11980024
06-29-2001
Jay Janssen, Complainant, v. Board of County Commissioners, County of Fremont, Colorado, Respondent.
Jay Janssen v. Board of County Commissioners, County of Fremont, Colorado
11980024
June 29, 2001
.
Jay Janssen,
Complainant,
v.
Board of County Commissioners,
County of Fremont, Colorado,
Respondent.
Appeal No. 11980024
Hearing Nos. 320-97-0031; 320-97-0529; 320-97-0677
FINAL DECISION
INTRODUCTION
The parties both timely initiated appeals from the June 22, 2000 decision
of a U.S. Administrative Law Judge (ALJ) on complainant's equal employment
opportunity (EEO) complaints of unlawful retaliation in violation of �
304 of the Government Employee Rights Act of 1991(GERA), as amended,
2 U.S.C. � 1220. The appeals are accepted pursuant to 29 C.F.R. �
1603.101 et seq. For the following reasons, the ALJ's decision is
AFFIRMED IN PART AND REVERSED IN PART.
ISSUE PRESENTED
The issue presented on appeal is whether the ALJ's determination that
complainant proved respondent retaliated against him in violation of
GERA constitutes a correct interpretation of the applicable laws, rules,
regulations, and policy directives, and is supported by the record as
a whole.
BACKGROUND
The record reveals that on September 1, 1993, complainant was appointed
by the Fremont County, Colorado Board of County Commissioners to the
Emergency Management Office as a temporary part-time employee, without
benefits. On October 1, 1993, he was appointed to the position of Director
of the Office of Emergency Management. On January 1, 1994, he became a
regular part-time employee with benefits, and then on January 1, 1995,
his position was changed to full-time. The position remained full-time
for 1996, but thereafter was converted to a part-time contract position
for which complainant was not selected.
Complainant was initially hired in 1993 to prepare the county's emergency
management plan. However, the responsibilities of the job changed when it
became a full-time position. For the September 1, 1994 to September 1,
1995 evaluation period, complainant was rated "Fully Competent" on his
Conformance to Normal Work Standards, "Needs Improvement" in Independence
of Action and Communication Skills, "Fully Competent" in Commitment to
Safety, and "Unsatisfactory" in Working Relationships, and received a
4% salary increase. The Performance Management Report prepared by the
Commissioners for this evaluation period had directed complainant to
finish the emergency management plan by October 1, 1995, but it was not
completed until February 1996. The Commissioners concluded, however, that
complainant did a "very good job" preparing the plan and was instrumental
in centralizing county emergency services. For the September 1, 1995
to September 1, 1996 rating period, complainant received a rating of
"Commendable" in Job Knowledge, Quality of Work, Job Planning, and
Attendance/Punctuality, and "Satisfactory" in Initiative/Ingenuity.
Commissioner S, a Commissioner from 1993-96, criticized complainant
for not being a team player, because he had upset people in other
organizations. For example, in 1995 and 1996, both Commissioner S and
another Commissioner were advised by other county agencies, including
two fire departments and the county ambulance service, that they had
problems with complainant's performance of his duties, specifically
because complainant did not recognize that his function was to serve as
a resource to all agencies rather than an interagency head who directed
the coordination of all the emergency service providers.
While complainant was supervised by the Board of County Commissioners, the
County's Finance Director (FD) supervised him in matters of attendance,
time, and budget. Complainant worked out of the county courthouse
facility along with FD and FD's subordinate, the Finance Department
Coordinator (FDC). In 1993, FD and FDC developed a consensual romantic
relationship which continued through the time relevant to the instant
complaints. Complainant had various conflicts with FDC relating to
her locking of the office door during lunch hours, and complainant
wrote a March 15, 1996 memorandum to FD protesting FDC's behavior.
On several occasions, FDC denied complainant's expense reimbursement
requests because he submitted photocopies of his receipts rather
than the originals, notwithstanding that one of the Commissioners had
authorized such reimbursements on at least one occasion. On more than
one occasion, FDC was directed by one or more Commissioners to get along
with complainant. However, she was never disciplined by FD for her role
in any of her office problems with complainant.
By spring of 1996, the Commissioners had discussed the possibility of
making the Emergency Management Director position a contract position.
In July, 1996, complainant was asked to prepare a 1997 budget request
for funding at the 50% level. Complainant never prepared the requested
budget, and instead created a list of all his responsibilities as set
forth in the Emergency Management Plan. In September, 1996, complainant
and Commissioner S discussed the possibility of complainant becoming
a half-time director of emergency management and half-time computer
specialist with the county.<1> Complainant told Commissioner S that he
was not interested in two half-time positions.
On October 4, 1996, complainant filed EEOC complaint no. 320-97-0031
(complaint #1), alleging that as a consequence of the personal
relationship between FD and FDC, he had been subjected to what he
characterized as "third party sexual harassment," in that FDC had been
treated more favorably by FD as a result of their personal relationship.
Complainant further contended that as a result of his criticisms of FDC,
he had been subjected to retaliatory harassment and disparate treatment,
denial of a wage increase in April, 1996, and a change from full-time
to part-time status in July, 1996. The Commissioners learned about
the complaint on October 23, 1996. Commissioner S testified, and the
ALJ found, that complainant then told two other courthouse employees
that the Commissioners could not do anything to him because he filed an
EEOC complaint and any action by the Commissioners would be considered
retaliation. Commissioner S further testified that complainant thereafter
came and left work when he felt like it and switched his scheduled work
days without permission, which complainant denies.
On November 4, 1996, Commissioner S sent a memorandum to complainant
requesting a list of office software, back-up tapes, and other
county-owned property, as well as a written report of the passwords used
on the computer system. Commissioner S testified that this request was
made, inter alia, because of an apparent fear that complainant would
sabotage the office, and based on the alleged change in complainant's
attitude and demeanor. The ALJ specifically found that this fear
was not well-founded, that the record established that complainant was
conscientious about his work, and that the action constituted evidence
of retaliatory intent.
On November 9 and 10, 1996, the county placed a newspaper advertisement
for a Contract Emergency Management Coordinator position, and by
memorandum dated November 21, 1996, complainant was officially notified
that the Emergency Management position he occupied was to become a
contract position effective January 1, 1997. In late November, 1996,
two individuals submitted bids for $16,700 and $16,500, and both were
selected for interviews. Complainant submitted a bid for $15,631,
but was not selected for an interview.
Commissioner S submitted his own bid for the new contract position
in the amount of $20,000, and did not participate in the selection of
the independent contractor. Commissioner S did not win re-election in
November, 1996, but continued to participate in the board's business
as described herein until his term formally concluded in January, 1997.
Meanwhile, however, one of the newly elected board members, Commissioner
J, began participating in various board deliberations upon his election
in November, 1996, including the decision regarding which candidates
to interview for the new contract position, notwithstanding that he was
not formally installed until January 1997. See Hearing Transcript (HT)
at 275.
Commissioner R testified that complainant was not selected for an
interview because it appeared from his bid that he sought to serve in
the position as an employee rather than as an independent contractor.
Commissioner R acknowledged that in some bid situations, if there were
any misunderstandings, the Commissioners would talk to the bidders to
understand the differences in their bids and place all bidders on an
equal footing. However, Commissioner R did not undertake to clarify
this employee/independent contractor ambiguity with complainant.
On Friday night, December 6, 1996, complainant asked the custodian to
let him into the locked office of the county Clerk and Recorder, for
purposes of gaining access to the postage machine. At approximately 8:30
p.m, Commissioner S received a telephone call at home from the custodian
asking if she should allow complainant entry, and Commissioner S said no.
Complainant then had an altercation with the custodian, and the incident
was brought to the attention of the Commissioners. The ALJ specifically
found that complainant had been authorized to use the postage meter in
the office of the Clerk and Recorder to do Emergency Preparedness Program
mailings, and had been allowed access to the office on more than a half
dozen occasions, including after business hours.
At a fifteen-minute meeting with complainant on December 9, 1996,
the Commissioners discussed his performance evaluation for the period
September 1, 1995 to September 1, 1996, and the December 6, 1996 incident
with the custodian. Complainant was rated as commendable in four areas
but was given only a 1% salary increase, and was advised that he was on
administrative leave until December 31, 1996, at which point his job would
be terminated. On complainant's December 13, 1996 written notification
of termination, Commissioner R stated that complainant's separation
was necessary because his position was scheduled to be replaced by a
contract position effective January 1, 1997. Commissioner R testified
while complainant had been "a good employee as far as production of the
plan," he had experienced personality conflicts with county employees
and the public, and the incident with the custodian was "the straw that
broke the camel's back in reference to trying to do what we could to keep
[complainant] on as a county employee." HT at 362. The ALJ found that
Commissioner S stated to complainant in this meeting "...you've gotten
us into a lot of trouble," referring to complainant's October 4, 1996
EEOC complaint.<2>
On December 20, 1996, complainant filed EEOC complaint no. 320-97-0529
(complaint #2), alleging that in retaliation for filing his October 4,
1996 EEOC complaint, his annual performance review was postponed, and he
was notified on December 9, 1996 that he would be discharged effective
the end of the month. Complaint #2 was mailed by the EEOC to the county
on January 7, 1997. On January 3, 1997, complainant was advised that
he would not be interviewed for the contract position. On February
7, 1997, complainant filed complaint no. 320-97-0677 (complaint #3),
alleging that in further retaliation for his October, 1996 EEO complaint,
he was denied an interview for the new contract Emergency Manager position
which replaced his former position.
By letter dated October 9, 1997, the Commission referred these three
complaints to the United States Coast Guard Administrative Law Judge
Program for adjudication in accordance with 20 C.F.R. � 1603.201, pursuant
to a Memorandum of Understanding. The county filed a motion to dismiss,
contending that: (1) GERA violates the Tenth Amendment to the United
States Constitution; and (2) GERA, even if upheld as constitutional,
on its face only prohibits discrimination, not retaliation. Complainant
subsequently withdrew his October 4, 1996 complaint (complaint #1), and
the ALJ held a hearing on the remaining two complaints on June 28-29,
1999. At the commencement of the hearing, the ALJ ruled that the county's
motion to dismiss on Tenth Amendment grounds was reserved to be raised
in another forum, but that the ALJ had no jurisdiction to rule on it.
By decision issued June 22, 2000, the ALJ denied the remainder of the
county's motion to dismiss, and found complainant established retaliation
with respect to his December 9, 1996 placement on administrative leave
and his subsequent non-selection for the new contract Emergency Manager
position. The ALJ awarded complainant lost earnings and attorney's fees
and costs, but denied other relief on the ground that complainant had
"unclean hands." The instant appeals followed. In light of the appeals,
the ALJ did not rule on the complainant's petition for attorney's fees
and costs, but rather forwarded it to this Commission, following which
the parties submitted briefs on the issue of fees and costs.
On appeal, the county contends: (1) GERA does not prohibit retaliation,
and construing it to do so violates the Tenth Amendment; and (2) the
ALJ's finding of retaliation is not supported by substantial evidence,
and further, is based on legal error. In addition to opposing the
county's arguments, complainant contends in his separate appeal that
the ALJ erred in finding that complainant had "unclean hands," and in
denying compensatory damages on this basis.<3>
ANALYSIS AND FINDINGS
Pursuant to 29 C.F.R. � 1603.301, any party may appeal to this Commission
a decision rendered by an ALJ under 29 C.F.R. � 1603.217. Such an
appeal must set forth arguments or evidence that tends to establish
that the ALJ's decision: (1) is not supported by substantial evidence;
(2) contains an erroneous interpretation of law, regulation, or material
fact, or misapplication of established policy; (3) contains a prejudicial
error of procedure; or (4) involves a substantial question of law or
policy. 29 C.F.R. � 1603.303(c). 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).
1. Jurisdiction
The county concedes that from October 1, 1993 through December 31,
1996, complainant was an appointee of the Board of County Commissioners
and served on the policymaking level within the meaning of GERA,
2 U.S.C. � 1220(a)(2), and thus was subject to coverage under the
statute's anti-discrimination provisions. However, the county contends
that GERA does not prohibit retaliation against covered employees, and
that this Commission's regulations implementing GERA exceed the scope of
the statute by expressly providing for retaliation claims to be raised.
See 29 C.F.R. � 1603.102.
GERA provides, in pertinent part, that all personnel actions affecting
covered employees shall be made free from discrimination based on: "(1)
race, color, religion, sex, or national origin, within the meaning of
section 2000e-16 of Title 42; (2) age, within the meaning of section 633a
of Title 29; or (3) disability, within the meaning of section 791 of Title
29 and sections 12112 to 12114 of Title 42." 2 U.S.C. � 1202(a)(1).
Although the referenced section of Title VII, 42 U.S.C. � 2000e-16,
does not enumerate retaliation, it expressly provides that 42 U.S.C. ��
2000e-5(f)-(k) apply to federal government employees, and � 2000e-5(g)
expressly incorporates the anti-retaliation provision contained in �
2000e-3(a). For this reason, it is well-settled that � 2000e-16 of
Title VII nonetheless proscribes retaliation against federal employees.
See Ray v. Henderson, 217 F.3d 1234 (9th Cir. 2000); Justes v. Equal
Employment Opportunity Commission, EEOC Request No. 05921045 (April 8,
1993) (citing Aeon v. Sampson, 547 F.2d 446, 449-50 (9th Cir. 1976));
Hale v. Marsh, 808 F.2d 616, 619 (7th Cir. 1986); Metz v. Department
of Health and Human Services, EEOC Appeal No. 01873010 (February 10,
1988). Moreover, as the parties note, at least one court has implicitly
acknowledged GERA's coverage of retaliation claims. See Stitz v. City
of Eureka, 9 F. Supp.2d 1046 (W.D. Ark. 1998) (district court dismissed
Title VII retaliation claim, noting that complainant was instead covered
under GERA). Accordingly, we find that the ALJ correctly permitted
complainant to raise a claim of retaliation under GERA.
With respect to the county's contention that GERA or the
Commission's regulations thereunder violate the Tenth Amendment
to the U.S. Constitution, we find this contention without merit.
The U.S. Supreme Court has held that pursuant to the Tenth Amendment,
"[t]he Federal Government may neither issue directives requiring the
States to address particular problems, nor command the States' officers,
or those of their political subdivisions, to administer or enforce a
federal regulatory program." Printz v . United States, 521 U. S. 898,
935 (1997). However, laws which "regulate state activities," rather
than "seek to control or influence the manner in which States regulate
private parties," do not implicate the Tenth Amendment. South Carolina
v. Baker , 485 U. S. 505, 514-15 (1988); see also Reno v. Condon, 120
S. Ct. 666 (2000) (Driver's Privacy Protection Act does not violate Tenth
Amendment because it does not require States in their sovereign capacity
to regulate their own citizens, but rather applies to States in their
capacity as database owners); Garcia v. San Antonio Metropolitan Transit
Authority, 469 U.S. 528 (1985) (application of the Fair Labor Standards
Act to state governments is constitutional because it applies to states
in their capacity as employers). Inasmuch as GERA neither requires the
state to regulate nor forces participation of state executive officers in
the administration of a federal program, it does not violate the Tenth
Amendment, and the county's constitutional defense to the instant claim
is therefore without merit.
2. Retaliation Claims
In order to prevail on a claim of retaliation, complainant must establish
by a preponderance of the evidence: (1) he engaged in opposition to
discrimination or participation in covered proceedings; (2) the employer
took an adverse action against him; and (3) there is a causal connection
between the protected activity and the adverse action. EEOC Compliance
Manual, Section 8 (Retaliation) at 8-3 (May 20, 1998).
The county contends that complainant's placement on paid administrative
leave during the period December 9-31, 1996 is not cognizable as
retaliation. Specifically, the county asserts that complainant was
not terminated, but rather was placed on paid leave through the end
of his term of employment, whereupon his position was converted to an
independent contractor position for which complainant was not selected.
The county relies on case law holding that only actions which affect
the terms, conditions or privileges of employment, or adversely affect
an individual's status as an employee, are cognizable as retaliation.
However, the Commission has previously rejected this restrictive
interpretation, instead defining retaliation to encompass "any adverse
treatment that is based on a retaliatory motive and is reasonably
likely to deter the charging party or others from engaging in protected
activity." EEOC Compliance Manual, Section 8 (Retaliation) at 8-13 -
8-14 (May 20, 1998) (citing and specifically declining to follow cases
similar to those upon which the county relies). Both complainant's
placement on administrative leave, and his non-selection for the new
contract position, are actionable as retaliation under this standard.<4>
The county further contends that complainant lodged his October 4, 1996
EEOC complaint in bad faith, not believing that the legal claim which
he termed "third party sexual harassment" was in fact cognizable as a
matter of law or supported as a matter of fact, and that any resulting
retaliation therefore does not give rise to a cognizable claim due to
the alleged lack of a good faith basis for the protected activity. It is
possible complainant was attempting to raise a claim of harassment based
on sexual favoritism, see EEOC Policy Guidance on Employer Liability
Under Title VII for Sexual Favoritism N-915.048 (January 12, 1990),
although it does not appear from the established facts that complainant
would have prevailed under that theory. Nevertheless, it is clear that
complainant's filing of his October 4, 1996 EEOC complaint constituted
the type of protected activity known as "participation," rather than
"opposition," and therefore we do not examine the question of whether
the complaint was filed in good faith. As we have previously noted:
The anti-discrimination statutes do not limit or condition in any way
the protection against retaliation for participating in the charge
process. While the opposition clause applies only to those who protest
practices that they reasonably and in good faith believe are unlawful,
the participation clause applies to all individuals who participate in the
statutory complaint process. Thus, courts have consistently held that a
respondent is liable for retaliating against an individual for filing an
EEOC charge regardless of the validity or reasonableness of the charge.
To permit an employer to retaliate against a charging party based on its
unilateral determination that the charge was unreasonable or otherwise
unjustified would chill the rights of all individuals protected by the
anti-discrimination statutes.
EEOC Compliance Manual, Section 8 (Retaliation) at 8-10 (May 20, 1998).
Accordingly, even assuming arguendo complainant's complaint had not
been filed in good faith, the county is incorrect in contending that
his retaliation claim would therefore not be cognizable.
Applying the foregoing legal standards, we find that the ALJ's finding
of retaliatory intent is supported by substantial evidence. In so
concluding, we note that the ALJ specifically credited complainant's
testimony that Commissioner S told him, while announcing in the December
9, 1996 meeting that complainant was being placed on administrative leave,
"you've caused us a lot of trouble," referring to the filing of the
October 4, 1996 EEOC complaint. While we do not agree with complainant's
characterization of this remark as direct evidence of retaliatory intent,
it is nonetheless very persuasive indirect evidence that the county's
proffered reasons for placing complainant on administrative leave and
not selecting him for a contract position interview were a pretext
for retaliation. The ALJ specifically found Commissioner S's denial
that he made the remark was not credible. See ALJ Decision at 31 �13.
The ALJ further found that while the Commissioners cited the December
6, 1996 altercation with a custodian as the determining factor in their
decision to place complainant on administrative leave, the Commissioners
never investigated the incident, as evidenced by the fact that in the same
fifteen-minute meeting in which they ostensibly inquired of his version
of events, they informed complainant that he could not return to work.
The ALJ also specifically found that the Commissioners' alleged fear of
computer sabotage by complainant was completely unfounded, and that the
implausibility of their proffered explanations for their actions with
respect to complainant's computer materials constituted further evidence
of pretext for complainant's placement on immediate administrative leave
and his non-selection for the contract position.
Moreover, we note that the ALJ specifically found that the Commissioners'
testimony regarding the alleged deficiencies in complainant's bid for the
contract position were not credible, and that their lack of credibility
constituted further evidence of pretext.<5> There is ample evidence in
the record to support this credibility determination. Some Commissioners
testified that complainant's bid was not the lowest because it appeared
to indicate that he wanted to use the county postage machine, and to
participate in social security and income tax withholding as well as the
county retirement plan, thus purportedly indicating his intent to seek
the position as an employee rather than as an independent contractor.
See HT at 270. However, Commissioner J<6> conceded that while none of
these matters were clear from complainant's bid itself, the Commissioners
nonetheless never asked complainant about it "because he wasn't our
final choice." See HT at 276. This undermines the other Commissioners'
contention that complainant's apparent reference to these items in his
bid was the motivating reason for his non-selection.
In addition, Commissioner J conceded that one of the two candidates
interviewed "didn't have a clue" about emergency management, (HT)
at 276-77, and that neither interviewee went into as much detail as
complainant regarding what he or she would do if awarded the bid, HT at
278. He further testified that with respect to the other Commissioners'
testimony that the postage costs included in complainant's bid were a
dispositive factor in complainant's non-selection, even if complainant
had used the expected amount of reasonable postage, his bid would still
have been the lowest. HT at 277. Moreover, he admitted that it was
unclear from the selectee's bid, which referred to seeking reimbursement
for office supplies, whether he was also, like complainant, proposing
to receive reimbursement for postage, HT at 278-79, and further, that
this item was also unclear on the other interviewee's bid, HT at 280.
Additionally, while Commissioner R testified that it was not really
the finances of complainant's bid but rather complainant's December 6
altercation with the custodian that was "the straw that broke the camel's
back" and resulted in the county's actions, he conceded that immediately
preceding the altercation, he gave complainant an appraisal deeming his
performance "commendable" in several rating categories and "satisfactory"
in the others. HT at 380. This undermines Commissioner R's contention
that any criticisms about complainant received prior to the December
6 altercation had been deemed as serious as the county now contends.
For these reasons, the ALJ's finding of retaliatory intent is supported
by substantial evidence in the record.
In reaching this conclusion, we neither rely on nor reach the ALJ's
findings that the county's denial to complainant of appeal procedures
and other process allegedly due under its policies constituted evidence
of pretext. While the parties dispute whether such protections applied
to complainant's position, we find that the ALJ's finding of retaliatory
intent is supported by substantial evidence without reference to the
denial of these procedures. Moreover, we do not rely on or reach the
ALJ's commentary regarding the impropriety of the county permitting FD to
supervise FDC in light of their known involvement in a consensual romantic
relationship. Rather, we direct the county to the above-referenced EEOC
Policy Guidance regarding sexual favoritism claims under Title VII as
a resource for management.
3. Compensatory Damages
GERA provides that where a violation of the statute is found, compensatory
damages are available as a remedy as would be appropriate if awarded,
inter alia, under 42 U.S.C. � 1981a. That section of the Civil Rights
Act of 1991 authorizes an award of compensatory damages for post-Act
pecuniary losses, and for non-pecuniary losses, such as, but not limited
to, emotional pain, suffering, inconvenience, mental anguish, loss
of enjoyment of life, injury to character and reputation, and loss of
health. To receive an award of compensatory damages, a complainant must
demonstrate that he has been harmed as a result of proven discriminatory
action; the extent, nature and severity of the harm; and the duration
or expected duration of the harm. Rivera v. Department of the Navy,
EEOC Appeal No. 01934157 (July 22, 1994), request for reconsideration
denied, EEOC Request No. 05940927 (December 11, 1995); EEOC's Enforcement
Guidance: Compensatory and Punitive Damages Available Under Section
102 of the Civil Rights Act of 1991 (Guidance), EEOC Notice No. 915.002
at 11-12, 14 (July 14, 1992). Compensatory damages may be awarded for
pecuniary losses that are directly or proximately caused by the agency's
discriminatory conduct. See Guidance at 8.
a. Lost Earnings
The ALJ awarded complainant an amount styled as "back pay" based on the
payment it is estimated he would have received if he had been selected for
the new Emergency Management contract position for calendar year 1997.
The lost earnings at issue would be characterized as "back pay" only if
the retaliatory non-selection had been for an employment position with
the county. Inasmuch as the parties appear to concur that the position
for which complainant was not selected was an independent contractor
position, the amount complainant would have earned had he been selected,
which the ALJ calculated based on a one-year contract, is properly
characterized as an item of compensatory damages, not "back pay."
The county contends that complainant is not entitled to the amount
awarded because, even assuming he prevailed on his claims, he was paid
through "the end of his service" on December 31, 1996, following which
his position became an independent contract position for which he was not
selected. The county's argument is without merit, inasmuch as complainant
prevailed on his claim of retaliatory non-selection, and accordingly
is entitled to lost earnings, as an item of compensatory damages, for a
pecuniary loss proximately caused by the agency's discriminatory conduct.
As such, the amount the ALJ properly awarded complainant lost earnings,
reflecting what he would have earned had he been selected, less any
interim earnings.
b. Non-pecuniary losses
Complainant contends that the ALJ's finding of "unclean hands" is not
supported by substantial evidence, and that the denial of compensatory
damages for non-pecuniary losses on this basis was erroneous. We agree.
The ALJ based her finding of "unclean hands" primarily on hearsay
testimony by Commissioner S that two employees had told him that
complainant told them no adverse action could be taken against him
now that he had filed an EEO complaint because it would constitute
retaliation. Complainant denied making the statement. The two employees
to whom complainant allegedly made the statement did testify at the
hearing, but they were not asked about and did not address this matter.
The ALJ provided counsel for both parties an opportunity to recall the
witnesses to testify on this point, but both declined, with complainant's
counsel noting that it was the county, not complainant, who bore the
burden of proof on the question of complainant's alleged bad faith.
See HT at 369. Based on a careful review of the record, we find that
even assuming arguendo complainant made the statement attributed to him,
the statement is insufficient evidence to support the ALJ's factual
finding that complainant filed his October, 1996 EEO complaint in bad
faith. Because this factual finding is not supported by substantial
evidence, we will not defer to it, and we therefore do not reach the legal
question of whether or not such a finding would bar compensatory damages.
In light of our finding, we proceed to analyze complainant's claim for
non-pecuniary compensatory damages, the evidence relating to which was
submitted into the record at the hearing.
Non-pecuniary damages constitute the sums necessary to compensate the
injured party for actual harm, even where the harm is intangible. Carter
v. Duncan-Higgins, Ltd., 727 F.2d 1225 (D.C. Cir. 1984). A compensatory
damage award should take into account the severity and duration of the
harm. Carpenter v. Department of Agriculture, EEOC Appeal No. 01945652
(July 17, 1995). The Commission notes that the amount of a non-pecuniary
damage 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 by the Commission in similar cases. See Ward-Jenkins
v. Department of the Interior, EEOC Appeal No. 01961483 (March 4, 1999)
(citing Cygnar v. City of Chicago, 865 F.2d 827, 848 (7th Cir. 1989)).
In the instant case, complainant testified that as a result of the
county's actions, he suffered emotional distress. Specifically, he
testified that he experienced sleeplessness, anger, and resentment,
and also that he felt embarrassment when he had to explain to others,
and in particular his parents and his son, that he was no longer working.
See HT at 109. Moreover, he felt that his positive reputation in the
community suffered because of the county's actions. Id. at 110-11.
No other witnesses testified, and complainant did not submit any medical
evidence of his symptoms or seek treatment for same. Considering damage
awards in other cases, we award complainant $10,000 in non-pecuniary
compensatory damages. See, e.g., Butler v. Department of Agriculture,
EEOC Appeal No. 01971729 (April 15, 1999) ($7,500 in non-pecuniary damages
based on complainant's testimony regarding his emotional distress);
Hull v Department of Veteran Affairs, Appeal No. 01951441 (September 18,
1998) ($12,000 in non-pecuniary damages based on complainant's testimony
of emotional distress due to retaliatory harassment); Miller v. United
States Postal Service, EEOC Appeal No. 01956109 (January 23, 1998) ($7,500
in non-pecuniary damages where the complainant produced scant evidence
to support his claim); compare Bever v. Department of Agriculture,
EEOC Appeal No. 01953949 (October 31, 1996) ($15,000 in non-pecuniary
damages for situational anxiety, as shown by medical evidence, caused
by discriminatory denial of promotion, where complainant's ability to
socially interact was seriously affected).
Attorney's Fees
Complainant is entitled to an award of attorney's fees and costs,
in accordance with existing law, for the successful processing of an
EEO complaint under GERA. See 2 U.S.C. � 1220(e). The fee award is
ordinarily determined by multiplying a reasonable number of hours expended
on the case by a reasonable hourly rate, also known as a �lodestar.�
See Blum v. Stenson, 465 U.S. 886 (1984).
a. Hourly Rate
The Supreme Court has held that the reasonable hourly rate for
statutory fee cases is to be determined by the �prevailing market
rates in the relevant community.� Blum, 465 U.S. at 895. For the
purpose of determining the prevailing market rate, the relevant
community is the area where the employer and complainant are located.
Black v. Department of the Army, EEOC Appeal No. 01921158 (January 14,
1993). This proposition has also been accepted by various federal courts.
See Barjon v. Department of the Navy, 132 F.3d 496, 500 (9th Cir. 1997)
(stating that the relevant community for determination of attorney's fees
is generally the forum in which the district court sits); see also Rum
Creek Coal Sales, Inc. v. Caperton, 31 F.3d 169, 197 (4th Cir. 1994);
Donnell v. United States, 682 F.2d 240, 251 (D.C. Cir.1982); Chrapliwy
v. Uniroyal, Inc., 670 F.2d 760, 768 (7th Cir.1982). While the
fee customarily charged in the locality of the case is important in
determining the appropriate hourly rate, when a party does not find
counsel readily available in that locality with whatever degree of skill
may reasonably be required, it is reasonable that the party go elsewhere
to find an attorney, and the decision maker should allow for the chosen
attorney's billing rate. Hatfield v. Department of the Navy, EEOC Appeal
No. 01892909 (December 12, 1989); see also Chrapliwy, 670 F.2d at 769.
The county concedes that the billing rates of $200/hour for complainant's
lead counsel's law partner and $75.00/hour paralegal work are reasonable
in the Denver, Colorado legal community, but contests the requested rate
of $275/hour sought by lead counsel himself. The county contends that
while $275/hour has been awarded by the United States District Court for
the District of Colorado, the practitioner in that case had unparalleled
civil rights litigation experience, and had supported his fee petition
with evidence that he had in fact been paid that rate by clients.
According to the undisputed evidence in the instant case, complainant's
lead counsel has 26 years of civil rights litigation experience,
and regularly bills his clients at his current hourly rate of $275.
Further, while the county has cited some practitioners in the Denver
area with twenty or more years' experience whose customary billing rate
is $250/hour, complainant has likewise identified practitioners whose
rates are $275 and above. Moreover, although the county's affiant asserts
that complainant's lead counsel has submitted no evidence that $275/hour
is his usual billing rate, in fact his fee petition contains his own
affidavit stating that he typically bills hourly clients at this rate,
and attached is a listing of rates of the firm's attorneys and paralegal
which he asserts is provided to all clients. Moreover, in his reply
brief, complainant's lead counsel has submitted a redacted copy of an
hourly client's itemized bill reflecting a billing rate of $275/hour.
For private attorneys, the best evidence of a reasonable hourly rate is
the hourly rate customarily charged by the attorney or law firm for fee
paying clients. See Cooley v. Department of Veterans Affairs, Request
No. 05960748 (July 30, 1998). Complainant's lead counsel further notes
that he has been awarded fees at $275/hour by Administrative Judges of
this Commission in two recent EEO cases heard pursuant to 29 C.F.R. Part
1614. The county has provided no information to contest these assertions,
and in fact, the county's affiant concedes that the requested hourly
rate is within the range awarded for counsel of similar experience in
the relevant geographic area. Accordingly, we find that in this case,
the county must pay attorney's fees at the hourly rates requested in
the petition.
b. Reductions
The county argues that complainant should be denied fees and costs
outright, or that there should be a substantial reduction in the fees and
costs awarded, to reflect what the county characterizes as complainant's
limited degree of success. Further, assuming fees are awarded, the county
seeks the following specific reductions in complainant's requested fees:
(1) deduction of 1.5 hours at $200/hour for conferences between
complainant's two counsel relating to preparation of a settlement demand
letter, as duplication of effort;
(2) deduction of $1,124 in fees for various conferences among
complainant's counsel and their paralegal;
(3) deduction of 20 hours at $275/hour for hearing preparation time by
complainant's lead counsel;
(4) deduction of 2 hours at $275/hour for time entries which include
references to travel on the day before the hearing and the two days of
the hearing, but do not specify the amount of time devoted to travel;
(5) deduction of 2.5 hours at $275/hour due to duplicate entries for the
same work on the same date, for preparation of complainant's proposed
conclusions of law; and
(6) deduction of 2.9 hours at $275/hour, .5 hours at $200/hour, and
.2 hours at $75/hour, for preparation of a Motion to Strike which the
county contends was unnecessary.
An applicant for attorney's fees is only entitled to an award for
time reasonably expended. It does not always follow that the amount
of time actually expended is the amount of time reasonably expended.
Elfin v. Department of Labor, EEOC Request No. 01943425 (August 31, 1995).
Rather, �billing judgment� is an important component in fee setting, and
hours that would not be properly billed to a private client are also not
properly billed to the agency pursuant to a successful EEO claim. Id.
Counsel for the prevailing party should make a �good faith effort
to exclude from a fee request hours that are excessive, redundant or
otherwise unnecessary.� See Bernard v. Department of Veterans Affairs,
EEOC Request No. 01966861 (July 17, 1998). A reasonable fee award may
be assessed in light of factors such as: (1) the time required (versus
time expended) to complete the legal work; (2) novelty or difficulty
of the issues; (3) the requisite skill to properly handle the case;
(4) the degree to which counsel is precluded from taking other cases;
(5) the relief sought and results obtained; and (6) the nature and length
of the attorney-client relationship. See CERN v. Department of the Army,
EEOC Request No. 05930899 (October 19, 1994). In determining the number
of hours expended, the Commission recognizes that the attorney �is not
required to record in great detail the manner in which each minute of
his time was expended.� Bernard, supra. However, the attorney does
have the burden of identifying the subject matters on which he spent
his time, which can be documented by submitting sufficiently detailed
contemporaneous time records to ensure that the time spent was accurately
recorded. Id.
In his reply brief regarding fees, complainant concedes that 3.2 hours
(.7 hours for attorney conference time and 2.5 hours for preparation
of conclusions of law) requested by lead counsel at $275/hour were
duplicative entries, and therefore $880 should be deducted from his
fee request. With respect to the remainder of the disputed attorney
conference time, we find the reductions sought by the county to be
unwarranted. As asserted by complainant in his reply brief and as
indicated by the time entries, complainant's junior counsel did the
majority of the legal research, drafting, and related work, but in
periodic consultation with lead counsel. This arrangement resulted in
lower overall fees than would have been the case if lead counsel had
performed all of this work himself, inasmuch as his hourly rate is $75
more than that of his junior counsel.
With respect to counsel's hearing preparation time, we find that the
number of hours claimed is neither unreasonable nor excessive. Given
the success achieved by complainant's counsel in a two-day hearing, we
find it reasonable to believe that his hours of pre-hearing preparation
contributed to the result achieved, and were necessary considering the
number of witnesses and documentary exhibits. Therefore, we decline to
reduce the hours claimed for hearing preparation time.
With respect to the county's contention that the amount of time claimed
for travel appears to be excessive and should be reduced by 2 hours, we
note that the relevant entries do not specify how much time counsel spent
"preparing for travel" on June 27, 1999, traveling to the hearing site
on June 28, 1999, and traveling home from the hearing site on June 29,
1999, as opposed to time spent on the other tasks listed for those dates.
In his reply brief, complainant does not clarify this question, but does
clarify that he commuted to the Canon City hearing site from Boulder
rather than Denver, and that his travel time to the hearing site was
therefore at least 2 hours and 45 minutes, rather than 2 hours as the
county assumed. The Commission has long held that attorney travel time
should be compensated at 50 percent of the attorney's usual hourly rate.
Hooper v. Defense Logistics Agency, EEOC Appeal No. 01873384 (May 3,
1988). Accordingly, rather than reduce the number of hours of travel
time to be compensated, we will reduce complainant's requested fees for
travel time from 5.5 hours at $275/hour to 5.5 hours at an hourly rate
of $137.50, thereby reducing the requested fees by $687.50. Similarly,
with respect to counsel's June 27, 1999 entry of 2 hours described as
"prepare for trial, travel, meeting with client," we will similarly
reduce .5 hours, as an estimate of the travel-preparation time, from
$275/hour to $137.50/hour. The total reduction for travel-related time
is therefore $825.
Finally, we are not persuaded by the county's contention that fees for
time spent preparing complainant's motion to strike should be disallowed.
Simply because the motion was denied by the ALJ does not mean that it
was excessive, redundant, or otherwise unnecessary, and the record does
not suggest that it was.
Accordingly, we award complainant attorney's fees for the work
performed prior to appeal in the amount of $61,270, which reflects
the amount requested less deductions of $880 for duplicate entries
conceded in complainant's reply brief and $825 for travel-related time.
We further award the requested $1,912.64 in costs, which the county has
not contested. In addition, we award complainant $9,000 in appellate
attorney's fees and $275 in appellate costs. Therefore, in total,
we award complainant $70,270 in attorney's fees and $2,187.64 in costs.
CONCLUSION
After a careful review of the record, including the parties' respective
contentions on appeal, as well as arguments and evidence not specifically
addressed in this decision, the decision of the ALJ is AFFIRMED with
respect to the finding of liability for retaliation on EEOC complaint
no. 320-97-0529 (complaint #2) and complaint no. 320-97-0677 (complaint
#3), and REVERSED with respect to the denial of non-pecuniary compensatory
damages. Respondent is ORDERED to take remedial action in accordance
with the following Order.
ORDER
Respondent is ORDERED to take the following remedial action:
1. Within ninety (90) calendar days of the date of this decision,
respondent shall remit to complainant compensatory damages as follows:
$24,083.41 in lost earnings, with interest, and $10,000 in non-pecuniary
losses.
2. Within ninety (90) calendar days of the date of this decision,
respondent shall remit to complainant $70,270 in attorney's fees and
$2,187.64 in costs.
3. Respondent shall provide training to all officials responsible
for this matter in their duties and obligations under the Government
Employee Rights Act, in accordance with this decision and the authorities
referenced herein.
4. Respondent shall post at the Fremont County, Colorado courthouse
copies of the attached notice. Copies of the notice, after being signed
by the agency's duly authorized representative, shall be posted by
respondent within thirty (30) calendar days of the date of this decision,
and shall remain posted for sixty (60) consecutive days, in conspicuous
places, including all places where notices to employees are customarily
posted. Respondent shall take reasonable steps to ensure that said
notices are not altered, defaced, or covered by any other material.
5. Respondent shall provide proof of compliance with the corrective
action 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. Respondent's report
must contain supporting documentation, and respondent must send a copy
of all submissions to petitioner.
STATEMENT OF PARTIES' RIGHTS
PARTIES' RIGHT TO FILE A PETITION FOR REVIEW
Any party to a complaint who is aggrieved by a final decision under
29 C.F.R. � 1603.304 may obtain a review of such final decision under
chapter 158 of title 28 of the United States Code by filing a petition for
review with a United States Court of Appeals within 60 days of the date
of this final decision. See 29 C.F.R. � 1603.306. Such petition for
review should be filed in the judicial circuit in which the petitioner
resides, or has its principal office, or in the United States Court of
Appeals for the District of Columbia Circuit.
FOR THE COMMISSION:
______________________________
Frances M. Hart
Executive Officer
Executive Secretariat
June 29, 2001
__________________
Date
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
An Agency of the United States Government
This Notice is posted pursuant to an Order by the United States Equal
Employment Opportunity Commission dated which found
that a violation of � 304 of the Government Employee Rights Act of
1991(GERA), as amended, 2 U.S.C. � 1220, has occurred at the Fremont
County, Colorado Board of County Commissioners.
Federal law requires that there be no discrimination against any
employee or applicant for employment because of the person's RACE,
COLOR, RELIGION, SEX, NATIONAL ORIGIN, AGE, or PHYSICAL or MENTAL
DISABILITY with respect to hiring, firing, promotion, compensation,
or other terms, conditions or privileges of employment.
The Board of County Commissioners supports and will comply with such
federal law and will not take action against individuals because they
have exercised their rights under law.
The Board of County Commissioners was found to have unlawfully retaliated
against the individual affected by the Commission's findings, when the
agency placed him on administrative leave and them failed to select
him for a position, following his filing of a discrimination complaint
with this Commission. The Board of County Commissioners shall therefore
remedy this retaliation by providing this individual with compensatory
damages, and reasonable attorney's fees and costs. The Board of County
Commissioners will also provide training to the responsible officials,
and ensure that officials responsible for personnel decisions and
terms and conditions of employment will abide by the requirements of
all federal equal employment opportunity laws.
The Board of County Commissioners will not in any manner restrain,
interfere, coerce, or retaliate against any individual who exercises his
or her right to oppose practices made unlawful by, or who participates
in proceedings pursuant to, federal equal employment opportunity law.
Date Posted:
Posting Expires:
2 U.S.C. � 1220
1The ALJ construed this offer as evidence that complainant was a good
worker, reasoning that had his work and interpersonal relationships with
other individuals been unsatisfactory, he would not have been offered
these positions. The county contends, however, that Commissioner S
lacked authority to bind the Board of Commissioners, and was no longer
serving on the Board at the time complainant was not selected for the
new contract position.
2Commissioner S denied making this statement, but the ALJ found that
complainant's testimony that the statement was made was more credible
than Commissioner S's denial. All of the Commissioners were present at
the meeting during which the statement was allegedly made.
3Complainant does not contest on appeal the ALJ's denial of his request
for placement in the contract position for which he was not selected,
and further does not contest the ALJ's calculation of the lost earnings.
4Although the ALJ refers to complainant's claim as one for termination,
we note that the ALJ specifically found that the record did not establish
whether or not complainant's position would have been converted to a
contract position notwithstanding his protected activity. In light of this
factual finding, the ALJ's legal conclusion is properly characterized
not as retaliatory termination, but rather retaliatory placement
on administrative leave during the last three weeks of complainant's
employment position, and retaliatory non-selection for the newly-created
contract position. We note that complainant's claim of non-selection for
an independent contractor position is cognizable because he alleges he
was not selected in retaliation for protected activity which arose out
of his previous employment with the county. Cf. Robinson v. Shell Oil
Co., 519 U.S. 337 (1997) (Title VII prohibits retaliation against former
employees as well as current employees, such as providing a negative job
reference to another prospective employer); Berry v. Stevinson Chevrolet,
74 F.3d 980, 986 (10th Cir. 1996) (instigating criminal theft and forgery
charges against former employee who filed EEOC charge found retaliatory);
Passer v. American Chemical Society, 935 F.2d 322, 331 (D.C. Cir. 1991)
(canceling symposium in honor of retired employee who filed ADEA charge
found retaliatory).
5The county contends that Commissioner S's alleged statement to
complainant in the Fall of 1996, to the effect that complainant would
continue to hold the Emergency Management position when it was converted
to a contract position, was not binding on the rest of the Commissioners,
did not reflect their intent or appraisal of complainant's work, and
moreover that S did not participate in the selection process since
he had submitted his own bid for the contract position. However,
since complainant's performance is an issue in this case, we find that
the statement is probative to the extent it is relevant evidence in
determining at least one Commissioner's assessment of complainant's work
shortly before he filed his first EEOC complaint.
6The record establishes that newly-elected Commissioner J, while not sworn
in until January 1997, nevertheless prior to that time participated in
the decision not to interview complainant for the contract position, and
did so with knowledge of complainant's October 4, 1996 EEOC complaint,
which he testified was discussed at meetings he had with the other
Commissioners from the time of his November, 1996 election onward.