01974494
05-24-2000
Judy Mooney, Complainant, v. Daniel R. Glickman, Secretary, Department of Agriculture, Agency.
Judy Mooney v. Department of Agriculture
01974494
May 24, 2000
Judy Mooney, )
Complainant, )
) Appeal No. 01974494
v. ) Agency No. 950508
)
Daniel R. Glickman, )
Secretary, )
Department of Agriculture, )
Agency. )
)
DECISION
Complainant timely initiated an appeal from the agency's final decision
(FAD) concerning its award of compensatory damages and attorney's fees,
issued in accordance with a settlement agreement entered into by the
parties on April 7, 1995.<1> The settlement agreement resolved claims
involving alleged violations of Title VII of the Civil Rights Act of
1964, 42 U.S.C. � 2000 et. seq. The appeal is accepted pursuant to 64
Fed. Reg. 37,644, 37,659 (1999)(to be codified at 29 C.F.R. � 1614.405).
ISSUES PRESENTED
The issues on appeal are whether complainant established that (1) she
is entitled to compensatory damages beyond the $4,950.00 awarded by
the agency and (2) she is entitled to an award of attorney's fees in
connection with her claim for compensatory damages.
BACKGROUND
On December 12, 1994, complainant initiated informal EEO counseling
alleging a pattern of disparate treatment by her supervisor based on
her sex. The Counselor's Report indicates that complainant decided
to contact an EEO Counselor after she was told by her supervisor on
November 25, 1994 that an investigation had been ordered into whether
complainant had created a hostile work environment for some of her
subordinate employees. Complainant felt that her male supervisor
treated her differently than the male staff directors and others who
worked for him, as evidenced by the November 25, 1994 incident, as
well as other behavior dating back to April 1994. Complainant noted
that her supervisor checked with complainant's subordinate staff before
determining her performance evaluations in April and November 1994, a
step he never took with male staff. Complainant also alleged that her
supervisor avoided her, excluded her from certain meetings, and did not
give her informational briefings or encourage her to call him at home,
as he did for others who reported to him.
On April 7, 1995, complainant and the agency entered into a settlement
agreement to resolve these claims.<2> Complainant undertook not to
prosecute a formal complaint of discrimination and to retire from federal
service effective April 16, 1995. In return, the agency promised to
pay complainant "the sum of $113,110.00 as general damages based upon
two years front salary." The agency also agreed, among other things,
to pay proven compensatory damages and to pay "reasonable attorneys' fees
in an amount not to exceed $1,000.00 incurred by the Complainant up to
the date of execution of this Agreement." In addition, the agency agreed
that complainant was not precluded from seeking recovery of reasonable
attorney's fees in connection with any claim for compensatory damages.
On May 5, 1995, complainant filed a claim for compensatory damages
and attorney's fees incurred in making the compensatory damages
claim. Complainant requested $423,188.77 in compensatory damages
($196,968.77 in pecuniary damages and $226,220.00 in non-pecuniary
damages) and $5,382.83 in attorney's fees and costs. The agency issued
a FAD finding that complainant was entitled to a compensatory damages
award of $4,950.00, but no attorney's fees.
The agency first determined that complainant's pecuniary damages
claim included a claim for future pecuniary damages in the amount of
$196,088.00 based on the present value of her lost future earnings
and retirement income. The agency denied this claim, noting that a
complainant who decides to retire upon receiving an award of front pay
is not entitled to future pecuniary damages unless there is evidence
suggesting that her injuries have narrowed the range of economic
opportunities available to her. Finding that complainant agreed to
retire as part of the settlement agreement, the FAD concluded that any
diminution in future earnings and retirement income she suffered was
a result of her decision to accept discontinued service retirement.
For the same reason, the agency denied complainant's claim of $465.00
incurred in obtaining financial forecasting of the amount of the present
value of her loss of future earnings and retirement income.<3>
Complainant also submitted a claim for $415.77 for copying charges of
medical records and claim materials, along with mileage for medical
health treatment and attorney consultations and telephone charges.
The agency granted complainant $50.00 for reimbursement of her travel
costs associated with visits to her medical and mental health care givers,
finding that complainant had sought treatment as a result of the alleged
discriminatory acts. The agency concluded that no other reimbursement
was deserved because the other costs were either related to the EEO
process and not the result of the alleged discriminatory activity,
or otherwise not proven to be related to the alleged discrimination.
The agency denied complainant's claim for $226,220.00 in non-pecuniary
damages, finding instead that $4,900.00 was an appropriate award.
The agency concluded that complainant's allegations related to the
period of time between November 25, 1994, when her supervisor told her
that an investigation had been ordered into whether complainant created
a hostile work environment, and April 14, 1995, when her mental health
therapy ended. The agency determined that during this time complainant
had suffered emotional distress due to the alleged discriminatory acts and
that she deserved some compensation. The agency referred to a leading
Commission decision involving compensatory damages and a federal court
case and broke down the awards granted in those cases into per day
figures of $22 per day and $27 per day. See Rountree v. Department
of Agriculture, EEOC Appeal No. 01941906 (July 7, 1995) and McClann
v. City of Norfolk Police Department, 877 F. Supp. 277 (D.Kan. 1994).
Finding that complainant's situation could be viewed as "slightly more
severe in comparison," the agency determined that $35 per day was just
and, counting the days between November 25, 1994 and April 14, 1995,
awarded complainant $4,900.00 in non-pecuniary damages.
In the same FAD, the agency denied complainant's claim for $4,382.83 in
attorney's fees and expenses. The agency determined that the settlement
agreement provided for a payment of reasonable attorney's fees not to
exceed $1000.00 incurred by complainant up to the date of the execution
of the agreement. The agency therefore denied complainant's claim,
finding that requested fees and costs were incurred after the execution
of the agreement. The agency also noted that a compensatory damages
award could not contain an award for attorney's fees and that 29 C.F.R. �
1614.501(e)(iv) only permitted an agency to award attorney's fees for
services performed after the filing a written complaint, an action that
complainant never took. The FAD thus concluded that the agency was
without authority to award attorney's fees.
CONTENTIONS ON APPEAL
Complainant raises numerous contentions on appeal. In essence, she argues
that the agency misinterpreted the settlement agreement, erroneously
characterized her claims for non-pecuniary losses and erroneously denied
her claims for pecuniary losses stemming from participation in the EEO
process and her attorney's fees claim.
The agency offers no response to these contentions and raises no new
arguments on appeal. The agency asks that its FAD be affirmed.
ANALYSIS AND FINDINGS
Compensatory Damages
The April 1995 settlement agreement requires the agency to pay proven
compensatory damages. EEOC Regulation 64 Fed. Reg. 37,644, 37,660 (to
be codified and hereinafter referred to as 29 C.F.R. � 1614.504(a))
provides that any settlement agreement knowingly and voluntarily
agreed to by the parties shall be binding on both parties. Moreover,
Commission precedent establishes that a complainant is entitled to
proven compensatory damages for allegations of discrimination if they
are provided for in a settlement agreement. See Browne v. Department of
Agriculture, EEOC Appeal No. 01944256 (July 17, 1995). Pursuant to section
102(a) of the Civil Rights Act of 1991, a complainant may receive, in
addition to equitable remedies, compensatory damages for past and future
pecuniary losses (i.e., out-of-pocket expenses) and non-pecuniary losses
(e.g., pain and suffering, mental anguish). 42 U.S.C. �1981a(b)(3).
For an employer with more than 500 employees, such as the agency,
the limit of liability for future pecuniary and non-pecuniary damages
is $300,000. Id. The Supreme Court has recently confirmed that the
Commission possesses the legal authority to require federal agencies to
pay compensatory damages. See West v. Gibson, 527 U.S. 212 (1999).
The particulars of what relief may be awarded, and the proof necessary to
obtain that relief, are set forth in detail in Compensatory and Punitive
Damages Available Under Section 102 of the Civil Rights Act of 1991,
EEOC Notice No. N-915.002 (July 14, 1992) (Compensatory Damages Notice).
Briefly stated, the complainant must submit evidence to show that the
agency's discriminatory conduct directly or proximately caused the losses
for which damages are sought. See Damiano v. United States Postal
Service, EEOC Request No. 05980311 (February 26, 1999). The amount
awarded should reflect the extent to which the agency's discriminatory
action directly or proximately caused harm to complainant and the extent
to which other factors may have played a part. See Compensatory Damages
Notice at 11-12. The amount of non-pecuniary damages should also reflect
the nature and severity of the harm to complainant, and the duration or
expected duration of the harm. Id. at 14. A complainant is required
to provide evidence that will allow an agency to assess the merits
of complainant's request for emotional distress damages. See Carle
v. Department of the Navy, EEOC Appeal No. 01922369 (January 5, 1993).
Pecuniary Damages
Complainant first requested $196,088.00 for the present value of her loss
of future earnings and retirement income. We agree with the agency that
this is an attempt to obtain front pay and note that front pay cannot
be awarded as future pecuniary losses. See Compensatory Damages Notice,
at 6, 9. Moreover, complainant is only entitled to compensatory damages
for harm that stems from her allegations of discrimination. See Browne
v. Department of Agriculture, EEOC Appeal No. 01944256 (July 17, 1995).
Here, complainant alleged disparate treatment at the hands of her
supervisor, culminating in an investigation into whether she created
a hostile work environment for subordinate employees. Complainant did
not assert in her underlying claim<4> that the discriminatory treatment
caused her to retire. Rather, her retirement was a provision of the
settlement agreement.
Complainant argues that the language of the settlement agreement
implicitly acknowledges that the subsequent claim for compensatory
damages would address the tangible and intangible harm caused by the
premature retirement. She refers to the memorialization of the agreement
in principle reached on March 31, 1995 and notes that it states that
complainant was releasing her "legal claims arising in the terms and
conditions and from her separation." Commission precedent holds, however,
that settlement agreements are contracts between the complainant and the
agency and it is the intent of the parties as expressed in the contract,
and not some unexpressed intention, that controls the contract's
construction. See Eggleston v. Department of Veterans Affairs, EEOC
Request No. 05900795 (August 23, 1990). In ascertaining the intent of
the parties with regard to the terms of the settlement agreement, the
Commission has generally relied on the plain meaning rule. See Hyon
v. United States Postal Service, EEOC Request No. 05910787 (December
2, 1991). This rule states that if the writing appears to be plain and
unambiguous on its face, its meaning must be determined from the four
corners of the instrument without resort to extrinsic evidence of any
nature. See Montgomery Elevator v. Building Eng'g Serv., 730 F.2d 377
(5th Cir. 1984).
In the case at hand, the settlement agreement states that complainant
will not prosecute a formal complaint of discrimination and will
retire from federal service effective April 16, 1995. In the next
paragraph it states that the agency will pay proven compensatory damages.
As noted above, Commission precedent is clear that complainants may be
entitled to compensatory damages for allegations of discrimination when
discrimination is proven, discrimination is admitted, or compensatory
damages are provided for in a settlement agreement. See Browne, supra;
see also Leperi v. Department of Agriculture, EEOC Appeal No. 01964107
(April 2, 1998) (citing Browne and noting that complainant is not entitled
to compensatory damages which are not part of the underlying complaint
in a case involving a settlement agreement). Absent language in the
settlement agreement that the agency was to pay proven compensatory
damages for complainant's premature retirement, we cannot find that
complainant is owed the $196,088.00 which she requested.
Complainant claimed past pecuniary damages in the amount of $415.77 for
various expenditures, including travel, phone, and copying costs.
Turning first to travel costs, we agree with the agency that complainant
is entitled to travel costs for visits to her medical and mental health
care givers because she established that she sought treatment due to the
alleged discrimination. Complainant has provided evidence supporting
an award of $50.00 for these costs.
Complainant also sought reimbursement of travel costs for visits to
her attorney between March 30 and May 5, 1995. We find, however, that
these costs are more properly considered attorney's fees and costs and
will therefore analyze them in the attorney's fees and costs portion of
this decision.
Complainant requested $136.76 for telephone charges during January,
February, and March 1995. The agency denied this request, noting
that the calls were placed by complainant to witnesses and her
EEO counselor and were thus associated with the EEO process and not
compensable. Complainant's request for $47.49 for copying medical records
was also denied for this reason. In support of this argument, the agency
cited Commission precedent holding that emotional distress flowing
from the EEO process is not compensable. See Androvich v. Department
of Agriculture, EEOC Appeal No. 01950531 (July 12, 1996) and Cotton
v. Department of the Army, EEOC Appeal No. 01932096 (April 21, 1994).
We note, however, that the agency mistakenly relied on this precedent,
in that it applies to claims for non-pecuniary compensatory damages.
Complainant's claims for these phone and copying charges, though
characterized by complainant as claims for compensatory damages, are
more appropriately characterized as claims for reimbursement of costs.
These claims will therefore be analyzed in the attorney's fees and costs
portion of this decision.
We thus award complainant a total of $50.00 for pecuniary damages (as
awarded by the agency).
Non-pecuniary damages
There are no definitive rules governing the amount of non-pecuniary
damages to be awarded. Non-pecuniary damages must be limited, however,
to the sums necessary to compensate the injured party for actual harm
directly or proximately caused by the alleged discriminatory conduct,
even where the harm is intangible. The existence, nature, and severity
of emotional harm must be proved. See Compensatory Damages Notice at 11.
Emotional harm may manifest itself, for example, as sleepiness, anxiety,
stress, depression, marital strain, humiliation, emotional distress,
loss of self-esteem, excessive fatigue, or a nervous breakdown. Id.
A proper award should take into account the severity of the harm and the
length of time that the injured party suffered the harm. See Carpenter
v. Department of Agriculture, EEOC Appeal No. 01945652 (July 17, 1995).
Finally, the amount of the award should not be "monstrously excessive"
standing alone, should not be the product of passion or prejudice,
and should be consistent with the amount awarded in similar cases. See
Jackson v. United States Postal Service, EEOC Appeal No. 01972555
(April 15, 1999), citing Cyanar v. City of Chicago, 865 F. 2d 827, 848
(7th Cir. 1989).
In the case at hand, complainant provided sworn testimony in regard
to how the alleged discriminatory actions of her supervisor affected
her. Complainant spoke of her emotional distress, constant crying,
embarrassment, anger, and depression. She noted that while she was once
a very organized person, she began to let plants die and forgot to pay
bills. She stated that she sought medical help because she was depressed,
unable to concentrate, anxious and despairing. She also mentioned feeling
isolated and hopeless. Complainant's testimony was confirmed by that of
her spouse, who testified to her changed behavior beginning in mid-May
1994 when complainant became worried about her supervisor's behavior
towards her. He noted that while they once had a marriage filled with
humor and laughter, work-related issues began to dominate, leading to
a bad Christmas in 1994. Complainant's spouse noted that for months
there was no laughter in their house and no recreational activities,
whereas he and complainant once enjoyed things such as camping. He also
noted that he and complainant stopped having sex and that complainant
was emotionally out of control and frightened.
Also confirming the serious effects the alleged discrimination had on
complainant are statements from two co-workers. A female co-worker
who worked with complainant since 1977 stated that she first noticed
a change in complainant when complainant noted in Spring 1994 that
she was concerned about her relationship with her supervisor. The
co-worker felt this to be an odd because complainant never had work
relationship problems. When complainant's supervisor told her she was
under formal investigation in November 1994, the changes became drastic.
While complainant had always been extremely dependable at work and "the
calm in the storm," she became extremely stressed, tearful and despairing.
This co-worker also stated that complainant began having difficulty making
decisions, was prone to mood swings and occasionally hyperventilated.
The second co-worker noted that complainant had been very respected at
the agency and that the alleged discriminatory actions of the agency
caused her to become shaky, emotional, and fearful.
Complainant also submitted medical records showing that she was diagnosed
with Major Depression due to an occupational problem in February 1995 and
stemming back 3 to 4 months. The doctor prescribed an anti-depressant
and noted that complainant had depression/stress disorder, had trouble
sleeping, cried easily and was fatigued. Records dated April 14, 1995
note that complainant was much improved and suggested that she come back
in a year to check in.
It is clear from complainant's statements, the statements of her spouse
and co-workers and the medical documentation provided that complainant's
emotional distress was caused by the alleged discriminatory actions of
the agency. It is also clear that this emotional distress was severe
and that it effected many aspects of her life beginning in Spring 1994
and becoming drastic between November 1994 and April 1995.
Lastly, complainant submitted a letter from a doctor specializing in
diabetes. After examining complainant and reviewing her case, the doctor
finds it highly likely that complainant's diabetes manifested several
years earlier than it would have absent the stress and unhealthy life
style that developed due to her unpleasant and hostile work environment.
As noted above, the agency used a per day formula to calculate
complainant's non-pecuniary damages award, concluding that an award of
$4,900.00 was appropriate. On appeal, complainant argues that an award
based on her earnings and the loss of her career is appropriate.<5>
We note that there is no formula for devising non-pecuniary damages
and that awards should be based on the facts of a particular case,
the severity and length of harm, and awards in similar cases.
Several Commission decisions have awarded compensatory damages in
cases somewhat similar to complainant's. In Rountree v. Department
of Agriculture, EEOC Appeal No. 01941906 (July 7, 1995), the
Commission ordered an award of $8,000 in non-pecuniary damages where the
complainant's statement and a psychologist's report indicated that some,
not all as in the case at hand, of complainant's emotional distress
over a 12-month period, including feelings of inadequacy, failure and
depression, were the result of a discriminatory performance appraisal
and the denial of bonus pay. In Bever v. Department of Agriculture,
EEOC Appeal No. 01953949 (October 31, 1996), the Commission ordered
an award of $15,000 in non-pecuniary damages where the complainant's
situational anxiety was shown to be linked to harassment, the complainant
was required to take medication as a result thereof, and the complainant's
symptoms included uncontrolled crying, weight gain, and depression.
In a more recent case, a complainant testified to feelings of incompetency
and worthlessness, stress and sleep problems over several months brought
on by the agency's discrimination in the form of unfair AWOL charges,
accusations of misconduct, and other reprimands. The complainant
also established that he had visited a psychologist several times.
The Commission awarded him $12,000 in non-pecuniary damages. See Hull
v. Department of Veterans Affairs, EEOC Appeal No. 01951441 (September
18, 1998).
In another more recent case, the Commission awarded a complainant $35,000
in non-pecuniary damages where the complainant testified to depression and
stress, and was diagnosed with dysthymia, a type of depression, caused
by unfair work assignments, a fully successful performance appraisal,
and harassment. See Johnson v. Department of the Interior, EEOC Appeal
No. 01961812 (June 18, 1998).
In determining the amount of non-pecuniary damages to which complainant
is entitled, the Commission has considered that complainant suffered
from Major Depression for a 4-5 month period and was also suffering
from depression and anxiety for 6-7 months prior to the period of
Major Depression. We have also carefully considered the testimony of
complainant, her husband and her co-workers, which clearly establish
that the alleged discrimination caused major changes in complainant's
personality and affected her daily activities. Moreover, we have
considered the opinion of complainant's doctor that complainant's
diabetes likely developed earlier than it otherwise would have
due to complainant's work environment. Finally, we have taken in
to consideration amounts awarded in similar cases and the goals of
compensatory damages. The Commission therefore finds that complainant
is entitled to non-pecuniary damages in the amount of $20,000.00.
Attorney's Fees
Along with her claim for compensatory damages, complainant submitted a
claim for attorney's fees, including an affidavit from her attorney with
a detailed bill attached. Complainant's counsel (counsel) requested
fees in the amount of $4,323.00 for work performed between April 26,
1995 and April 30, 1996. These fees were based on 33.3 hours of work at
an hourly rate of $130.00. Counsel also requested $59.83 in expenses
for this time period. In addition, complainant requested $465.00 for
the costs she incurred in hiring experts to make a financial forecast of
the present value of her loss of future earnings and retirement income,
which she claimed as compensatory damages. The agency denied all of
the attorney's fees and expenses, as explained above.
As an initial matter, we note that the agency has misconstrued the plain
meaning of the settlement agreement. While the agreement does note that
the agency will pay reasonable attorney's fees incurred by complainant
up to the date of the execution of the agreement, it notes in a later
sentence that the parties agree that complainant is not precluded from
seeking recovery of reasonable attorney's fees in connection with any
claim for compensatory damages. The agency's interpretation of the
agreement completely changes the meaning of the latter sentence�i.e.,
the agency's interpretation is that complainant is not precluded from
seeking recovery of fees incurred in connection with her compensatory
damages claim, but that the agency will not award such fees because
it will only grant attorney's fees incurred prior to the date of the
execution of the agreement.
As noted above, a settlement agreement is a contract between the
complainant and the agency and it is the intent of the parties as
expressed in the contract, and not some unexpressed intention, that
controls the contract's construction. See Eggleston, supra. Moreover,
according to the plain meaning rule, if the writing appears to be plain
and unambiguous on its face, its meaning must be determined from the
four corners of the instrument without resort to extrinsic evidence of
any nature. See Montgomery Elevator, supra. Here, the express language
of the agreement notes that complainant is not precluded from seeking
recovery of attorney's fees incurred in connection with her compensatory
damages claim. We refuse to credit the agency's unexpressed intention
that any such recovery would be denied as occurring after the execution
of the settlement agreement.
The agency's decision to deny the claim because compensatory damages
awards may not contain an award for attorney's fees and because
regulations only authorize attorney's fees for services performed after
the filing of a written complaint are equally absurd. Complainant merely
submitted her claim for compensatory damages along with her attorney's
claim for fees and costs. Moreover, Commission precedent clearly
holds that a complainant who prevails through a negotiated settlement
is entitled to attorney's fees and costs under the same standards as
any other prevailing party. See EEO Management Directive 110 at 11-3
(November 9, 1999) While a settlement agreement that fails to preserve
the issue of fees and costs will operate as an implicit waiver of fees
and costs, complainant did preserve the issue in the case at hand. Id.
Accordingly, the agency's arguments for denying payment of attorney's fees
and costs fail. We now turn to an analysis of the amount of attorney's
fees and costs to be awarded.
We first find that complainant's claims for travel costs for visits made
to her attorney between March 30, 1995 and April 7, 1995<6>, as well as
$136.76 for telephone charges and $47.49 for copying charges incurred
prior to the execution of the settlement agreement, while properly
analyzed as claims for costs rather than for compensatory damages,
must be denied. The plain language of the settlement agreement limits
complainant to $1,000.00 for attorney's fees incurred prior to the
April 7, 1995 agreement and makes no provisions for reimbursements for
other expenses incurred by complainant during this period. While the
agreement provides that complainant may seek compensatory damages and
attorney's fees in connection with any compensatory damages claim,
it does not indicate that complainant will be reimbursed for costs she
incurred prior to the agreement beyond this $1,000.00 for attorney's fees.
Thus, complainant's claims for telephone charges, copying charges, and
travel costs to her attorney incurred prior to the settlement agreement
are denied.
Complainant also requested reimbursement of travel costs for visits made
to her attorney between April 7 and May 5, 1995, i.e., after the date of
settlement agreement. The agency denied these costs, stating that the
bill submitted by the attorney established that on several of these days,
complainant did not visit her attorney and that the other costs were
incurred after the execution of the settlement agreement. On appeal,
however, counsel notes that the bill which the agency relied on to argue
that complainant was requesting travel costs for visits she did not
make, only covered the services rendered up to a certain date and that
the other consultations which complainant noted did occur. Moreover, as
noted above, the settlement agreement does not limit attorney's fees and
costs to costs incurred prior to the agreement. We therefore find that
complainant has established that she incurred travel costs in visiting
with her attorney on 6 days between April 7, 1995 and May 5, 1995 and
that she made these visits because of the alleged discriminatory actions
of the agency. Accordingly, we award complainant a total of $121.00 for
her travel costs. See Hafiz v. Department of Defense, EEOC Petition
No. 04960021 (July 11, 1997), citing Fiene v. United States Postal
Service, EEOC Petition No. 04920009 (September 3, 1992) (reasonable
costs incurred directly by the prevailing complainant are compensable).
Turning now to the remainder of complainant's claim, as noted above,
a complainant who prevails through a negotiated settlement is entitled
to attorney's fees and costs under the same standards as any other
prevailing party. See Maher v. Gagne, 448 U.S. 122 (1980); Copeland
v. Marshall, 641 F.2d 880 (D.C.Cir. 1980); EEOC v. Madison Community Unit
Sch. Dist. 12, 818 F.2d 577 (7th Cir. 1987); Cerny v. Department of the
Navy, EEOC Request No. 05930899 (October 19, 1994). A complainant who
settles a discrimination action prior to a determination that the agency
engaged in discriminatory employment practices is a prevailing party,
for the purposes of awarded attorney's fees, if she obtains some of the
benefits she sought in bringing the action. See Hogeland v. Department
of Agriculture, EEOC Appeal No. 01976440 (June 14, 1999); Troie v. United
States Postal Service, EEOC Request No. 05930866 (September 22, 1994).
A prevailing party is also entitled to expert fees as part of recoverable
attorney's fees. 42 U.S.C. � 1988. The fee award is usually determined
by multiplying the number of hours reasonably expended by a reasonable
hourly rate. Blum v. Stenson, 465 U.S. 866 (1984); Hensley v. Eckerhart,
461 U.S. 424 (1983).
In the case at hand, the efforts of counsel resulted in a compensatory
damages award significantly larger than what the agency awarded in
its final decision. Complainant therefore meets the definition of
prevailing party and, as such, is entitled to attorney's fees for work
done in connection with her damages claim. See, e.g., Hogeland, supra.
Counsel testified that she charged complainant $130.00 per hour, noting
her extensive experience in employment discrimination law and the fact
that she has charged $130.00 per hour in past cases. The agency offers
no argument that this is not a reasonable hourly rate and we find it to
be reasonable.
Counsel provided a detailed explanation of the professional services
she rendered, including the amount of time she spent on each activity.
The agency indicated that they believed time spent on two days�10.30
hours on May 4, 1995 and 9.20 hours on May 5, 1995 was excessive, stating
that 7 hours a day was reasonable. The bills submitted indicate that
on May 4, 1995, counsel had a conference with the client, reviewed the
affidavits, called four witnesses and prepared and revised declarations.
On May 5, 1995, counsel had a conference with a client, prepared an
affidavit, revised the client's declaration, prepared a cover letter
to the agency, prepared exhibits, had a conference with a witness,
reviewed time and billing records and prepared her own affidavit.
In rebuttal to the agency's argument that the time she spent on these
activities was excessive, counsel noted that complainant was given
a finite time to prepare her claim and rather than work seven hours
daily for three days, she worked a total of 19.5 hours in two days.
Considering the range of tasks completed by counsel on these two days,
we find the time she spent to be reasonable.
Counsel submitted an additional bill, dated July 30, 1996, for work done
in response to the agency's response to complainant's claim. We find
the 9.7 additional hours recorded in this submission to be reasonable
as well. Counsel therefore spent a total of 43 hours on complainant's
compensatory damages claim at a rate of $130.00. Moreover, the submission
included an additional claim for $3.00 in costs, for a total of $62.83
in costs.
The question now becomes whether the fact that complainant was
unsuccessful in some of her claims should effect the award of attorney's
fees and/or costs. 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. Hensley v. Echerkart, 461 U.S. 424 (1983). In this case,
complainant's unsuccessful claim for $196,088.00 for the present value of
the loss of future earnings and retirement income is in no way related
to her successful claims for non-pecuniary and past pecuniary damages.
Complainant is therefore not entitled to reimbursement of the $485.00
she incurred for expert financial forecasting.
Moreover, the bills submitted by counsel indicate certain times spent on
the future earnings/retirement income argument. For example, on April
27, 1995, counsel billed 3 hours. During these hours she made a call to
complainant's medical organization, a call to the financial planner and
did legal research regarding front pay. The latter two tasks relate to
the unsuccessful lost earnings/retirement income argument. While it is
impossible to know with precision how much of the 3 hours were devoted to
these tasks, we estimate that they involved two-thirds of the 3 hours.
We therefore find that 2 hours of time on this day should be excluded.
On May 4, 1995, some portion of the 10.30 hours was spent calling the two
financial experts. Again, we cannot know how much time this involved,
but we find that it is reasonable to conclude that each phone call took
30 minutes, leading to a further exclusion of 1 hour of time. Finally,
on May 5, 1995, some portion of the 9.2 hours was spent conferring
with one of the financial experts and revising his declaration. It is
reasonable to conclude that this task involved 1 hour. Accordingly,
from the 43 hours which we find to be a reasonable amount of time,
we exclude 4 hours for time spent on an unsuccessful claim that is
completely distinct from complainant's successful claims. Accordingly,
counsel should be compensated for the remaining 39 hours at a rate of
$130.00 per hour, for a total of $5,070.00. Counsel should also be
reimbursed for $62.83 in costs.
CONCLUSION
Based upon a review of the evidence, the agency's final decision with
regard to compensatory damages and attorney's fees is MODIFIED. For the
reasons stated above, the Commission finds that complainant should be
awarded $20,050.00 in compensatory damages and $5,253.88 in attorney's
fees and costs ($5,070.00 for attorney's fees, $62.83 for attorney's
costs, and $121.00 for complainant's costs).
ORDER
The agency is ORDERED to take the following remedial action:
1. Issue a check to complainant in the amount of $20,171.00 within
fifteen calendar days of the date this decision becomes final.
2. Issue a check to complainant's counsel for $5,132.83 within fifteen
calendar days of the date this decision becomes final.
Submit a report of compliance, as provided below.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K1199)
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 64
Fed. Reg. 37,644, 37,659-60 (1999) (to be codified and hereinafter
referred to as 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)(Supp. V 1993). If the complainant files a civil action, the
administrative processing of the complaint, including any petition for
enforcement, will be terminated. See 64 Fed. Reg. 37,644, 37,659 (1999)
(to be codified and hereinafter referred to as 29 C.F.R. � 1614.409).
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0300)
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 64
Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter referred
to as 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 64 Fed. Reg. 37,644, 37,661 (1999) (to be codified and hereinafter
referred to as 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).
COMPLAINANTS' RIGHT TO FILE A CIVIL ACTION (R0400)
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 (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:
May 24, 2000
Date Carlton M. Hadden, Acting Director
Office of Federal Operations
1 On November 9, 1999, revised regulations governing the EEOC's federal
sector complaint process went into effect. These regulations apply to all
federal sector EEO complaints pending at any stage in the administrative
process. Consequently, the Commission will apply the revised regulations
found at 64 Fed. Reg. 37,644 (1999), where applicable, in deciding the
present appeal. The regulations, as amended, may also be found at the
Commission's website at www.eeoc.gov.
2 The FAD indicates that the settlement agreement was entered into before
complainant filed a formal complaint. Although a document entitled
"Complaint of Discrimination" is included in the record, complainant
does not dispute that she never filed this complaint.
3 We note that this claim is more properly termed a claim for awards
for costs and fees for expert and non-lawyer services. In the discussion
below, it will be addressed in the section dealing with attorney's fees.
4 While complainant did not file a formal complaint, the record does
contain the underlying counselor's report and the complainant's narrative
of the alleged discriminatory conduct.
5 Complainant's argument that the intangible harm she suffered
includes the loss of her career is a reiteration of earlier arguments
that complainant's damage award should include compensation for her
agreed-upon early retirement. We noted above that this argument is
without merit because compensatory damages are only awarded for harm
caused by the alleged discriminatory actions of the agency.
6 Complainant requested reimbursement for mileage and travel costs
for trips made to her attorney between March 30, 1995 and May 5, 1995.
Because the parties entered into a settlement agreement on April 7, 1995
that distinguished between costs incurred before and after the agreement,
we have divided the costs claimed by complainant accordingly.