead determines that it is likely that she
will be unable to return to work until she completes her Ph.D or until
December 31, 2007. The agency calculated complainant's loss of future
earning capacity using the annual salary of $34,000.00 for the period
of September 14, 2002 (the date complainant was found unemployable)
to December 31, 2007 (the anticipated date of her obtaining her Ph.D
and reentering the workforce) for a total of $179,807.75.
Additionally, the agency noted that complainant's service connected
disability benefits were increased from 70% to 100% at the time it was
determined she was no longer employable on August 1, 1999. The agency
argued that the sole purpose of the 30% increase was to compensate
complainant for her �unemployability� or loss of capacity to earn
a living, which occurred as a result of the agency's discriminatory
conduct. The agency claims that the money for the 30% increase comes
from the same general fund of the United States responsible for paying
the compensatory damages it awarded in this case. The agency states
that veterans do not make any contributions that wholly or fully fund
such benefits. Thus, the agency offset the taxable value of the 30%
increase in benefits which it calculated as $133,714.24 for the period of
August 1, 1999 through December 31, 2007.<3> In offsetting $133,714.24
from $179,807.75 the agency determined that complainant was entitled
to $46,093.51 in pecuniary damages for loss of future earning capacity.
Finally, the agency stated that any calculation of other benefits (i.e.,
health insurance, life insurance or retirement) due complainant for
the period in question would be speculative. The agency did note that
complainant is receiving medical coverage as a result of her service
connected disability.
Complainant filed the present appeal on April 23, 2004, and thereafter
submitted her brief on loss of wage earning capacity. On appeal,
complainant notes that the psychiatrists found she was unable to return
to work. She notes that more than a year after Doctor A found she could
not return to paid employment, Dr. B found that �[h]er symptoms have not
improved sufficiently to allow her to work. On the contrary, I see her
as largely housebound, unable to function without her dogs, and in many
ways unable to function at all (as evidenced by recent difficulties with
her car and her inability to return to talk to me despite the fact that
her own attorney had asked her to do so). In short, she is incapable of
remunerative employment. This worsening is a result of her experience
while employed at the [agency] hospital.�
Complainant also notes that in a December 23, 2003 report, Dr. A stated
that �[i]t is difficult to apportion the causative factors leading to
the exacerbation of her PTSD, although in my opinion the most significant
factors were related to the hostile work environment.� Complainant notes
that Dr. C, a Vocational Rehabilitation Expert, reported that �she is no
longer in the labor force and it is unlikely that she will ever be able
to return to any regular employment. Therefore as a result of the impact
of this inappropriate discrimination, it is likely that [complainant] has
lost the value of her earning capacity for the remainder of her expected
work life.� Complainant notes that the agency then asked Person D,
a Vocational Evaluator, for a rebuttal report on the wages complainant
could earn �when she is able to re-enter the work force.� Complainant
notes that Person D stated that complainant was not employable at the
time but found that if she is able to complete her Ph.D program she may
qualify for work as a post-secondary vocational education teacher.
Complainant argues that it was error for the agency to base her loss
wage earning capacity based on the annual pay rate of $34,000.00
she was receiving at the time of her termination on July 16, 1999,
prior to reinstatement. Complainant notes that the agency reinstated
complainant and paid her back pay from July 16, 1999, through September
13, 2002. Therefore, complainant claims her loss wage earning capacity
should be based on her final pay rate after reinstatement of $60,398.00.
Complainant claims the agency misconstrued the expert opinion of Dr. C
in stating that he determined that complainant lost the capacity to earn
the annual sum of $34,000.00 for the rest of her life. Complainant states
that Dr. C only gave an example based upon her starting salary. Further,
complainant notes that on June 24, 2004, Dr. C issued a supplemental
report in which he stated that complainant's annual rate of pay in
effect on September 13, 2002, which was $60,389.00, should be used when
calculating lost wages.
In addition, complainant argues that the agency erroneously assumed she
could return to work in 2007. Complainant notes that the testimony
at her hearing established that her PTSD worsened as a result of the
agency's discrimination. She states that her condition did not improve
after the hearing and noted that Dr. A, the psychiatrist selected by
the agency to examine her on September 10, 2002, stated that her PTSD
stabilized but remained very symptomatic during the past year and noted
that her major depressive disorder �is somewhat worse as compared to
one year earlier.� Complainant cited an April 1, 2003 Veterans Affairs
evaluation of her service connected benefits which found complainant
�not able to pursue educational endeavors or employment at the present
time.� Complainant claims that the agency ignored the findings of Dr. A
who stated that both her PTSD and her depression would be exacerbated if
she returned to paid employment. Finally, complainant cites a June 22,
2004 supplemental report by Dr. B who found �there is essentially no
possibility, in [his] opinion of [complainant] returning to full time
employment based on the severity of her post traumatic stress disorder.�
Further, complainant claims that she would remain impaired even if she
obtained a Ph.D. She cites the supplemental statement of Dr. C who
opined that �having a Ph.D. would not change the fact that [complainant]
would have issues with obtaining and maintaining employment working a
regular and consistent basis.�
Complainant also argues the agency erroneously assumed she would complete
her Ph.D within four years. Complainant notes that in her November 19,
2003 interview with the Office of Resolution Management, she stated
that she planned on completing her Ph.D in the future but because of
her depression it would �probably� not be for �another year or two.�
Complainant argues that the agency should add another $60,398.00 per year
for the two years that must be added to her loss of wage earning capacity
under the agency calculations. Complainant also noted that she estimated
once she returned to school it would take �four years minimum� to complete
her Ph.D. Complainant cites the supplemental report of Dr. C who states
that �given [complainant's] impairment status, it is highly unlikely that
[she] would be capable of completing class work and then completing and
defending a dissertation, which would be required to obtain a Ph.D.�
Complainant argues that the agency erred when it did not consider
loss of life insurance and retirement benefits in its calculations.
Complainant claims that loss of benefits is not speculative and cites Dr.
C's statement that �[a] benefit program, as offered by State and Federal
agencies, is valued at a minimum of 20% of the gross salary.� Complainant
states that Dr. C added 20% in his calculations of loss of wage earning
capacity.
Complainant claims that the agency erroneously deducted from August
1, 1999, to September 14, 2002, the increase in her service connected
disability from its previously paid back pay award. Complainant notes
that in 2002, the agency paid complainant back pay through September 14,
2002, and as a result she paid $87,061.00 in federal taxes and $13,515.00
in state taxes on this award. She argues that the agency may not deduct
monies previously awarded in a past final order and paid.
Additionally, complainant requests a back pay award through the date of
the final order on future loss wage earning capacity. She notes that the
AJ's decision stated she should be given back pay until it is determined
that she can no longer work. She argues that this determination is
going to be made by the Commission since the agency is claiming that
complainant can work. Thus, she requests back pay be awarded through
the final decision on her loss wage earning capacity.
Finally, complainant seeks interest on her damages award and claims the
agency failed to take disciplinary action as ordered by the Commission.
In response to complainant's appeal, the agency submitted a September
23, 2004 statement. Specifically, the agency states its use of the
annual salary in effect at the time of her termination ($34,000.00)
was the proper salary versus her final salary used to compute back pay
($60,398.00). Additionally, the agency states that the back pay awarded
in this case was appropriately calculated for the period of complainant's
termination, July 16, 1999, through September 13, 2002, the date she
was determined unable to work. The agency argues that if complainant
disagreed with the AJ's Order regarding back pay, she should have appealed
the matter within the appropriate time limit. The agency states that
if the back pay period is extended, then adjustments to back pay must be
made to account for all periods during which complainant was not ready,
willing, or able to perform her duties due to an incapacitating illness.
The agency claims that the record shows that complainant was unable to
work after her termination on July 16, 1999.
The agency argues complainant is not entitled to an interest on her award
of pecuniary damages for loss of future earning capacity. Specifically,
the agency states that interest does not accrue until the agency actually
incurs the liability and argues that since the agency's liability is
the subject of the instant appeal, it does not incur liability until
the Commission decides the matter.
Finally, the agency notes that complainant's claim for loss of future
earning capacity is a type of pecuniary damages and, as such, is
subject to the $300,000.00 compensatory damages cap. The agency notes
that complainant was previously awarded $125,000.00 for non-pecuniary
compensatory damages and thus, argues that she cannot be awarded more than
$175,000.00 in future pecuniary damages for loss of earning capacity.<4>
ANALYSIS
Pecuniary Damages
Section 102(a) of the 1991 Civil Rights Act authorizes an award of
compensatory damages for post-Act pecuniary losses, and the Commission
has authority to award such damages in the administrative process.
See West v. Gibson, 527 U.S. 212 (1999).
Pecuniary damages may be awarded for losses that are directly or
proximately caused by the agency's discriminatory conduct. See EEOC's
Enforcement Guidance: Compensatory and Punitive Damages
Available Under Section 102 of the Civil Rights Act of 1991, EEOC Notice
No. 915.002 at 8 (July 14, 1992) (�Guidance�). Pecuniary losses are
out-of-pocket expenses incurred as a result of the agency's unlawful
action, including job-hunting expenses, moving expenses, psychiatric
expenses, physical therapy expenses, and other quantifiable out-of-pocket
expenses. Id. Past pecuniary losses are losses incurred prior to
the resolution of a complaint through a finding of discrimination,
the issuance of a full-relief offer, or a voluntary settlement. Id. at
8-9. Future pecuniary losses are losses that are likely to occur after
resolution of a complaint. Id. at 9. We note that future pecuniary and
non-pecuniary damages are limited to an aggregate amount of $300,000.00.
For claims seeking pecuniary damages, a complaint should proffer objective
evidence documenting out-of-pocket expenses for all actual costs and
an explanation of the expense, i.e. medical and psychological bills,
other costs associated with the injury caused by the agency's actions,
and an explanation for the expenditure. Id. at 9.
The record contains a September 10, 2002 Fitness for Duty Examination in
which Dr. A examined whether there was any physical or emotional problems
which impacts upon complainant's ability to return to work as a Vocational
Rehabilitation Counselor. Dr. A noted complainant was depressed, had
suicidal thinking, suffered from panic-like attacks and noted that her
PTSD and depressive disorder remained �very symptomatic.� Dr. A found
complainant �unable at the present time to return to her occupation as
a vocational rehabilitation counselor with or without a supervisor due
to her obvious symptoms, which include dissociation and significant
cognitive impairments.� Dr. A noted that it appeared complainant's
�PTSD has stabilized, although remaining very symptomatic during the
past year, based on [the] examination of her. Her major depressive
disorder is somewhat worse as compared to one year earlier. I think it
is very likely both conditions would be exacerbated if she returned to
paid employment, especially in a job similar to her former employment
at the regional office.�
The record contains Dr. C's October 31, 2003 Preliminary Report in which
he conducted �an analysis of [complainant's] employment status and loss,
if any, of potential earning capacity.� Dr. C noted that as a result
of the agency's discriminatory termination, complainant �has become a
severely disabled worker. As such, she is no longer in the labor force
and it is unlikely that she will ever be able to return to any regular
employment.� Thus, Dr. C concluded complainant �has lost the value of
her earning capacity for the remainder of her expected work life.� Dr.
C stated the current monthly salary range for beginning rehabilitation
counselors with in Colorado is $3,193.00 through $4,884.00. Dr. C also
stated that a benefit program, such as the ones offered by the state or
federal government, is valued at a minimum of 20% of the gross salary.
Dr. C noted complainant's starting salary with the agency was $34,000.00.
In his report, Dr. C found if complainant's salary never increased from
her staring salary of $34,000.00, she would have a lost earning capacity
of $612,000.00 ($34,000.00 x 18 years). By adding the value of benefits
(20% of $612,000.00), Dr. C stated that her loss of earnings would
increase by $122,400.00 to $734,400.00. Dr. C noted that complainant
would likely be provided annual salary increases and raises and stated
her loss of earnings would be more than $734,400.00.
The record contains Dr. B's November 5, 2003 Psychiatric Evaluation of
complainant in which he explains that complainant's symptoms of PTSD
initially appeared in 1982, during her military service when she was
stationed in Sicily and under constant threat of terrorism. Dr. B noted
that while in Sicily she experienced two attempted sexual assaults in 1983
and 1984. Additionally, Dr. B noted that �[d]espite the fact that she
won her EEO case against [the agency], her symptoms have remained worse
and include lowered mood, feelings of hopelessness, suicidal ideation,
massively decreased energy, significantly increased irritability, social
withdrawal and isolation, impaired memory, impaired concentration, 30 to
35 pound weight gain, and impaired sleep . . . [and] inability to leaver
her home without her dogs and dissociation.� Dr. B �agree[d] that
all available information indicates that her symptoms did worsen during
her employment at the [agency].� Finally, Dr. B reported that �[h]er
symptoms have not improved sufficiently to allow her to return to work.
On the contrary, I see her as largely housebound, unable to function
without her dogs, and in many ways unable to function at all . . . .
In short, she is incapable of remunerative employment.�
The record contains Dr. C's December 9, 2003 Supplemental Report in
which he notes Dr. B's November 5, 2003 report. Dr. C states that
he recently received copies of agency personnel actions including a
form dated August 16, 1998, stating that complainant was appointed as
a Vocational Rehabilitation Counselor with a total annual salary of
$32,817.00. Dr. C notes that this was the salary used by the agency
to calculate the back pay due complainant.
The record contains Dr. A's December 23, 2003 opinion on the etiological
factors related to her PTSD. Dr. A notes that her PTSD existed prior
to her employment with the agency and were primarily due to the January
5, 1995 sexual assault. He stated that the symptoms of her PTSD were
exacerbated in September 1998, when she had to testify at the appeal of
the man who raped her. Dr. A states that the agency's discrimination
further exacerbated her symptoms. Dr. A maintained that �[i]t is
difficult to apportion the causative factors leading to the exacerbation
of her PTSD, although in [his] opinion the most significant factors were
related to the hostile work environment.�
The record contains Person D's January 8, 2004 opinion regarding the type
of jobs and wages complainant can be expected to earn when she is able
to reenter the workforce. Person D reviewed various Veterans Affairs
rating decisions, Dr. B's November 5, 2003 report, Dr. C's October 31,
2003 report, Dr. A's December 23, 2003 report, and April 2, 2002 notes
from a registered nurse who treated complainant and noted that although
she cannot currently pursue competitive employment, Person D made salary
estimates for rehabilitation counselor positions once complainant is
able to return to work.
The record contains Dr. B's June 22, 2004 Addendum to Psychiatric
Evaluation in which he states that �[b]ased on [his] evaluation, there
is essentially no possibility, in [his] opinion, of [complainant]
returning to full time employment based on the severity of her post
traumatic stress disorder.�
The record contains Dr. C's June 24, 2004 supplement to his October 31,
2003 and December 9, 2003 reports on complainant's lost wage earning
capacity. Dr. C notes that complainant's annual rate of pay in effect
on September 13, 2002, was $60,398.00 and claims that rate should have
been used to determine complainant's loss of wage earning capacity as
opposed to the $34,000.00 annual salary cited in his previous report.
Dr. C found �given her impairment status, it is highly unlikely that
[complainant] would be capable of completing class work and then
completing and defending a dissertation� which is necessary to obtain
a Ph.D. Dr. C states that in the unlikely event complainant does obtain
a Ph.D., �[h]aving a Ph.D. would not change the fact that [complainant]
would have issues with obtaining and maintaining employment and working
on a regular and consistent basis.�
Where complainant has shown that her future earning power has been
diminished as a result of the agency's discrimination, the Commission has
awarded future pecuniary damages for the loss of future earning capacity.
Brinkley v. United States Postal Service, EEOC Request No. 05980429
(August 12, 1999); Hernandez v. United States Postal Service, EEOC Appeal
No. 07A30005 (July 16, 2004). Proof of entitlement to loss of future
earning capacity involves evidence suggesting that the individual's
injuries have narrowed the range of economic opportunities available to
her. Carpenter v. Department of Agriculture, EEOC Appeal No. 01945652
(July 17, 1995). Generally, the party seeking compensation for loss
of earning capacity needs to provide evidence which demonstrates with
reasonable certainty or reasonable probability that the loss has been
sustained. Id. (citing Annotation, Evidence of Impaired Earnings
Capacity, 18 A.L.R. 3d 88, 92 (1968)).
In the present case, as described above, the record contains the September
10, 2002 Fitness for Duty Examination, in which Dr. A determined that
complainant was unable to return to her occupation as a vocational
rehabilitation counselor and maintained it �very likely� that both
her PTSD and major depressive disorder �would be exacerbated if she
returned to paid employment, especially in a job similar to her former
employment at the regional office.� The record also contains Dr. C's
October 31, 2003 report in which he stated that complainant has become �a
severely disabled worker� and found that �it is unlikely that she will
ever be able to return to any regular employment.� In his November 5,
2003 Psychiatric Evaluation, Dr. B found that complainant is �largely
housebound, unable to function without her dogs, and in many ways unable
to function at all.� Dr. B stated that complainant was �incapable of
remunerative employment.� Further, in his December 23, 2003 opinion, Dr.
A stated that �[i]t is difficult to apportion the causative factors
leading to the exacerbation of her PTSD, although in [his] opinion the
most significant factors were related to the hostile work environment.�
We note that in a June 22, 2004 Addendum to Psychiatric Evaluation, Dr.
B declared that �there is essentially no possibility, in [his] opinion,
of [complainant] returning to full time employment based on the severity
of her post traumatic stress disorder.� Finally, in Dr. C's June 24,
2004 supplement, he stated that based on her impairment �it is highly
unlikely that [complainant] would be capable of completing the class
work and then completing and defending a dissertation� which would be
necessary in obtaining a Ph.D. Also, Dr. C noted that in the unlikely
event that she does obtain a Ph.D., that would not change the fact that
complainant �would have issues with obtaining and maintaining employment
and working on a regular and consistent basis.� Therefore, upon review of
the record we find complainant has presented medical evidence establishing
that she is unable to return to work as a direct result of the unlawful
discrimination and has suffered a loss in her future earning capacity.
As a remedy, we order the agency to calculate complainant's loss of
future earning capacity by computing the amount complainant would have
earned if she had remained employed by the agency from September 14,
2002, until retirement. We note while the general retirement age is
65 years old, the agency shall use the appropriate retirement age as
defined by the agency's and Office of Personnel Management's rules.
Cook v. United States Postal Service, EEOC Appeal Nos. 01A02390, 01A03897
(March 13, 2001). In determining complainant's lost earning capacity,
the calculations should include complainant's wages, agency contributions
to health benefits and life insurance premiums, and agency contributions
to Civil Service Retirement or the Federal Employees Retirement System,
and the Thrift Savings Plan. Id.; Finlay v. United States Postal Service,
EEOC Appeal No. 01942985 (April 29, 1997). As further guidance, in the
present case we note that on remand the agency should begin calculating
complainant's loss of future earning capacity using her annual rate of
pay in effect at the time she was determined unable to return to work,
which was $60,398.00.<5>
Under Title VII, awards for loss of future earning capacity are subject
to the statutory cap for compensatory damages�in this case $300,000.00.
42 U.S.C. � 1981a(b)(3)(D). Since complainant was previously awarded
$125,000.00 in non-pecuniary damages, complainant's award for future
pecuniary losses cannot exceed $175,000.00. Because it appears
that the cap on compensatory damages may be met in this case with or
without applying the collateral source rule, we will not address the
appropriateness of the agency's offset of complainant's service connected
disability benefits at this time.
Further, we note that in footnote nine of its final decision on
compensatory damages, the agency stated that it failed to offset
complainant's service connected disability benefits to her previously
awarded back pay award of $160,820.62 and stated that it was applying
such an offset in the present case. We find it is inappropriate for the
agency to offset any money from a previously paid back pay award in the
present decision on loss of wage earning capacity.
Additionally, we reject complainant's request to extend her back pay award
to the date of the final order on future loss wage earning capacity.
We note that in our previous decision the Commission stated that
complainant be awarded back pay from the date of termination to the date
she was determined unable to work. The record reveals that complainant
was determined unable to work as a result of a September 10, 2002 Fitness
for Duty Examination. Thus, we find no basis for extending complainant's
back pay award beyond the date of the Fitness for Duty Examination.
Further, we note complainant should have raised any challenge to the back
pay awarded in our previous decision in a request for reconsideration
and not in the present appeal of the compensatory damages award.
Attorney's Fees
On June 28, 2004, the agency issued a final decision on attorney's fees.
The agency noted that complainant submitted a fee petition dated April 22,
2004, requesting $30,319.52 for attorney's fees and costs. The agency
noted that complainant was requesting $16,838.52 for 79.60 hours of work
performed at the rate of $250.00 per hour for complainant's primary
attorney (Attorney 1) and $175.00 per hour for the associate attorney
(Attorney 2) and $75.00 per hour for the paralegal as well as $1,721.00
in costs. The agency stated complainant also requested $11,760.00 in
fees which it claimed was denied by the AJ on January 15, 2003.
The agency noted that its decision on attorney's fees addresses only those
fees claimed to have been incurred in connection with complainant's appeal
of the agency rescission of its front pay award and the presentation of
her claim for compensatory damages. The agency noted that complainant was
previously awarded and paid $91,160.15 in attorney's fees in connection
with the finding of discrimination on this case.
With regard to complainant's claim for 79.60 hours expended for
representation, the agency excluded 6.20 hours claimed by Attorney 1 for
the period of March 12, 2002 through August 8, 2002, noting that these
hours were previously considered and denied by the AJ in a January 15,
2003 order. The agency also excluded 8.50 hours (approximately 25%) of
the time billed by Attorney 2 as excessive and duplicitous. The agency
noted that Attorney 2 spent 20.80 hours from February 24, 2003, through
February 27, 2003, researching and drafting the response to the agency's
rescission of its final decision as it pertained to an award of front pay.
The agency noted Attorney 2 also spent a total of 13.10 hours from April
7, 2003, through April 10, 2003, researching and drafting the argument
in connection with complainant's claim for damages for loss of future
earning capacity. The agency found 33.90 hours excessive to spend on
these two issues in view of the fact that Attorney 2 has nine years
legal experience in representing client in federal employment matters
and excluded 8.5 hours of the actual 35 hours billed by Attorney 2.
Thus, the agency allowed a total of 64.40 hours and disallowed a total
of 14.70 hours. Additionally, the agency disallowed $11,760.00 in fees
claimed on the grounds that these fees were previously denied by the AJ
in an Order dated January 15, 2003.
The agency awarded the requested .50 hours for preparation of the fee
petition in the present case at the hourly rate of $250.00 per hour.
With regard to the hourly rate claimed in the present fee petition,
the agency reduced the hourly rate charged by Attorney 2 from $175.00
to $125.00. The agency noted in an April 11, 2002 Order, the AJ
issued a decision on the merits of the subject case, finding that
the claimed hourly rate of $250.00 per hour was reasonable for the
services provided by Attorney 1, that the hourly rate of $125.00 for
the services of Attorney 2 was reasonable, and that the hourly rate of
$75.00 for paralegal services was reasonable. The agency notes that in
the present case, the hourly rate of $175.00 was claimed for services
rendered by Attorney 2 with no explanation or justification provided for
the rate increase since entry of the April 11, 2002 Order of the EEOC.
Therefore, the agency awarded the $125.00 hourly rate previously approved
by the EEOC. The agency noted that the record also contains a written fee
agreement between complainant and her attorney which sets forth a hourly
rate of $250.00 per hour for Attorney 1, but does not address the hourly
rate for services provided by Attorney 2 or the paralegal. Accordingly,
the agency found the rate of $250.00 per hour to be reasonable for
Attorney 1, the rate of $125.00 per hour to be reasonable for Attorney 2,
and the rate of $75.00 per hour to be reasonable for paralegal services.
The agency awarded full costs in the requested amount of $1,721.00 for
expert and medical evaluations presented in connection with complainant's
claim of compensatory damages.
Thus, the agency awarded $14,196.00 in total attorney's fees and costs.
Specifically, the agency awarded; Attorney 1 $8,850.00 representing
35.40 hours at $250.00 hourly rate; Attorney 2 $3,312.50 representing
26.50 hours at $125.00 hourly rate; and Paralegal $187.50 representing
2.5 hours at a $75.00 hourly rate. Additionally, the agency awarded
$250.00 for the preparation of the fee petition for a total of .50 hours
at a $250.00 hourly rate. Finally, the agency awarded $1,721.00 in costs.
Complainant filed the present appeal challenging the agency's final
decision on attorney's fees on July 26, 2004. On appeal, complainant
claims that the agency offered no proof that the specific work by
Attorney 2 was excessive. Complainant notes that the billing record
submitted with the Verified Statement of Attorney's Fees and Costs show
that the time billed is �reasoned� and �explained.� Complainant argued
that the agency offered no reasoned explanation for its determination
that such work should have been performed in a shorter time period.
Complainant states that the necessity of this work is supported by the
fact that the issues addressed by Attorney 2 included complex issues, and
noted these issues are still being litigated. Additionally, complainant
notes the agency provides no specific examples of work that Attorney
2's work has been duplicated.
With regard to the agency's reduction of Attorney 2's hourly rate,
complainant states that Attorney 2 is regularly billed out at $175.00
per hour, due to the experience noted in his resume and affidavit.
Complainant notes that Attorney 2 has billed at the rate of $175.00 per
hours since 2002. Further, complainant notes that fees have been awarded
at this rate for Attorney 2 by the Commission in Olison v. Department
of Veterans Affairs, EEOC Hearing No. 320-A1-8129X (August 11, 2003)
and Sainz v. Department of Treasury, EEOC Hearing No. 320-A1-8164X
(April 15, 2003).
Finally, complainant argues that she has already suffered a loss for
attorney's fees incurred when the AJ denied her October 9, 2002 request
for additional attorney's fees. Thus, complainant requests the agency
pay the 8.5 hours in attorney's fees incurred by Attorney 2 and pay the
hourly rate of $175.00 per hour.
It is clear that this Commission may award complainant reasonable
attorney's fees and other costs incurred in the processing of a complaint
regarding allegations of discrimination in violation of Title VII.
See 29 C.F.R. �1614.501(e). Indeed, a finding of discrimination
raises a presumption of entitlement to an award of attorney's fees,
and any such award of attorney's fees or costs must be paid by the
agency that committed the unlawful discrimination. See 29 C.F.R. �
1614.501(e)(1)(i), (ii). The precise amount of attorney's fees due
is typically determined by multiplying the number of hours reasonably
expended by the attorney in question by a reasonable hourly rate. See 29
C.F.R. � 1614.501(e)(2)(ii)(B). This amount is often referred to as the
"lodestar." There is a strong presumption that this amount represents
the reasonable fee, though in limited circumstances, this amount may be
reduced or increased in consideration of the degree of success, quality
of representation, and long delay caused by the agency. 29 C.F.R. �
1614.501(e)(2)(ii)(B). However, any party seeking to deviate from the
lodestar has the burden of justifying the propriety of such a deviation.
See EEO Management Directive-110, at 11-8. In this case, the agency
would have us reduce the lodestar, and thus bears the burden of showing
why the decrease is appropriate. EEO MD-110, at 11- 1.
After a careful review of the fee petition and the statements on appeal,
the Commission finds that the billable hours claimed by Attorney 2 were
not excessive or duplicative but, rather, were reasonable in view of
the complexity of the factual and legal matters at issue, the extent,
and the intensity of the litigation efforts on the part of both parties.
With regard to the 20.80 hours billed by Attorney 2 from February 24,
2003, through February 27, 2003, we find the hours billed were reasonable
and necessary to prepare a response for the agency's unusual step of
rescinding a previously issued final decision. Additionally, we find
the 13.10 hours billed from April 7, 2003, through April 10, 2003,
researching and drafting the argument in connection with complainant's
claim for loss of future earning capacity was reasonable considering the
complexity of the issue. As we find the agency failed to show that the
hours billed by Attorney 2 were duplicative, excessive, or unnecessary,
we decline to reduce the hours billed by Attorney 2.
In the submitted fee petition, Attorney 2 requests compensation at his
current customary hourly rate of $175.00 instead of the hourly rate of
$125.00, which the agency used in its final decision. The agency argues
that the $125.00 hourly rate should apply, noting that in his April 11,
2002 Order, the AJ issued a decision finding discrimination in this
case and finding Attorney 1's $250.00 hourly rate was reasonable and
Attorney 2's hourly rate of $125.00 was reasonable. In connection with
the present attorney's fees petition, Attorney 2 submitted an affidavit
and resume detailing his thirteen years of experience in the field
of employment law. Additionally, the record contains evidence that
Attorney 2 has been awarded an hourly rate of $175.00 for at least two
Commission cases in April 2003 and August 2003. We note that the verified
statement of attorney's fees and costs was submitted on April 22, 2004,
and signed by Attorney 1 who stated that as of that date Attorney 2's
customary hourly charge is $175.00 per hour. Additionally, we note that
on April 15, 2003, an EEOC AJ issued a decision in Sainz v. Treasury,
EEOC Hearing No. 320-A1-8164X, finding Attorney 2's rate of $175.00 per
hour was reasonable for done, in part, prior to October 1, 2002.<6> Thus,
we find Attorney 2's requested rate of $175.00 per hour was reasonable
in the present case.
Additionally, we note on appeal complainant does not challenge the
agency's decision to exclude $11,760.00 in attorney's fees on the grounds
that this request was previously denied by the AJ.
Accordingly, the agency's final decision is MODIFIED and the matter is
REMANDED to the agency for further processing in accordance with the
Order listed below.
ORDER
The agency is ordered to take the following action:
Within 60 calendar days of the date this decision becomes final the
agency shall recalculate complainant's entitlement to future loss of
earning capacity as specified in the above analysis section of this
decision entitled Pecuniary Damages. Additionally, the agency shall pay
complainant the determined amount of future loss of earning capacity and
provide detailed documentation and explanation of all calculations made
to complainant.
Within thirty (30) calendar days of the date this decision becomes final
and, to the extent that it has not already done so, the agency shall
pay $16,838.52 in attorney's fees for services rendered for the period
October 1, 2002, through February 2, 2004, and pay $1,721.00 in costs,
for a total award of $18,559.52 in attorney's fees and 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 evidence that the remedial action
has been implemented.
ATTORNEY'S FEES (H0900)
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 (K0501)
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 19848,
Washington, D.C. 20036. 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 (M0701)
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), 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 19848,
Washington, D.C. 20036. 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 (R0900)
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 (Z1199)
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 that the Court
appoint an attorney to represent you and that the Court permit you
to file the action without payment of fees, costs, or other security.
See Title VII of the Civil Rights 7Act 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 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
July 29, 2005
__________________
Date
1The record reveals that as a reasonable
accommodation, complainant requested to bring her service dogs, two
Siberian Huskies named �Misha� and �Mojo,� to work on an as-needed basis.
2Although the Commission stated that the Fitness for Duty Examination
occurred on September 12, 2002, the record reveals that the examination
occurred on September 10, 2002.
3The agency noted that complainant previously received $160,820.62 in
back pay from July 16, 1999, to September 13, 2002. The agency stated
that since no offset for the increase in the service connected disability
payments was taken at that time, it was now applying the offset in this
case for the period of August 1, 1999, through September 13, 2002.
4Complainant submitted an October 8, 2004 rebuttal to the agency's
September 23, 2004 comments. Since complainant's October 8, 2004
rebuttal is untimely, we will not be addressing those comments in the
present appeal.
5The record contains an SF 50 showing effective September 13, 2002,
complainant was earning $60,398.00.
6We note that Sainz is currently pending appeal before EEOC under
Appeal No. 07A30103; however, the issue of attorney's fees is not raised
on appeal.