01A24738
12-12-2003
Jeanette Norte, Complainant, v. Spencer Abraham, Secretary, Department of Energy, Agency.
Jeanette Norte v. Department of Energy
01A24738
December 12, 2003
.
Jeanette Norte,
Complainant,
v.
Spencer Abraham,
Secretary,
Department of Energy,
Agency.
Appeal No. 01A24738
Agency Nos. 95113AL; 95124AL
DECISION
Complainant timely initiated an appeal from a final agency decision
(FAD2) concerning her complaint of unlawful employment discrimination
in violation of Title VII of the Civil Rights Act of 1964 (Title VII),
as amended, 42 U.S.C. � 2000e et seq. The appeal is accepted pursuant
to 29 C.F.R. � 1614.405. For the following reasons, the Commission
modifies the agency's final decision.
The record reveals that on May 22, 1995, complainant filed a formal
complaint alleging that: (1) she was discriminated against on the basis
of sex (female) when she was reassigned to the Management Services Team,
Environmental Restoration Division. On June 8, 1995, complainant filed
a second complaint alleging that (2) she was subjected to reprisal for
her prior EEO activity (filing the first complaint), when the Human
Resources Division initiated action to change her classification series.
The agency issued a final decision (FAD1) on September 2, 1997, finding
no discrimination as to either issue. Complainant then appealed to
the Commission, and in Norte v. Department of Energy, EEOC Appeal
No. 01980080 (August 31, 2001), we affirmed FAD1 as to issue (1), but
reversed as to issue (2), finding retaliation. We ordered the agency
to issue another final decision addressing compensatory damages, and
attorney's fees and costs. The agency requested reconsideration of
FAD1, which the Commission denied in Norte v. Department of Energy,
EEOC Request No. 05A20031 (April 2, 2001). Complainant subsequently
submitted to the agency a �Statement of Compensatory Damages, Attorney
Fees and Costs,� which the agency received on May 28, 2002.
The agency issued a final decision (FAD2) on the issues of compensatory
damages, attorney's fees and costs, pursuant to the Commission's order.
FAD2 found that complainant was not entitled to compensatory damages,
but was entitled to attorney's fees and costs in the amount of $21,579.20.
FAD2 also addressed complainant's claim in her �Statement of Compensatory
Damages, Attorney Fees and Costs,� that she was entitled to back pay,
front pay, lost retirement benefits. Noting that the Commission made no
reference in its order to back pay, front pay, lost retirement benefits,
FAD2 concluded that complainant was not entitled to such remedies.
It is from FAD2 that complainant now appeals.
On appeal, complainant, through her attorney, contends that she is
entitled to the following: (a) $337,053.00 in back pay, front pay and
lost retirement benefits; (b) $41,842.16 in attorney fees and costs,
plus additional fees in the amount of $1,652.69 (per complainant's
Exhibit AA); $3,033.00 in lost interest on legal fees; $300,000.00 in
non-pecuniary damages; and, the expunction of complainant's personnel
records relating to the demotion-in-series of complainant. In connection
with her request for compensatory damages, complainant contends that the
agency failed to follow the Commission's order to conduct a supplemental
investigation into the question of compensatory damages. In its objection
to complainant's appeal, the agency requests that we affirm FAD2.
Initially, we note that back pay, front pay, lost retirement benefits
and the expunction of personnel records, constitute equitable relief.
As the Commission declined to make these remedial awards in Norte
v. Department of Energy, EEOC Appeal No. 01980080 (August 31, 2001),
and in Norte v. Department of Energy, EEOC Request No. 05A20031 (April
2, 2002), we decline to review these matters further at this stage.
The remainder of this decision will be limited to the matters properly
before the Commission, which are compensatory damages and attorney's
fees and costs accrued prior to April 2, 2002, in connection with the
successful prosecution of the underlying claim.
Compensatory Damages
The Commission finds that the agency failed in its obligation to conduct
a proper supplemental investigation into the question of compensatory
damages. The Commission further finds that the record contains adequate
information upon which to make a finding as to compensatory damages.
See Exhibits, H and I.
In West v. Gibson, 119 S.Ct. 1906 (1999), the Supreme Court held that
Congress afforded the Commission the authority to award compensatory
damages in the administrative process. Section 102(a) of the Civil
Rights Act of 1991 (the CRA 1991), codified as 42 U.S.C. � 1981a,
authorizes an award of compensatory damages as part of the "make whole"
relief for intentional discrimination in violation of Title VII of the
Civil Rights Act of 1964, as amended. Section 1981a(b)(2) indicates
that compensatory damages do not include back pay, interest on back
pay, or any other type of equitable relief authorized by Title VII.
Section 1981a(b)(3) limits the total amount of compensatory damages
that may be awarded to each complaining party for future pecuniary
losses, emotional pain, suffering, inconvenience, mental anguish, loss
of enjoyment of life, and other non-pecuniary losses, according to the
number of persons employed by the respondent employer. The limit for
an employer with more than 500 employees, such as the agency herein,
is $300,000.00. 42 U.S.C. � 1981a(b)(3)(D).
If a complainant alleges that she is entitled to compensatory damages
and the agency or Commission enters a finding of discrimination, the
complainant is given an opportunity to submit evidence establishing
her claim. To receive an award of compensatory damages, a complainant
must demonstrate that she has been harmed as a result of the agency's
discriminatory action; the extent, nature, and severity of the harm; and
the duration or expected duration of the harm. Rivera v. Department
of the Navy, EEOC Appeal No. 01934157 (July 22, 1994) req. for
recons. den. EEOC Request No. 05940927 (December 11, 1995); Compensatory
and Punitive Damages Available Under Section 102 of the Civil Rights
Act of 1991, EEOC Notice No. 915.002 (July 14, 1992), at 11-12, 14.
Compensatory damages may be awarded for the past pecuniary losses,
future pecuniary losses, and non-pecuniary losses which are directly or
proximately caused by the agency's discriminatory conduct. Compensatory
and Punitive Damages Available Under Section 102 of the Civil Rights Act
of 1991, EEOC Notice No. 915.002 (July 14, 1992), at 8. Pecuniary losses
are out-of-pocket expenses that are incurred as a result of the employer's
unlawful action, including job-hunting expenses, moving expenses,
medical expenses, psychiatric expenses, physical therapy expenses, and
other quantifiable out-of-pocket expenses. Id. Past pecuniary losses
are the pecuniary losses that are incurred prior to the resolution of
a complaint via a finding of discrimination, an offer of full relief,
or a voluntary settlement. Id. at 8-9.<1>
A compensatory damages award should fully compensate a complainant for
the harm caused by the agency's discriminatory action even if the harm
is intangible. Id. at 13. Thus, a compensatory damages award should
reimburse a complainant for proven pecuniary losses, future pecuniary
losses, and non-pecuniary losses. A complainant has a duty to mitigate
his or her pecuniary damages. Id. at 9. If a respondent can prove that
a complainant failed to mitigate pecuniary damages, the award should
be reduced to reflect all losses that could have been avoided by the
exercise of reasonable diligence. Id. at 9-10.
Non-Pecuniary Damages
To receive an award of compensatory damages, a complainant must
demonstrate that she has been harmed as a result of the agency's
discriminatory action. Rivera v. Department of the Navy, EEOC Appeal
No. 01934157 (July 22, 1994) req. for recons. den. EEOC Request
No. 05940927 (December 11, 1995); Compensatory and Punitive Damages
Available Under Section 102 of the Civil Rights Act of 1991, EEOC Notice
No. 915.002 (July 14, 1992), at 11-12, 14. Further, and also previously
noted, compensatory damages may be awarded for the past pecuniary losses,
future pecuniary losses, and non-pecuniary losses which are directly or
proximately caused by the agency's discriminatory conduct. Compensatory
and Punitive Damages Available Under Section 102 of the Civil Rights Act
of 1991, EEOC Notice No. 915.002 (July 14, 1992), at 8. Thus, once the
issue of a nexus between the discriminatory act and the harm sustained
has been established, the agency is responsible for the harm suffered.
We point out that non-pecuniary compensatory damages are designed to
remedy a harm and not to punish the agency for its discriminatory actions.
See Memphis Community School Dist. v. Stachura, 477 U.S. 299, 311-12
(1986) (stating that compensatory damages determination must be based
on the actual harm sustained and not the facts of the underlying case).
The Commission notes that for a proper award of non-pecuniary damages,
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 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 her affidavit, complainant asserts that she �felt humiliated, demeaned
and degraded . . . . Going to work every day became an act of shame.�
Complainant also contends that she had overwhelming feelings of dread,
foreboding, anxiety, sadness, sorrow, grief, loss, helplessness and
hopelessness. Complainant states that even at home, on the weekend,
and on vacation, she thought about the agency's action constantly.
She states that she had �lost control of [her] identity, [her] career
and [her] future.� Additionally, complainant asserts that she would
often become immobilized in her office chair, biting her fingernails.
Complainant contends that her physician prescribed medication for her
which helped the nail-biting, but did not help her emotional distress.
Complainant states that her depression and anxiety eased somewhat when
she received the Commission's decision in September, 2001, finding that
she had been subjected to retaliation. However, she states that her
distress returned when she saw that the agency was not following through
and compensating her properly. Complainant's husband also described
the emotional distress that he saw his wife endure, and asserts that
his wife's emotional distress had a detrimental effect on their family
and on their marriage.
After analyzing the evidence which establishes the harm sustained
by complainant, with note of the serious nature and duration of her
suffering, and upon consideration of damage awards reached in comparable
cases, the Commission finds that complainant is entitled to an award
of non-pecuniary damages in the amount of $15,000.00. See Yue Lee
Wan v. United States Postal Service, EEOC Appeal No. 01974494 (May 24,
2000) (award of $15,000.00 where employee suffered emotional distress,
depression, inability to sleep, and a negative effect on her marriage,
due to discrimination); Batieste v. Department of the Air Force, EEOC
Appeal No. 01974614 (award of $12,000.00 where, due to discriminatory
termination, employee suffered from emotional distress). We find
this case analogous to the afore-referenced cases with respect to the
nature, severity and duration of the harm. We note that this award is
not motivated by passion or prejudice, is not "monstrously excessive"
standing alone, and is consistent with the amounts awarded in similar
cases. See Cygnar, 865 F.2d at 848.
Attorney's Fees
The 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. 29 C.F.R. � 1614.501(e).
A finding of discrimination raises a presumption of entitlement to an
award of attorney's fees. Id. Attorney's fees shall be paid for services
performed by an attorney after the filing of a written complaint. Id.
An award of attorney's fees is determined by calculating the lodestar,
i.e., by multiplying a reasonable hourly fee times a reasonable number of
hours expended. Hensley v. Eckerhart, 461 U.S. 424 (1983); 29 C.F.R. �
1614.501(e)(2)(ii)(B). �There is a strong presumption that this amount
represents the reasonable fee.� 29 C.F.R. � 1614.501(e)(2)(ii)(B).
A reasonable hourly fee is the prevailing market rate in the relevant
community. Blum v. Stenson, 465 U.S. 886 (1984). A petition for fees
and costs must take the form of the verified statement required by the
Commission's regulations at 29 C.F.R. � 1614.501(e)(2)(i).
Complainant was represented by two attorneys during the relevant period.
Complainant requests $1,846.94 plus interest for the services of
Attorney 1. Complainant requests $27,936.05 plus interest, for fees
and costs accrued by Attorney 2, in the period ending May 24, 2002.
Included in complainant's claim is reimbursement for the services of an
expert economist (E1). Because, at the present time, we are limited to
consideration of the attorney's fees and costs accrued only in connection
with the successful prosecution of the underlying claim, we decline to
reach the question of whether complainant is entitled to reimbursement for
the services of E1. Additionally, our award of attorney's fees and costs
is limited to that which was accrued before April 2, 2002, the date when
the Commission issued the decision on the request for reconsideration.
However, complainant may petition for reimbursement for attorney's fees
and costs accrued after April 2, 2002 and in connection with the instant
appeal as provided below in our order on �Attorney's Fees.�
Reduction of Fees for Failure to Prevail on Both Claims
FAD2 concluded that because complainant prevailed on only one of
two issues, the amount of fees to be reimbursed should be reduced by
50%.<2> We find that under the circumstances of this case a reduction
is appropriate. The fact that complainant did not prevail on every
aspect of her complaints does not, in itself, justify a reduction in
the hours reasonably expended where the claims are intertwined, and
it would be impossible to segregate the hours involved in each claim.
It is true that attorney's fees may not be recovered for work on
unsuccessful claims. Hensley, 461 U.S. at 433. Courts have held that
fee applicants should exclude time expended on "truly fractionable"
claims or issues on which they did not prevail. See National Association
of Concerned Veterans (NACV) v. Secretary of Defense, 675 F.2d 1319,
1337 n.13 (D.C. Cir. 1982). Claims are fractionable or unrelated when
they involve "distinctly different claims for relief that are based on
different facts and legal theories." Hensley, 461 U.S. at 434-35. Thus,
in cases where claims are distinctly different, "work on an unsuccessful
claim cannot be deemed to have been expended in pursuit of the ultimate
result achieved." Id. at 435 (citation omitted). However, in cases
where a claim for relief involves "a common core of facts or will be
based on related legal theories" a fee award should not be reduced simply
because the plaintiff failed to prevail on every contention raised in
the lawsuit. Id. "The hours spent on unsuccessful claims should be
excluded in considering the amount of a reasonable fee only where the
unsuccessful claims are distinct in all respects from the successful
claims." See EEO MD-110, Ch. 11, Sect. 6 (A)(7) (citation omitted).
Here, we find that the unsuccessful claims are fractionable. Complainant
brought her second claim of retaliation based on her belief that she was
subjected to reprisal for bringing the original sex discrimination in
reassignment claim. However, these are two different claims for relief
that are based on different facts and legal theories. We find that the
claim on which complainant did not prevail is �distinct in all respects�
from the claim on which she was successful. We conclude that the fact
that complainant was unsuccessful on one claim will preclude her from
receiving full reimbursement of her fees and costs. Accordingly, we
award $14,470.02 for attorney's fees and costs accrued prior to April 2,
2002, in connection with the successful prosecution of the underlying
retaliation claim.<3>
Accordingly, we MODIFY FAD2, pursuant to the Order below.
ORDER (C0900)
The agency is ordered, to the extent that it has not already done so,
to take the following remedial action:
Restore classification of complainant's position to the Physical Science
1301 series along with duties and responsibilities associated with the
series that may have been extracted as a result of the discriminatory
reclassification.
Pay complainant non-pecuniary compensatory damages in the amount of
$15,000.00;
Pay attorney's fees and costs in the amount of $14,470.02, plus interest.
The agency is further directed to submit a report of compliance, as
provided in the statement entitled �Implementation of the Commission's
Decision.� The report shall include supporting documentation verifying
that the corrective action has been implemented.
ATTORNEY'S FEES (H0900)
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 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 (S0900)
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. 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 (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 Act of 1964, as amended, 42 U.S.C. � 2000e et seq.;
the Rehabilitation Act of 1973, as amended, 29 U.S.C. �� 791, 794(c).
The grant or denial of the request is within the sole discretion of
the Court. Filing a request for an attorney 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
December 12, 2003
__________________
Date
1 Complainant makes no specific request for compensatory damages for
past pecuniary losses or future pecuniary losses.
2 FAD2 awarded 100% of all costs requested by complainant.
3 Because in complainant's petition for attorney's fees and costs, no
distinction was made between costs (expenses) accrued before/after April
2, 2002, we have awarded all costs requested for the period ending May
24, 2002.