Harriet M., Complainant,v.Sonny Perdue, Secretary, Department of Agriculture (Agricultural Research Service), Agency.

Equal Employment Opportunity Commission

Dec 27, 2017

0120150114 (E.E.O.C. Dec. 27, 2017)

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

Harriet M.,
Complainant,

v.

Sonny Perdue,
Secretary,
Department of Agriculture
(Agricultural Research Service),
Agency.

Appeal No. 0120150114

Hearing No. 520-2012-00431X

Agency No. ARS-2011-00946

DECISION

On November 20, 2014, Complainant filed an appeal with the Equal Employment Opportunity
Commission (EEOC or Commission), pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s
October 15, 2014, final decision awarding damages and attorney’s fees, as a result of her having
prevailed on an equal employment opportunity (EEO) complaint alleging employment
discrimination in violation of Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act),
as amended, 29 U.S.C. § 791 et seq.2 For the following reasons, the Commission MODIFIES
the Agency’s final decision.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as an Office Automation
Assistant, GS-5, at the Agency’s Foreign Animal Disease Research Unit in Orient Point, New

1 This case has been randomly assigned a pseudonym which will replace Complainant’s name
when the decision is published to non-parties and the Commission’s website.
2 On October 2, 2014, prior to the issuance of the Agency’s final decision on damages and fees,
Complainant purported to file an appeal in this matter. That filing was premature. However,
since the Agency has subsequently issued its final decision on damages and fees, and, on
November 20, 2014, Complainant filed an appeal from that decision, we will proceed to address
the merits of the appeal.
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York. On October 12, 2011, Complainant filed an EEO complaint alleging that the Agency
discriminated against her on the bases of disability (Post-traumatic Stress Disorder and
depression/anxiety) and in reprisal for prior protected EEO activity when:

1. on August 10, 2011, her request for a reasonable accommodation was denied; and

2. on September 7, 2011, she was suspended without pay for 2 days.

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 EEOC
Administrative Judge (AJ). Complainant timely requested a hearing but subsequently withdrew
her request. Consequently, the Agency issued a final decision on the merits, pursuant to 29
C.F.R. § 1614.110(b), on September 27, 2013.

Finding for Complainant on both claims, the decision concluded that Complainant proved that
the Agency subjected her to discrimination when it denied her a reasonable accommodation and
when it suspended her, and ordered relief including the vacating of the suspension. In a separate
decision, dated October 15, 2014, the Agency awarded Complainant $5,000 in compensatory
damages and $2,967 in attorney’s fees. From the latter decision, Complainant brings the instant
appeal seeking an increase in the amount of damages and fees awarded.

ANALYSIS AND FINDINGS

As this is an appeal from a decision issued without a hearing, pursuant to 29 C.F.R.
§ 1614.110(b), the Agency’s decision is subject to de novo review by the Commission. 29 C.F.R.
§ 1614.405(a). See Equal Employment Opportunity Management Directive for 29 C.F.R. Part
1614, at Chapter 9, § VI.A. (Aug. 5, 2015) (explaining that the de novo standard of review
“requires that the Commission examine the record without regard to the factual and legal
determinations of the previous decision maker,” and that EEOC “review the documents,
statements, and testimony of record, including any timely and relevant submissions of the
parties, and . . . issue its decision based on the Commission’s own assessment of the record and
its interpretation of the law”).

Compensatory Damages

Pursuant to section 102(a) of the Civil Rights Act of 1991, a complainant who establishes his or
her claim of unlawful intentional discrimination may receive, in addition to equitable remedies,
compensatory damages for past and future pecuniary losses (i.e., out of pocket expenses) and
non-pecuniary losses (e.g., pain and suffering, mental anguish). 42 U.S.C. § 1981a(b)(3). In
Jackson v. U.S. Postal Service, EEOC Appeal No. 01923399 (November 12, 1992), the
Commission held that Congress afforded it the authority to award such damages in the
administrative process. See also Turner v. Dept. of the Interior, EEOC Appeal Nos. 01956390
and 01960518 (April 27, 1998).

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With respect to non-pecuniary compensatory damages, these are losses that are not subject to
precise quantification, i.e., emotional pain, suffering, inconvenience, mental anguish, loss of
enjoyment of life, injury to professional standing, injury to character and reputation, injury to
credit standing, and loss of health. See Enforcement Guidance: Compensatory and Punitive
Damages Available under § 102 of the Civil Rights Act of 1991 (EEOC Guidance), EEOC
Notice No. 915.002 at 10 (July 14, 1992). Objective evidence in support of a claim for non-
pecuniary damages claims may include statements from complainant and others, including
family members, co-workers, and medical professionals. See id.; see also Carle v. Dep’t of the
Navy, EEOC Appeal No. 01922369 (Jan. 5, 1993).

Non-pecuniary 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); EEOC 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 (April 15, 1999) (citing Cygnar v. City of Chicago, 865 F. 2d 827,
848 (7th Cir. 1989)).

In this case, Complainant submitted affidavit evidence showing that, as a result of the Agency’s
discriminatory acts, she was depressed, tense, tearful, suicidal, and sleepless. This testimony
was supported by medical evidence. The evidence also showed, however, that the conditions she
experienced pre-dated the Agency’s discriminatory acts. The Agency found that, because her
medical conditions had been exacerbated by the Agency’s actions, Complainant was entitled to
an award of $5,000 for non-pecuniary compensatory damages.

Based on Complainant’s evidence and Commission case precedent, we find that an award of
$5,000 is appropriate. See Young v. Dep’t of Veterans Affairs, EEOC Appeal No. 01A24503
(Sept. 15, 2003) (awarding $ 3,500 for Complainant who was terminated when found unfit for
duty where Complainant provided statement showing he experienced stress, marital strain, and
financial difficulties); Bridges v. Dep’t of Veterans Affairs, EEOC Appeal No. 01997164 (Oct.
6, 2000) (providing Complainant $5,000 for a finding of disability-based discrimination when
forced to resign, citing Complainant’s depression, sleeplessness, anxiety, mental anguish, and
anger); DeVaughn v. U.S. Postal Serv., EEOC Appeal No. 01A34719 (Jan. 7, 2004) (awarding
$5,000 when Complainant was found medically unsuitable and removed from list of eligibility
based on disability and showed that the Agency’s action caused emotional distress, lack of sleep,
loss of appetite, and family and financial problems).

Complainant also sought reimbursement for out-of-pocket medical expenses. The Agency
correctly denied reimbursement on the ground that the Agency’s discriminatory acts were not
shown to be the proximate cause of the claimed damages.

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Attorney’s Fees

By federal regulation, an agency is required to award attorney’s fees and costs for the successful
processing of an EEO complaint in accordance with existing case law and regulatory standards.
EEOC Regulation 29 C.F.R. § 1614.501(e)(1)(H). To determine the proper amount of the fee, a
lodestar amount is reached by calculating the number of hours reasonably expended by the
attorney on the complaint multiplied by a reasonable hourly rate. Blum v. Stenson, 465 U.S. 886
(1984); Hensley v. Eckerhart, 461 U.S. 424 (1983). There is a strong presumption that the
number of hours reasonably expended multiplied by a reasonable hourly rate, the lodestar,
represents a reasonable fee, but this amount may be reduced or increased in consideration of the
degree of success, quality of representation, and long delay caused by the agency. 29 C.F.R.
§ 1614.501(e)(2)(ii)(B).

Complainant seeks reimbursement at the rate of $400 per hour for 17.16 hours expended by her
attorneys. The Agency does not contend that the number of hours expended was unreasonable. It
does, however, argue that the $400 per hour rate is excessive. Typically, a fee petition will
contain sworn evidence establishing the professional experience of each attorney for whom
reimbursement of fees is sought, including evidence of the hourly rate each attorney regularly
charges his or her clients. Equal Employment Opportunity Management Directive for 29 C.F.R.
Part 1614 (EEO MD-110), at Chap. 11 § VI.G (Aug. 5, 2015). Complainant provided no such
evidence here.

Relying on publicly available information on prevailing rates for legal services in the area of
New York State where Complainant’s counsel practices, together with representations in
Complainant’s fee petition, the Agency calculated the fee award to which Complainant was
entitled. The Agency determined that 9.6 hours should be compensated at the rate of $250 per
hour, representing the work of a senior associate and that 7.56 hours should be compensated at
the rate of $75 per hour, representing the work of a paralegal. This yielded a total fee award of
$2,967.

We agree with Complainant that the total fee awarded should be increased. The record shows
that the individual the Agency identified as JF, a paralegal is, in actuality, an attorney, a
practicing member of the New York State bar with several years of legal experience. The 7.56
hours JF expended providing legal services to Complainant should have compensated at the rate
of $200 per hour, appropriate for a junior associate. This yields a total fee for JF’s services of
$1,512.00. The total to be awarded for both attorneys’ time is $3,912.00

CONCLUSION

Based on a thorough review of the record and the contentions on appeal, including those not
specifically addressed herein, we MODIFY the Agency’s final decision regarding compensatory
damages and attorney’s fees.
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ORDER

Within sixty (60) calendar days from this decision is issued, the Agency, to the extent it has not
already done so, is ORDERED to take the following actions with regard to compensatory
damages and attorney’s fees:

1. The Agency shall pay Complainant $5,000.00 in non-pecuniary damages.

2. The Agency shall pay Complainant $3,912.00 in attorney’s fees.

The Agency is further directed to submit a report of compliance in digital format as provided in
the statement entitled "Implementation of the Commission's Decision." The report shall be
submitted via the Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). Further,
the report must include evidence that the corrective action has been implemented.
ATTORNEY'S FEES (H1016)

If Complainant has been represented by an attorney (as defined by 29 C.F.R.
§ 1614.501(e)(1)(iii)), 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 the date this decision was issued. 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 (K0617)

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 in the digital format required by the Commission, and submitted via
the Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). 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
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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 (M0617)

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. A party
shall have twenty (20) calendar days of receipt of another party’s timely request for
reconsideration in which to submit a brief or statement in opposition. 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.
Complainant’s request may be submitted via regular mail to P.O. Box 77960, Washington, DC
20013, or by certified mail to 131 M Street, NE, Washington, DC 20507. In the absence of a
legible postmark, the request to reconsider shall be deemed timely filed if it is received by mail
within five days of the expiration of the applicable filing period. See 29 C.F.R. § 1614.604. The
agency’s request must be submitted in digital format via the EEOC’s Federal Sector EEO Portal
(FedSEP). See 29 C.F.R. § 1614.403(g). The request or opposition must also include proof of
service on the other party.
Failure to file within the time period will result in dismissal of your request for reconsideration
as untimely, unless extenuating circumstances prevented the timely filing of the request. Any
supporting documentation must be submitted with your request for reconsideration. The
Commission will consider requests for reconsideration filed after the deadline only in very
limited circumstances. See 29 C.F.R. § 1614.604(c).

COMPLAINANT’S RIGHT TO FILE A CIVIL ACTION (T0610)

This decision affirms the Agency’s final decision/action in part, but it also requires the Agency
to continue its administrative processing of a portion of your complaint. You have the right to
file a civil action in an appropriate United States District Court within ninety (90) calendar
days from the date that you receive this decision on both that portion of your complaint which
the Commission has affirmed and that portion of the complaint which has been remanded for
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continued administrative processing. In the alternative, you may file a civil action after one
hundred and eighty (180) calendar days of the date you filed your complaint with the Agency,
or your appeal with the Commission, until such time as the Agency issues its final decision on
your complaint. If you file a civil action, you must name as the defendant in the complaint the
person who is the official Agency head or department head, identifying that person by his or her
full name and official title. Failure to do so may result in the dismissal of your case in court.
“Agency” or “department” means the national organization, and not the local office, facility or
department in which you work. If you file a request to reconsider and also file a civil action,
filing a civil action will terminate the administrative processing of your complaint.

RIGHT TO REQUEST COUNSEL (Z0815)

If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may
request permission from the court to proceed with the civil action without paying these fees or
costs. Similarly, if you cannot afford an attorney to represent you in the civil action, you may
request the court to appoint an attorney for you. You must submit the requests for waiver of
court costs or appointment of an attorney directly to the court, not the Commission. The
court has the sole discretion to grant or deny these types of requests. Such requests do not alter
the time limits for filing a civil action (please read the paragraph titled Complainant’s Right to
File a Civil Action for the specific time limits).

FOR THE COMMISSION:

______________________________ Carlton M. Hadden’s signature
Carlton M. Hadden, Director
Office of Federal Operations

December 27, 2017
Date