0720080019
06-04-2010
Judith A. Johnson, Complainant, v. Timothy F. Geithner, Secretary, Department of the Treasury, (Internal Revenue Service), Agency.
Judith A. Johnson,
Complainant,
v.
Timothy F. Geithner,
Secretary,
Department of the Treasury,
(Internal Revenue Service),
Agency.
Appeal No. 0720080019
Hearing No. 430-2006-00140X
Agency No. 05-2528
DECISION
In conjunction with the issuance of its November 21, 2007 final
order, the agency filed a timely appeal requesting that the Commission
affirm its rejection of an EEOC Administrative Judge's (AJ) finding of
discrimination in violation of Section 501 of the Rehabilitation Act
of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq. and
the Age Discrimination in Employment Act of 1967 (ADEA), as amended,
29 U.S.C. � 621 et seq. The agency also requests that the Commission
affirm its rejection of the relief ordered by the AJ.
BACKGROUND
At the time of events giving rise to this complaint, complainant
worked as a Revenue Agent at the agency's Small Business/Self Employed
Collection Division in North Carolina. Previously complainant had
worked at the agency's Shelby, North Carolina location. When the Shelby
office closed in 1994, instead of moving complainant to the Charlotte,
North Carolina office, the agency permitted complainant to work from her
home and reimbursed her for mileage when she traveled to Charlotte or
other duty locations. The Group Manager in Charlotte was complainant's
first-level supervisor (S1) from August 2004 to September 30, 2005.
The agency defined complainant's EEO complaint dated August 5, 2005,
which was subsequently amended, as alleging that she was discriminated
against on the bases of disability (anxiety, depression, and stress)
and age (58) when:
1. Beginning in August 2004, complainant has been subjected to constant
work reviews;
2. On June 20, 2005, complainant was issued an inaccurate mid-year
review;
3. On June 20, 2005, complainant was requested to report to the Charlotte
post of duty (POD) on June 21, 2005, and would no longer be reimbursed
for mileage to commute to the Charlotte POD;
4. Complainant was denied travel expenses to attend Continuing
Professional Education (CPE) the week of August 8-12, 2005;
5. On June 20, 2005, complainant was issued a letter removing her from
Flexiplace, Alternate Work Schedule (AWS), and consultation programs;
6. On July 25, 2005, complainant was requested to provide leave slips for
leave she would be taking between August and the end of September 2005;
and
7. On August 24, 2005, complainant was issued a 60-day Opportunity to
Improve Letter (OIL).
The agency issued an acceptance letter on October 10, 2005, accepting
complainant's complaint in its entirety for processing. An investigation
on complainant's complaint began in December 2005. Thereafter, on
February 6, 2006, the agency dismissed issues 1, 2, 3, and 5 pursuant
to 29 C.F.R. � 1614.107(a)(4), for involving the same issues previously
asserted in a negotiated grievance procedure that permits allegations
of discrimination to be raised. The agency noted that the remaining
issues 4, 6, and 7 would continue to be processed.
On April 5, 2006, complainant was provided with a copy of the report of
investigation on issues 1-7 and notice of her right to request a hearing
before an AJ. Complainant timely requested a hearing and the AJ held a
hearing on November 14, 2006. The AJ issued a decision on September 30,
2007. The agency subsequently issued a final order rejecting the AJ's
finding that complainant proved that she was subjected to discrimination
as alleged.
In his decision, the AJ noted that issues 1, 2, 3, and 5 were addressed
in a union grievance. The AJ noted that although these issues have
been dismissed, the facts surrounding those issues were considered as
background evidence in the AJ's decision. Moreover, the AJ noted that
the basis of reprisal was added during the hearing.
The AJ noted that complainant submitted a request for reasonable
accommodation on June 21, 2005, to remain on her same working schedule of
7:00 a.m. to 5:45 p.m. four days per week (with Fridays off) and having
her POD in Shelby instead of Charlotte, North Carolina. The AJ determined
there was no evidence that the agency did anything with the request.
The AJ found the agency's lack of action constituted a violation of the
Rehabilitation Act. Additionally, the AJ found complainant prevailed
on her disparate treatment claim and her claim that she was subjected
to a hostile work environment based on age, disability, and reprisal.
The AJ found complainant was entitled to payment of $626.00 of unpaid
mileage, $320.00 for individual psychotherapy, $2,138.00 for "other
medicals," restoration of 100 hours of sick leave and 80 hours of annual
leave, compensatory damages in the amount of $50,000.00, and attorney's
fees and costs in the amount of $8,950.00.
The agency subsequently issued a final order rejecting the AJ's finding
that complainant proved that she was subjected to discrimination
as alleged. In conjunction with the issuance of its final action,
the agency filed an appeal with the Commission.
The agency filed a brief in support of its appeal dated December 11,
2007.1 On appeal, the agency argues that the AJ improperly considered
evidence surrounding issues 1, 2, 3, and 5 and improperly rendered a
decision on these issues. The agency claims that these issues were
properly dismissed by the agency due to the filing of a union grievance
on the same matters prior to the filing of complainant's EEO complaint.
The agency also argues that the AJ improperly rendered a decision on
issue 7 since the OIL is a preliminary step to taking a personnel action.
The agency states that the OIL is a notice informing an employee that
she has an opportunity to improve her performance or face termination.
The agency argues that since the OIL is a preliminary step to taking a
personnel action, it is not subject to the Commission's review.
Additionally the agency claims the AJ erred by applying the incorrect
burden of proof on the issue of perceived disability. The agency claims
the AJ did not require complainant to show that management perceived her
as substantially limited from performing a wide range of jobs of similar
character and not just a particular position. The agency argues it was
error for the AJ to conclude that management perceived complainant as
disabled based solely on the fact that complainant's supervisor granted
her sick leave requests, for leave which she had already accrued.
The agency also argues the AJ used the improper analysis relating to
complainant's perceived disability and her request for a reasonable
accommodation. Specifically, the agency notes that it is not obligated
to consider an accommodation for an employee who is not disabled, but
who is perceived to be disabled.
Moreover, the agency claims the AJ erred by finding retaliation without
identifying which management actions were retaliatory and without
articulating what protected activity by complainant formed the basis for
the alleged retaliation. The agency concedes it is possible that the AJ
viewed complainant's June 21, 2005 request for reasonable accommodation as
prior EEO activity sufficient to form the basis of a retaliation claim.
However, the agency states that to establish a prima facie case of
retaliation, complainant must prove the alleged discriminating official
was aware of the alleged protected activity. The agency states that
complainant's first-level supervisor and second-level supervisor both
testified that they had not seen or heard of any request for reasonable
accommodation from complainant. The agency notes complainant produces
no evidence to challenge these assertions. The agency notes that during
the hearing, complainant admitted that she did not recall to whom she
had submitted her reasonable accommodation request and states she was not
aware of whether S1 was aware of or had received a copy of her request.
Thus, the agency argues that complainant failed to make out a prima
facie case of retaliation.
The agency also notes that the AJ's decision stated that on August 24,
2005, S1 was aware complainant had filed an EEO case. The agency notes
the AJ cites only to complainant's own uncorroborated allegations in
her affidavit to support this claim. The AJ states that even assuming
arguendo that S1 was aware on August 24, 2005, that complainant had filed
the present EEO complaint, only one action complained of by complainant
occurred on or subsequent to this date - the August 24, 2005 OIL. Thus,
the agency states that the OIL is the only issue that could possibly be
considered retaliatory and argues complainant failed to present sufficient
evidence that S1 had knowledge of the present EEO complaint on the date
in question.
Additionally, the agency claims the AJ's award of $50,000.00 in
non-pecuniary, compensatory damages should be reduced. The agency notes
that it does not challenge the AJ's determinations on pecuniary damages.
With regard to non-pecuniary damages, the agency cites cases involving
claims of hostile work environment ranging from $3,500.00 to $10,000.00.
The agency notes that although medical testimony is not required at the
hearing, the absence of medical testimony here raises severe doubt about
the justification of such a large reward. The agency also states the
medical documentation provided by complainant speaks only in general
terms of her condition and includes only brief, conclusory statements
about the causes of her condition.
The agency claims that in his decision, the AJ found no discrimination
with regard to issue 6 (request to provide leave slips), stating that
"this is not an unreasonable request and is within the discretion of
management." The agency states this leaves only two issues, issue 4 and
issue 7, upon which the AJ could have properly found discrimination.
Furthermore, the agency argues that while the AJ noted that compensatory
damages are not recoverable on age discrimination cases under the ADEA,
the high award of non-pecuniary, compensatory damages undermines this
assertion. The agency argues the two acts at issue, the denial of full
travel expenses to attend a one-week long training class and the issuance
of an OIL, cannot reasonably be viewed as having caused complainant to
suffer such emotional distress that she is entitled to $50,000.00 in
compensatory damages.
Finally, the agency argues that the AJ erred in awarding complainant
attorney's fees in the full amount requested. The agency notes that one
of the two bases of discrimination alleged by complainant in this case
was age discrimination. The agency states that attorney's fees are not
recoverable under the ADEA. The agency notes that the AJ nonetheless
awarded complainant's attorney the entire amount requested in his
petition for fees. The agency requests the attorney's fees be reduced
by an appropriate amount given that attorney's fees are not recoverable
for age discrimination cases.
In addition, the agency argues that complainant should not have recovered
any fees related to the retaliation claim since it was never alleged or
raised by counsel or complainant at any time prior to the AJ's indication
at the hearing that he was considering retaliation as a possible basis
for discrimination. The agency argues that given the late and unexpected
appearance of the issue, it is highly unlikely that opposing counsel
expended any time preparing the retaliation claim for hearing.
Moreover, the agency claims that complainant's attorney has not carried
his burden of proof with respect to the reasonableness of his asserted
hourly rate and the number of hours he worked on the case. The agency
notes that complainant's attorney only submitted his own affidavit in
support of his fee petition and did not offer further evidence that his
rate was reasonable.
On January 7, 2008, complainant's attorney filed a request for an
extension of time to respond to file a statement or brief in opposition to
the agency's appeal. The Commission granted complainant an extension of
time until January 25, 2008, to submit a brief or statement in opposition
to the agency's appeal.
On January 25, 2008, complainant filed a statement in opposition to
agency's appeal requesting the Commission affirm the AJ's decision.
Complainant argues there is no justifiable legal basis upon which to
disturb the AJ's finding of discrimination and retaliation. With respect
to the AJ's findings as to compensatory damages, complainant states
the AJ's decision is too low to properly address the harm suffered.
Complainant cited to Commission decisions awarding between $80,000.00 and
$100,000.00 in non-pecuniary, compensatory damages. Complainant stated
that the damages awarded in this case should not be less than $100,000.00
ANALYSIS AND FINDINGS
Pursuant to 29 C.F.R. � 1614.405(a), all post-hearing factual findings by
an AJ will be upheld if supported by substantial evidence in the record.
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). A finding regarding whether or not discriminatory
intent existed is a factual finding. See Pullman-Standard Co. v. Swint,
456 U.S. 273, 293 (1982). An AJ's conclusions of law are subject to a
de novo standard of review, whether or not a hearing was held.
An AJ's credibility determination based on the demeanor of a witness or
on the tone of voice of a witness will be accepted unless documents or
other objective evidence so contradicts the testimony or the testimony so
lacks in credibility that a reasonable fact finder would not credit it.
See EEOC Management Directive 110, Chapter 9, � VI.B. (November 9, 1999).
At the outset, we note that issues 1, 2, 3, and 5 were dismissed by the
agency on February 6, 2006, pursuant to 29 C.F.R. � 1614.107(a)(4), for
raising the same matter previously asserted in a negotiated grievance
procedure that allows allegations of discrimination. The record
reveals the agency notified the AJ of its dismissal of these issues
prior to the start of the hearing. Although the AJ allowed testimony
surrounding issues 1, 2, 3, and 5, the AJ specified that such testimony
and evidence would be used as background to the accepted issues 4, 6,
and 7. We note there is no indication that complainant objected to the
agency's dismissal of issues 1, 2, 3, and 5 and we find that these issues
were properly dismissed pursuant to 29 C.F.R. � 1614.107(a)(4).
Next, we will address the agency's contention that issue 7 (Opportunity to
Improve Letter) should be dismissed as a preliminary step toward a later
personnel action. The regulation set forth at 29 C.F.R. � 1614.107(a)(5)
provides for the dismissal of a complaint that "alleges that a proposal to
take a personnel action, or other preliminary step to taking a personnel
action, is discriminatory." The Commission has stated, however, that a
complaint may not be dismissed under this section when the complainant
alleges, as in the present case, that the preliminary step was taken
for the purpose of harassing the individual for prohibited reasons.
In such a case, the agency's action has already affected the employee.
Rodriguez-Soto v. Department of Army, EEOC Request No. 05960646 (October
8, 1998). Thus, we find dismissal of issue 7 is not appropriate.
To establish a claim of harassment based on disability, age, or reprisal,
complainant must show that: (1) she is a member of the statutorily
protected class; (2) she was subjected to harassment in the form of
unwelcome verbal or physical conduct involving the protected class;
(3) the harassment complained of was based on the statutorily protected
class; and (4) the harassment affected a term or condition of employment
and/or had the purpose or effect of unreasonably interfering with
the work environment and/or creating an intimidating, hostile, or
offensive work environment. Humphrey v. United States Postal Service,
EEOC Appeal No. 01965238 (October 16, 1998); 29 C.F.R. � 1604.11. The
harasser's conduct should be evaluated from the objective viewpoint of
a reasonable person in the victim's circumstances. Enforcement Guidance
on Harris v. Forklift Systems. Inc., EEOC Notice No. 915.002 (March 8,
1994). Further, the incidents must have been "sufficiently severe and
pervasive to alter the conditions of complainant's employment and create
an abusive working environment." Harris v. Forklift Systems, Inc., 510
U.S. 17, 21 (1993); see also Oncale v. Sundowner Offshore Services, Inc.,
23 U.S. 75 (1998). In the case of harassment by a supervisor, complainant
must also show that there is a basis for imputing liability to the
employer. See Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982).
Upon review, we find the AJ's finding of retaliatory harassment is
supported by substantial evidence. The record reveals that on June 20,
2005, complainant contacted an EEO Counselor to initiate the subject
complaint. The record reveals that the EEO Counselor contacted S1 on
July 13, 2005, via electronic mail to schedule an interview regarding
complainant's complaint. According to the EEO Counselor's report, the
EEO Counselor interviewed S1 on July 14, 2005, regarding complainant's
allegations. Thus, we find that complainant's initiation of EEO Counselor
contact on June 20, 2005, constituted protected EEO activity. Moreover,
we note that S1 was aware of this protected EEO activity by July 14,
2005, at the latest. Thus, we find complainant has established she was
a member of the statutorily protected class.
A review of the hearing transcript reveals that from the onset of S1's
arrival, complainant was subjected to close scrutiny by S1. The AJ
noted that complainant testified that beginning in August 2004, she was
subjected to multiple and constant work reviews by S1; on June 20, 2005,
after returning from two months of sick leave, complainant was issued a
poor mid-year progress review by S1; and on June 20, 2005, she received
a letter removing her from Flexiplace, AWS, and consultation programs.
While we do not address whether these issues were based on complainant's
protected status, we do reference these issues as background to the
remaining issues in the complaint.
Following complainant's initiation of EEO Counselor contact, complainant
was requested to provide leave slips for leave she would be taking between
August and the end of September 2005, denied travel expenses to attend
CPE, and issued an OIL. We find the temporal proximity (11 days) between
S1's learning of complainant's EEO contact and the request to provide
leave slips for leave to be taken in August and September 2005, to be
evidence of a nexus between complainant's protected EEO activity and the
agency's requests for the leave slips. While the agency asserted that
the request for the leave slips was due to conflicting leave requests,
the AJ concluded that it was instead in anticipation of giving complainant
a 60-day OIL.
Finding that the denial of travel expenses to attend CPE and the
OIL were also part of the retaliation suffered by complainant, the
AJ noted that the OIL was given in an effort to force complainant to
consider retirement. With regard to the OIL, the AJ noted that the
agency claimed that the OIL was issued as a result of complainant
having performance problems. The AJ found that S1 was not credible.
Specifically, the AJ noted that S1 testified that she did not know that
she was disliked by older revenue officers in the office. However,
the AJ noted that S2 testified that S1 resigned her position because she
was unhappy and dreaded going to work. The AJ noted that when confronted
with this question of dislike by the employees she supervised for giving
negative reviews and demeaning treatment, the AJ noted S1 became upset
and began crying and testified that "[t]hings needed fixed.(sic) There
were problems. I was trying to help. That's all I can say: I was trying
to help." Moreover, the AJ also noted that the denial of travel expenses
to attend CPE resulted in complainant traveling approximately 3.5 to 4
hours a day for five days, round trip. The AJ noted complainant received
payment for her mileage from her Charlotte POD, instead of her Shelby
POD; which resulted in substantially less reimbursement for mileage.
The AJ concluded that the events cited were sufficient to constitute a
hostile work environment.
After reviewing the instant record and considering arguments on appeal,
we find that the AJ made reasonable credibility determinations, which
are not contradicted by objective evidence, and his factual findings
are supported by substantial evidence. Therefore, the Commission affirms
the AJ's finding of retaliatory harassment. Based on our finding that
complainant was subjected to retaliatory harassment, we decline to address
the additional bases of discrimination raised in complainant's complaint.
Compensatory Damages
Section 102(a) of the 1991 Civil Rights Act 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. See West v. Gibson, 527
U.S. 212 (1999). In this regard, the Commission has authority to award
such damages in the administrative process. Compensatory damages do not
include back pay, interest on back pay, or any other type of equitable
relief authorized by Title VII. To receive an award of compensatory
damages, complainant must demonstrate that he or 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), 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, EEOC Notice No. 915.002 at 11-12, 14 (July 14, 1992) ("Guidance").
Initially, we note that neither party challenges the AJ's award of $626.00
of unpaid mileage, $320.00 for individual psychotherapy, $2,138.00 for
other medicals, or restoration of 100 hours of sick leave, and 80 hours
of annual leave. Thus, we affirm those determinations herein
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. A complainant's
testimony may be solely sufficient to establish emotional harm. EEOC
Guidance: Compensatory and Punitive Damages Available Under Section 102 of
the Civil Rights Act of 1991, EEOC Notice N-915.002 (July 14, 1992) at 6.
Statements from others, including family members, friends, and health
care providers could address the outward manifestations of the impact
of the discrimination on the complainant. Id. The complainant could
also submit documentation of medical or psychiatric treatment related
to the effects of the discrimination. Id. Non-pecuniary damages must
be limited to the sums necessary to compensate the injured party for
the actual harm and should take into account the severity of the harm
and the length of time the injured party has suffered from the harm.
Carpenter v. Department of Agriculture, EEOC Appeal No. 01945652 (July
17, 1995).
Complainant and her husband testified that complainant experienced
depression and difficulty sleeping as a result of the agency's actions.
Complainant's husband testified that complainant had been outgoing prior
to the incidents found to be discriminatory and that subsequently she had
decreased interaction with neighbors and friends. Complainant's husband
also stated that complainant was withdrawn from him and was tearful.
Complainant testified that she had difficulty concentrating at work as
a result of the agency's action. Complainant also testified that she
"aged five or six years" from the incidents, sought medical assistance,
and took Lexapro (an anti-depressant) as a result of the agency's actions.
We note that complainant and her husband also testified that complainant
was tired from traveling back and forth to Charlotte after June 20,
2005, and that she suffered emotional distress when she was requested
to report to the Charlotte post of duty (POD) and when she was given the
mid-year review. However, we note these issues were properly dismissed
by the agency and we recognize the agency was not found liable for
discrimination surrounding these incidents.
Based on the record, the medical evidence and prior Commission precedent,
we find the AJ's decision to award $50,000.00 for emotional distress was
not supported by substantial evidence. We find $25,000.00 an appropriate
amount for emotional distress. Specifically, we find this amount is not
motivated by passion or prejudice, is not "monstrously excessive" standing
alone, and is consistent with the amounts awarded in similar cases.
See Holmes v. United States Postal Service, EEOC Appeal No. 0720090025
(April 27, 2010) ($25,000.00 in non-pecuniary damages where complainant
was subjected to retaliatory harassment and stayed at home for several
days following the discrimination, saw a psychotherapist who stated that
she experienced several symptoms of Post Traumatic Stress Disorder,
cried frequently, was lethargic, no longer did work around the house,
and lost her easy-going attitude); Silcox v. Department of Veterans
Affairs, EEOC Appeal No. 01A46160 (September 29, 2005), request for
recons. den., EEOC Request No. 05A60378 (February 6, 2006)($25,000.00
in non-pecuniary damages for retaliation where complainant experienced
stress related diarrhea, chest pains, loss of hair, trouble sleeping,
lines in her forehead, loss of appetite, lack of energy, and felt her
job was threatened); Johnson v. United States Postal Serv., EEOC Appeal
No. 07A30112 (April 15, 2004), request for recons. den., EEOC Request
No. 05A40800 (June 8, 2004) ($22,000.00 in non-pecuniary damages for
retaliation where complainant showed that he experienced extreme anxiety,
sleeplessness, restlessness, irritability, and agitation as well as
noting other contributing factors).
Attorney's fees
The Commission, an agency, or an AJ may award complainant reasonable
attorney's fees and other costs incurred in the processing of a
complaint regarding allegations of discrimination in violation of the
Rehabilitation Act. 29 C.F.R. � 1614.501(e). To establish entitlement
to attorney's fees, complainant must first show that he or she is a
prevailing party. See Buckhannon Bd. and Care Home Inc. v. West Virginia
Dept. of Health and Human Resources, 532 U.S. 598 (2001). A prevailing
party for this purpose is one who succeeds on any significant issue, and
achieves some of the benefit sought in bringing the action. See Davis
v. Dep't of Transportation, EEOC Request No. 05970101 (February 4, 1999)
(citing Hensley v. Eckerhart, 461 U.S. 427, 433 (1983)). A finding
of discrimination raises a presumption of entitlement to an award of
attorney's fees. 29 C.F.R. � 1614.501(e)(i).
Attorney's fees shall be paid for services performed by an attorney
after filing of a written complaint. Id. An award of attorney's fees
is determined by calculating the loadstar, i.e., by multiplying a
reasonable hourly fee times a reasonable number of hours expended.
Hensley, at 433; 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 a verified
statement required by the Commission's regulations at 29 C.F.R. �
1614.501(e)(2)(i).
Attorney's fees may not be recovered for work on unsuccessful claims.
Hensley, at 434. Courts have held that fee applicants should exclude
time expended on "truly fractionable" claims or issues on which they
did not prevail. See Nat'l Ass'n of Concerned Veterans v. Secretary
of Defense, 675 F.2d 1319, 1327 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 435. 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).
After a careful review of the record and consideration of the above
criteria, we find that the AJ's fee award is appropriate. Complainant
submitted a sworn declaration in support of her claim of $8,950.00
in attorney's fees and costs. Although complainant did not submit a
sworn declaration from an attorney in complainant's geographic area,
we find the agency did not show that the $250.00 hourly rate charged
by complainant's attorney was unreasonable given her attorney's
qualifications and experience. We note that complainant's attorney
billed for 35.8 hours of work for services rendered from August 4, 2006,
through November 27, 2006. The record reveals complainant's attorney
billed for work done during discovery through the date of the hearing
on damages, including 9.3 hours on November 14, 2006, for the hearing
and post-hearing discussions with complainant and 3.5 hours on November
27, 2006, for the hearing on damages and for follow up on damages.
While the agency is correct that no attorney's fees are recoverable for
age discrimination cases, we note the AJ took note of this fact in his
decision. Moreover, we determine the age claim and the issues dismissed
by the agency involved a common set of facts and were intertwined with
complainant's successful claim of retaliatory harassment.
We next address the agency's contention that complainant should not
recover attorney's fees related to the retaliation claim since it
was never raised by counsel or complainant at any time prior to the
AJ's indication at the hearing that he was considering retaliation as a
possible basis for discrimination. We find that the attorney's competent
representation of complainant and development of the evidence contributed
to the AJ's sua sponte raising of retaliation as a basis mid-way through
the hearing. Moreover, we find substantial evidence of record supports
the AJ's conclusions in awarding $8,950.00 in attorney's fees and costs.
CONCLUSION
We REVERSE the agency's final decision and direct the agency to take the
remedial actions in accordance with this decision and the Order herein.
ORDER
To the extent it has not already done so, the agency shall take the
following actions:
1. Within 30 days of the date this decision becomes final, the agency
shall pay complainant $626.00 of unpaid mileage.
2. Within 30 days of the date this decision becomes final, the agency
shall pay complainant $320.00 for individual psychotherapy.
3. Within 30 days of the date this decision becomes final, the agency
shall pay complainant $2,138.00 for other medicals.
4. Within 30 days of the date this decision becomes final, the agency
shall restore 100 hours of sick leave and 80 hours of annual leave.
5. Within 30 days of the date this decision becomes final, the agency
shall pay complainant non-pecuniary, compensatory damages of $25,000.00.
6. Within 30 days of the date this decision becomes final, the agency
shall pay complainant $8,950.00 in attorney's fees and costs.
7. Within 180 days of the date this decision becomes final, the agency
shall provide eight hours of training to S1 regarding her obligation not
to retaliate for protected EEO activity. If S1 is no longer an employee
of the federal government, the agency shall furnish documentation S1's
departure date.
8. Within 180 days of the date this decision becomes final, the agency
shall consider taking appropriate disciplinary action against S1.
The agency shall report its decision to the Compliance Officer,
referenced herein. If the agency decides to take disciplinary action
it shall identify the action taken. If the agency decides not to take
disciplinary action, it shall set forth the reason(s) for its decision
not to impose discipline. If S1 has left the agency's employment,
then the agency shall furnish documentation of S1's departure date.
The agency is further directed to submit a report of compliance, as
provided in the statement entitled "Implementation of the Commission's
Decision."
POSTING ORDER (G0900)
The agency is ordered to post at its Charlotte, North Carolina facility
copies of the attached notice. Copies of the notice, after being
signed by the agency's duly authorized representative, shall be posted
by the agency within thirty (30) calendar days of the date this decision
becomes final, and shall remain posted for sixty (60) consecutive days,
in conspicuous places, including all places where notices to employees are
customarily posted. The agency shall take reasonable steps to ensure that
said notices are not altered, defaced, or covered by any other material.
The original signed notice is to be submitted to the Compliance Officer
at the address cited in the paragraph entitled "Implementation of the
Commission's Decision," within ten (10) calendar days of the expiration
of the posting period.
ATTORNEY'S FEES (H0900)
If complainant has been represented by an attorney (as defined by
29 C.F.R. � 1614.501(e)(1)(iii)), he/she is entitled to an award of
reasonable attorney's fees incurred in the processing of the complaint.
29 C.F.R. � 1614.501(e). The award of attorney's fees shall be paid
by the agency. The attorney shall submit a verified statement of fees
to the agency -- not to the Equal Employment Opportunity Commission,
Office of Federal Operations -- within thirty (30) calendar days of this
decision becoming final. The agency shall then process the claim for
attorney's fees in accordance with 29 C.F.R. � 1614.501.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K1208)
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 77960, Washington,
DC 20013. 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 (M1208)
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 77960,
Washington, DC 20013. 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 (R0408)
This is a decision requiring the agency to continue its administrative
processing of your complaint. However, if you wish to file a civil
action, you have the right to file such action in an appropriate United
States District Court within ninety (90) calendar days from the date
that you receive this decision. In the alternative, you may file a
civil action after one hundred and eighty (180) calendar days of the date
you filed your complaint with the agency, or filed your appeal with the
Commission. If you file a civil action, you must name as the defendant
in the complaint the person who is the official agency head or department
head, identifying that person by his or her full name and official title.
Failure to do so may result in the dismissal of your case in court.
"Agency" or "department" means the national organization, and not the
local office, facility or department in which you work. Filing a civil
action will terminate the administrative processing of your complaint.
RIGHT TO REQUEST COUNSEL (Z1008)
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 from the Court that
the Court appoint an attorney to represent you and that the Court also
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 with
the Court 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
June 4, 2010
__________________
Date
1 Although the agency's brief is dated December 11, 2007, we note the
certificate of service and postmark date of the brief are both December
7, 2007.
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U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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