Judy Mooney, Complainant,v.Daniel R. Glickman, Secretary, Department of Agriculture, Agency.

Equal Employment Opportunity CommissionMay 24, 2000
01974494 (E.E.O.C. May. 24, 2000)

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.