01a50189
07-13-2005
Joan C. Anthony, Complainant, v. Gale A. Norton, Secretary, Department of the Interior, Agency.
Joan C. Anthony v. Department of the Interior
01A50189
July 13, 2005
.
Joan C. Anthony,
Complainant,
v.
Gale A. Norton,
Secretary,
Department of the Interior,
Agency.
Appeal No. 01A50189
Agency No. OS-00-014
DECISION
The complainant timely initiated an appeal to the Equal Employment
Opportunity Commission (EEOC or Commission) from the final agency decision
(FAD) 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.
BACKGROUND
The complainant was employed as a Program Manager and Attorney Advisor,
GS-14 at the agency's Department of Interior Board of Land Appeals (IBLA),
Office of Hearings and Appeals (OHA) in Arlington, Virginia facility.
In Anthony v. Department of the Interior, EEOC Appeal No. 01A20111
(March 10, 2004) the Commission found that the complainant was retaliated
against in violation of Title VII when from August 1998 into 2000, she
was subjected to a hostile work environment which included shunning,
threats of disciplinary action, frequent derogatory remarks, and being
assigned no cases for about two months to meet her production quota.
The reprisal was found to be against EEO activity by the complainant
opposing what she perceived to be race and sex discrimination, and the
agency's non-compliance with the Commission's EEO regulations and mandate.
The decision in EEOC Appeal No. 01A20111 ordered in relevant part that the
agency (1) pay attorney fees, (2) conduct a supplemental investigation
on the complainant's entitlement to compensatory damages and issue a
final decision thereon, and (3) offer to reassign the complainant as
specified in the order.
Thereafter, the agency conducted a supplemental investigation on
compensatory damages and processed the complainant's requests for
attorney fees and costs. The agency then issued a FAD awarding $5,000
in nonpecuniary damages, and awarding attorney fees. Thereafter, the
agency issued a supplemental FAD awarding additional attorney fees for
later representational work which was not addressed in the first FAD.
On appeal, the complainant argues that the agency did not comply with
the portion of the order in EEOC Appeal No. 01A20111 which directed
that the agency offer to reassign her. In response, the agency argues
it complied. As the record is adequately developed on this compliance
matter and the parties have made arguments regarding it, we will rule
on the reassignment matter in this decision. 29 C.F.R. � 1614.503.
ISSUES PRESENTED
Whether the agency properly calculated (1) the complainant's entitlement
to compensatory damages, (2) the complainant's entitlement to attorney
fees and costs, and (3) whether the agency must offer the complainant
a reassignment?
ANALYSIS AND FINDINGS
Compensatory Damages
A review of the record in EEOC Appeal No. 01A20111 reveals that the
complainant stated the hostility against her was extremely worrisome
and upsetting. Following the order in EEOC Appeal No. 01A20111, the
agency mailed a letter to the complainant dated April 5, 2004 requesting
evidence of entitlement to compensatory damages. The letter stated
evidence can include medical documentation; and statements from family
members, co-workers and others familiar with her emotional condition.
It provided detailed information on how to demonstrate damages for
physical and emotional conditions related to the discrimination.
Counsel 1 for the complainant responded on May 7, 2004 with argument, but
no statements or documentation of compensatory damages. He wrote that
supporting materials would follow within the time allotted by the Order
in this matter, a reference to the order in EEOC Appeal No. 01A20111 (it
directed the agency to give the complainant 60 days to submit evidence
of her compensatory damages claim). On June 29, 2004 the agency sent a
reminder to Counsel 2, who works in the same law firm as Counsel 1 and
also represents the complainant. The reminder noted the 60 day period
cited in the order, stated the complainant had submitted no evidence of
compensatory damages, and provided a week to do so.
The complainant did not submit evidence in response to the reminder.
According to the FAD, Counsel 1 called the agency's Office of Civil
Rights and stated he would submit documentation within a reasonable
amount of time and asked for a meeting to resolve the complaint. The FAD
represented that the parties engaged in two unsuccessful settlement
meetings, the last one being August 16, 2004. The complainant does not
contest these representations. On August 31, 2004, based on the record,
the agency issued a FAD awarding $5,000 in nonpecuniary damages.
On appeal the complainant argues that the agency did not effectively
investigate her compensatory damages claim. We disagree. The agency
sent a letter to the complainant and her counsel asking her to provide
evidence of compensatory damages and explaining how to do so, and then
sent a reminder. For the first time and on appeal the complainant on
November 5, 2004 submitted the requested evidence of compensatory damages.
It consists of a statement by the complainant which is a little more
than three pages. The complainant makes no argument regarding why
she waited after the 60 day time limit in the EEOC Appeal No. 01A20111
order and after the FAD was issued to submit her supplemental evidence
on compensatory damages, and we find none. Because the FAD properly
relied on the record in determining compensatory damages, we will not at
this point consider the complainant's untimely statement she submitted
on appeal regarding compensatory damages.
Compensatory damages may be awarded for past pecuniary losses, future
pecuniary losses, and nonpecuniary losses that 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. N 915.002 (July 14, 1992), at 8. This guidance is on the
Commission's website at www.eeoc.gov. Nonpecuniary losses are losses
that are not subject to precise quantification including emotional pain
and loss of health. Id. at 10.
Given the limited information in the record of emotional harm, i.e.,
the finding that hostile work environment occurred over an approximately
two year period and the complainant's statement that she found the
hostile work environment to be extremely worrisome and upsetting, we
find that the FAD's award of $5,000 in nonpecuniary compensatory damages
was correct by a preponderance of the evidence. See Vitale v. Social
Security Administration, EEOC Appeal No. 01A4440 (February 7, 2005)
(failure to provide reasonable accommodation which resulted in not being
selected for a position. The complainant stated that she suffered from
severe emotional distress, humiliation, hurt feelings, anxiety and mental
suffering. Five-thousand dollars in nonpecuniary damages were awarded).
The complainant failed to show that she was entitled to more than $5,000
in compensatory damages, as claimed.
Reassignment
EEOC Appeal No. 01A20111 ordered that no later than 30 calendar days
after the date the decision became final, the agency shall offer the
complainant a reassignment that is acceptable to her to either another
judge, reassignment out of the office of OHA to an office in the District
of Columbia area or an acceptable GS-14 attorney position. The decision
became final on or about April 14, 2004. The agency did not offer the
complainant a reassignment. Instead, the agency claimed it was already in
compliance. It explained that in response to the complainant volunteering
for a detail, she was detailed on October 1, 2001 from the IBLA to the
Office of Director. The agency further explained that effective January
12, 2003, the complainant moved to a GS-15 position in the Department
of Defense, a promotion. Hence, the complainant no longer worked for
the agency when the order in EEOC Appeal No. 01A20111 was issued.
Based on this information, an EEOC Compliance Officer on September 27,
2004 issued a letter to the parties finding, in relevant part, that the
agency was in compliance with the reassignment portion of the order.
The complainant argues that the agency violated the order in EEOC Appeal
No. 01A20111 by not offering her a reassignment. On appeal, regarding
reassignment, Counsel 1 affirmed that he told the EEOC Compliance Officer
that the complainant should not be compelled to reduce her grade from
GS-15 to GS-14 to remedy past discrimination.
While the agency did not reassign the complainant, as ordered, we find
that intervening events obviated the obligation to do so. First, the
order was premised on the complainant still working in OHA, where she in
fact no longer worked. More legally significant, however, is that the
complainant no longer worked for the agency when the order was issued,
and hence the agency could not reassign her.
The decision in EEOC Appeal No. 01A2111 did not find that the
complainant was constructively discharged or separated.<1> The record
now shows that the complainant worked in an agency office outside
where the discrimination occurred for more than a year prior to taking a
promotion outside the agency. Further, requiring the agency to offer the
complainant a GS-15 position would be a promotion, not a reassignment,
and would go beyond what was required by the order in EEOC Appeal
No. 01A20111.
Given the change in circumstances, we find that the agency is no longer
required to offer the complainant a reassignment.
Attorney Fees and Costs
The August 31, 2004 FAD awarded all attorney fees requested by Counsels
1 and 2 from starting to work on the case on April 16, 2004 (at the
remedies stage) through May 6, 2004, when Counsel 1 submitted argument in
support of compensatory damages. The supplemental FAD dated December
15, 2004 awarded all the additional attorney fees requested by Counsels
1 and 2 for their work from August 1, 2004 through August 31, 2004.<2>
The supplemental FAD did not address the request for attorney fees
by Counsels 1 and 2 for work done in relation to the instant appeal.
We will address those fees later in this decision.
Counsel 3 started representing the complainant during the investigative
process October 1, 2000, and continued to do so through April 16,
2004, soon after the decision in EEOC Appeal No. 01A20111 was issued.
He requested fees for 109.6 hours of work at an hourly rate of $300,
for a total of $32,880 and costs of $72.32. The FAD awarded the fees
at the requested hourly rate of $300. On a time entry to time entry
basis, the FAD disallowed 43.6 hours. Further, the complainant alleged
discrimination based on age, sex, and reprisal, and prevailed only on
reprisal. Reasoning that the complainant only prevailed on reprisal,
the FAD reduced the remaining compensable hours by 66%. The FAD awarded
a total of $9,710 in attorney fees to Counsel 3, and disallowed all costs.
We will first discuss the FAD's disallowance of time entries. The FAD
disallowed 24.8 hours of work for being related to reviewing an Office
of Inspector General (OIG) report, efforts to obtain the source documents
underlying it, which included pursuing a Freedom of Information Act (FOIA)
request, and reviewing the source documents. The OIG report was issued
on October 13, 2000, and included a review of the work environment in OHA.
As argued by the complainant, this work was similar to discovery, i.e.,
obtaining material which could reasonably potentially support her hostile
work environment claim. Accordingly, the disallowance of the 24.8 hours
is reversed. As the $72.32 in costs was also related to this activity,
the FAD's disallowance of them is reversed.
Some of the FAD's disallowance for work related to FOIA, inspector
general, and so forth was proper. A disallowed February 10, 2001 entry
of 1.9 hours was for counseling the complainant on her response to a FOIA
request by others seeking her memos to the OIG. This was unrelated to
proving the hostile work environment claim. The FAD disallowed 5.1 of
5.7 hours for entries on July 11, 24 and 25 2003 which were related
to getting the status on the impending merits final agency decision
and hurrying its receipt. Much of this work involved preparing the
complainant to meet the OIG, and we find only 1.6 hours was reasonable.
Finally, an entry on March 20, 2004 for .9 hours to contact another
forum was properly disallowed. The above entries total 8.5 hours,
the FAD disallowed 8. We award only 1 of the disallowed hours.
The FAD disallowed 4.0 hours of a 4.3 hour entry covering October 1 and
2, 2001. As much of this involved an amended claim which was dismissed
and never accepted, we find that a disallowance of 3.3 hours was proper,
and award .7 of the disallowed hours.
Finally, the FAD disallowed entries from April 20, 2003 through April 30,
2003 totaling 6.8 hours on the grounds that they duplicated the legal
services billed by Counsel 1, were unproductive, and lacked detail.
These entries regarded transferring the complainant's case to Counsel 1,
which included discussing the case with him. We disagree that this work
was unproductive and that the entries lacked detail. At this point,
the complainant had prevailed on her hostile work environment claim, and
Counsel 1 was retained to pursue remedies. The transfer was necessary
to avoid a potential conflict of interest, i.e., Counsel 3, who is
the complainant's spouse, could be called upon to provide a statement
regarding whether and how the complainant was emotionally harmed by
the discrimination. Given this, we decline to disallow these entries
on the grounds that duplicate work was involved, and award all the 6.8
hours disallowed hours.
Accordingly, of the 43.6 hours disallowed by the FAD, we award 33.3 of
these hours and affirm the disallowance of 10.3 hours.
As previously stated, reasoning that the complainant had claims of age,
sex and reprisal discrimination, and only prevailed on the latter claim,
the FAD reduced the remaining compensable hours by 66%.<3> The fact
that the complainant did not prevail on every aspect of her complaint
does not, in itself, justify a reduction in the hours 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 v. Eckerhart, 461
U.S. 424, 433 (1983). 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. The complainant prevailed
on her hostile work environment claim based on reprisal, which had the
same common core of facts as the hostile work environment claim based
on sex and age. Accordingly, the FAD's 66% reduction is reversed.
With no other deductions, this would result in a fee award of $29,790.
However, there was some work on claims that the complainant did not
prevail that can be segregated, i.e., the portion of the hostile work
environment claim prior to August 1998, before she engaged in Title VII
EEO activity. A close review of the file in EEOC Appeal No. 01A20111,
which includes a number of submissions by Counsel 3, reveals that Counsel
3 likely spent no more than one hour on these claims.
Accordingly, the complainant is entitled to attorney fees for Counsel
3 for 98.3 hours of work at an hourly rate of $300, a total of $29,490,
and costs of $72.32.
Counsel 1 requested additional attorney fees for work done in preparation
of the instant appeal. Counsel 1 bills at an hourly rate of $200, and
the supplemental FAD upheld this hourly rate. As it did not address
the fees requested for from September 9, 2004 through November 5,
2004, we will do so here. For this period, Counsel 1 requested fees
for 19.5 hours, for a total of $3,900. Much of this work was related
to requesting compensatory damages beyond that ordered in the FAD and
arguments related to the complainant being offered a reassignment.
Because the complainant did not prevail on these matters, no fees for
them are warranted. However, the complainant is entitled to fees for
Counsel 1's work related to obtaining additional fees for Counsel 3,
which were obtained, Counsel 1's time for creating the fee petition,
and Counsel 1's work related to communication problems with the agency.
Based on a review of the fee petition and the record, we find that
Counsel 1 is entitled to 4.5 of the 19.5 hours requested for work in
relation to the appeal, for a total of $900.<4>
CONCLUSION
Based upon a review of the record, and for the forgoing reasons, we AFFIRM
the FAD's award of a total of $5,000 in compensatory damages. We find
that the agency does not have to offer the complainant a reassignment.
We modify the FAD's award of attorney fees and costs to Counsel 3,
and award additional attorney fees for work done by Counsel 1 on appeal.
ORDER
To the extent it has not already done so, the agency shall pay:
(1) Compensatory damages to the complainant in the amount of $5,000.
(2) Attorney fees for Counsels 1 and 2 work (who work in the same law
firm) in the amount of $5,190.<5>
(3) Attorney fees and costs for Counsel 3's work in the amount of
$29,562.32.
The agency shall complete the above actions within 60 calendar days
after this decision becomes final. The agency shall send a copy of
the compliance report, referenced below, to the complainant and her
representative.
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 (T0900)
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 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 (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
July 13, 2005
__________________
Date
1According to the FAD, the complainant has not filed a subsequent
complaint regarding any condition or benefit of employment.
The complainant does not contest this.
2The fee petitions by Counsels 1 and 2 did not include any requested
fees for the period of May 7, 2004 through July 31, 2004.
3Even if the complainant prevailed on her Age Discrimination in Employment
Act (ADEA) claim, there is no entitlement to attorney's fees and costs
in connection with an ADEA claim. See 29 C.F.R. � 1614.501(e).
4Subsequent to the second fee petition, Counsel 1 submitted an original
version of the photocopy he previously sent of the complainant's statement
regarding compensatory damages. The complainant is not entitled to
attorney fees for this.
5The FAD dated August 31, 2004 awarded Counsels 1 and 2 attorney fees
of $3,120. The supplemental FAD dated December 15, 2004 awarded them
additional attorney fees of $1,170. The instant decision awarded Counsel
1 additional attorney fees of $900.