Margaret L.,1 Complainant,v.Julian Castro, Secretary, Department of Housing and Urban Development, Agency.

Equal Employment Opportunity Commission

Nov 30, 2016

0520160433 (E.E.O.C. Nov. 30, 2016)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013

Margaret L.,1
Complainant,

v.

Julian Castro,
Secretary,
Department of Housing and Urban Development,
Agency.

Request Nos. 0520160423, 0520160433
Appeal Nos. 0120150433, 0120160089
Petition No. 0420150018

Agency Nos. PI-03-02 and PI-04-08

DECISION ON REQUEST FOR RECONSIDERATION

Complainant requested reconsideration of the decision in EEOC Appeal Nos. 0120150433,
0120160089, and Petition No. 0420150018 (June 2, 2016). EEOC Regulations provide that
the Commission may, in its discretion, grant a request to reconsider any previous Commission
decision where the requesting party demonstrates 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. See 29 C.F.R.
§1614.405(c).

In her underlying complaint filed on January 2, 2003, Complainant alleged that the Agency
discriminated against her on the bases of disability and in reprisal for prior protected EEO
activity when: (1) on September 25, 2002, Complainant was issued a progress review that she
perceived as unfair, and (2) was provided with negative comments by management in
November 2002, about a late report.

In an August 17, 2004 complaint, Complainant alleged the Agency discriminated against her
based on age (64), disability, and in reprisal for prior EEO complaints concerning (as
numbered in the Commission’s prior decision):

1 This case has been randomly assigned a pseudonym which will replace Complainant’s name
when the decision is published to non-parties and the Commission’s website.
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2. the denial or delay in approving leave requests and/or requiring justification for leave
requests;
3 complaints about Complainant’s work performance by her supervisor;
4. a rating of “fully successful” received on March 28, 2004;
5. on April 13, 2004, Complainant was called at home when she was sick and asked to
come to work;
6. on July 12, 2004, Complainant was issued a Leave and Counseling Memorandum;
7. on July 13, 2004, Complainant was issued a change in her compressed work schedule;
and
8. management not assigning Complainant more interesting work.

Both complaints were investigated. Complainant requested a hearing on both complaints
before an Equal Employment Opportunity Commission Administrative Judge (AJ). Initially an
AJ issued a decision by summary judgment in favor of the Agency. Complainant appealed the
AJ’s decision and the Commission reversed the AJ’s summary judgment decision and
remanded the matter for a hearing. Ultimately, the Agency issued final decisions finding no
discrimination on either complaint. Complainant appealed those findings of no discrimination
which were docketed under EEOC Appeal Nos. 0120111827 and 0120113765.

In EEOC Appeal Nos. 0120111827 and 0120113765 (July 16, 2014), the Commission found
that the Agency's failure to submit the complete complaint records made it impossible to
determine whether the findings and credibility determinations made or adopted in its final
decisions were supported by the record. Based on the conduct of the Agency, the Commission
concluded that the imposition of sanctions was warranted. The Commission issued a default
judgment for Complainant finding that the Agency's actions constituted unlawful retaliation.
Additionally, the Commission determined that there was evidence that established
Complainant’s right to relief. The decision ordered the Agency: (1) to remove any negative
comments preserved in Complainant’s personnel records or performance reviews/appraisals
beginning in September 2002, as well as the Leave and Counseling Memorandum dated July
12, 2004; (2) to conduct training for the management officials who have been found to have
subjected Complainant to unlawful retaliation; and (3) to conduct an investigation regarding
Complainant’s claim for compensatory damages and to issue a decision on the claim. The
Commission also awarded Complainant attorney’s fees.

The Agency issued a final order implementing the Commission’s decision. Complainant
appealed the final order which was docketed as EEOC Appeal No. 0120150433.

Additionally, Complainant (Petitioner) submitted a Petition for Enforcement regarding
compliance with the Commission’s decision in EEOC Appeal Nos. 0120111827 and
0120113765. The Petition for Enforcement was docketed as 0420150018.

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While the Petition for Enforcement was pending, the Agency issued a final decision regarding
compensatory damages and attorney’s fees and costs. Complainant filed an appeal from that
decision, which was docketed under EEOC Appeal No. 0120160089.

The Commission noted the two appeals, EEOC Appeal Nos. 0120150433 and 0120160089,
and Petition No. 0420150018, all alleged issues with the Agency’s compliance or
noncompliance with the Commission’s decision in EEOC Appeal Nos. 0120111827 and
0120113765. Thus, the Commission consolidated the appeals and petition.

In EEOC Appeal Nos. 0120150433 and 0120160089 and Petition No. 0420150018, the
Commission noted that despite Complainant’s claim that she experiences stress due to seven
years of harassment, the finding by the Commission only involved events from September
2002 through July 2004. Thus, the Commission noted that the damages that could be awarded
were limited to the damages caused by the events found unlawful in EEOC Appeals Nos.
0120111827 and 0120113765. The Commission found Complainant’s claim for $300,000 in
nonpecuniary damages to be excessive and awarded $25,000 in nonpecuniary damages. The
Commission determined Complainant did not establish that she was entitled to pecuniary
damages.

With regard to attorney’s fees and costs, the Commission determined the starting point for the
hourly rate in 2004, when Complainant’s Attorney started, was the Retainer Agreement
Complainant had with her Attorney that set the hourly rate at $380 with upward adjustments
based on changes over time in the Laffey Matrix.

With regard to the number of hours expended, the Commission noted the Attorney claimed
total hours expended was 562.6 hours. The Commission rejected the Agency’s position to
reduce the hours claimed by 50% because Complainant only prevailed on her retaliation claim.
The Commission noted the Attorney represented Complainant in this matter since March 2004,
providing over a decade’s worth of legal representation. The Commission stated while
Complainant did not prevail on every basis of discrimination claimed and did not obtain all the
relief requested, it was more appropriate to apply a 10% across-the-board reduction to the
number of hours requested. The Commission also rejected the Agency’s claim that the hours
should be further reduced. The Commission determined Complainant was entitled to
$217,943.55 in total attorney’s fees. Complainant was awarded $4,209.79 in costs.

The Commission noted the Agency was also ordered to: (1) remove any negative comments
preserved in Complainant’s personnel records or performance reviews/appraisals beginning in
September 2002, as well as the Leave and Counseling Memorandum dated July 12, 2004; and
(2) conduct training for the management officials who have been found to have subjected
Complainant to unlawful retaliation. The Commission determined the Agency failed to show it
posted the notice regarding the finding by the Commission. The Commission found the
Agency did not show that it took the actions ordered by the Commission and thus, had not
complied with the Commission’s previous decision.

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Subsequently, Complainant filed the present request for reconsideration. Complainant argued
that she was entitled to a larger compensatory damages award because she was subjected to a
seven-year period of harassment. Complainant further stated that even if the two-year period
determined in the prior Commission decision is considered, she was entitled to greater
compensatory damages. Complainant stated she suffered far more extensive damages than
aggravation of her fibromyalgia. Complainant noted she suffered from stress, overwhelming
fatigue, constant pain (the fibromyalgia trigger points in her body were extremely painful and
inflamed), repeated viral and bacterial infections, lung and sinus infections, social isolation,
and severe damage to reputation and professional standing. Complainant also challenged the
Commission’s denial of pecuniary damages.

With regard to the award of attorney’s fees and expenses, Complainant argues that the decision
awarded attorney’s fees, based on the historic Laffey Matrix rates in effect at the time of the
legal work in question, since the representation began in 2004. Complainant argues that this
resulted in fees as low as $380 an hour for her Attorney, rather than the Laffey Matrix rate of
$520 an hour in effect at the time of the attorney’s fee petition. Further, Complainant
challenges the 10% reduction of attorney’s fees as she argues that all of the claims were closely
related and no duplicative or excessive billing was identified.

In response to Complainant’s request for reconsideration, the Agency notes Complainant
challenges the $25,000 nonpecuniary damages award because it only referenced events from
September 2002 through July 2004. The Agency notes that this timeframe came from the
default judgment entered against the Agency on July 16, 2014. The Agency states
Complainant could have appealed the default judgment by filing a request for reconsideration
or filing a civil action in federal court. The Agency notes Complainant failed to do either.
The Agency argues Complainant cannot now attack the 2014 default judgment, finding two
years of liability, through her 2016 request for reconsideration. In addition, the Agency argues
that Complainant’s award for compensatory damages is consistent with EEOC case law. The
Agency also states the Commission’s denial of pecuniary damages was proper. Finally, the
Agency argues that the Commission’s decision on attorney’s fees was consistent with EEOC
case law.

Upon careful consideration of the arguments presented in the request, the Commission rejects
Complainant’s claim that her damages award should have been greater because she was
subjected to harassment for a seven-year period. Specifically, we note that the default
judgment in our prior decision concerned events from September 2002 through July 2004. To
the extent Complainant disagreed with the events identified in the default judgment, she should
have appealed the previous decision. In addition, the Commission finds Complainant failed to
show that the award of $25,000 in nonpecuniary damages was inappropriate or inconsistent
with awards for similar types of harm experienced as a result of an Agency's discriminatory
conduct. Similarly, the Commission finds Complainant failed to show the denial of pecuniary
damages was improper.

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With regard to the award of attorney’s fees, we find Complainant failed to provide any
authority for her position that the Commission improperly relied on the Retainer Agreement
Complainant had with her Attorney that set the hourly rate at $380 with upward adjustments
based on changes over time in the Laffey Matrix. Additionally, we find the 10% across-the-
board reduction of hours billed was consistent with EEOC case law.

After reviewing the previous decision and the entire record, the Commission finds that the
request fails to meet the criteria of 29 C.F.R. § 1614.405(c), and it is the decision of the
Commission to deny the request. The decision in EEOC Appeal Nos. 0120150433,
0120160089 and Petition No. 0420150018 remains the Commission's decision. There is no
further right of administrative appeal on the decision of the Commission on this request.

ORDER

To the extent it has not already done so, the Agency is ordered to take the following remedial
actions:

1. The Agency shall pay Complainant $25,000 in nonpecuniary, compensatory damages.
2. The Agency shall pay Complainant $217,943.55 in attorney’s fees and $4,209.79 in
costs.
3. The Agency shall remove any negative comments preserved in Complainant’s personnel
records or performance reviews/appraisals beginning September 2002, as well as the
Leave and Counseling Memorandum dated July 12, 2004.
4. The Agency shall conduct training for the management officials who have been found
to have subjected Complainant to unlawful retaliation.

The Agency is further directed to submit a report of compliance, as provided in the statement
entitled “Implementation of the Commission’s Decision.” The report shall include supporting
documentation verifying that the corrective action has been implemented.

POSTING ORDER (G1016)

The Agency is ordered to post at its Washington, D.C. facility copies of the attached notice.
Copies of the notice, after being signed by the Agency's duly authorized representative, shall
be posted both in hard copy and electronic format by the Agency within 30 calendar days of
the date this decision was issued, and shall remain posted for 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 10 calendar days of the expiration of the posting period.

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ATTORNEY'S FEES (H1016)

If Complainant has been represented by an attorney (as defined by 29 C.F.R.
§ 1614.501(e)(1)(iii)), she is entitled to an award of reasonable attorney's fees incurred in the
processing of the complaint. 29 C.F.R. § 1614.501(e). The award of attorney's fees shall be
paid by the Agency. The attorney shall submit a verified statement of fees to the Agency -- not
to the Equal Employment Opportunity Commission, Office of Federal Operations -- within
thirty (30) calendar days of the date this decision was issued. 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 (K0610)
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.
COMPLAINANT’S RIGHT TO FILE A CIVIL ACTION (Q0610)
This decision affirms the Agency’s final decision/action in part, but it also requires the Agency
to continue its administrative processing of a portion of your complaint. You have the right to
file a civil action in an appropriate United States District Court within ninety (90) calendar
days from the date that you receive this decision on both that portion of your complaint which
the Commission has affirmed and that portion of the complaint which has been remanded for
continued administrative processing. In the alternative, you may file a civil action after one
hundred and eighty (180) calendar days of the date you filed your complaint with the Agency,
or 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
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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 (Z0815)

If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may
request permission from the court to proceed with the civil action without paying these fees or
costs. Similarly, if you cannot afford an attorney to represent you in the civil action, you may
request the court to appoint an attorney for you. You must submit the requests for waiver of
court costs or appointment of an attorney directly to the court, not the Commission. The court
has the sole discretion to grant or deny these types of requests. Such requests do not alter the
time limits for filing a civil action (please read the paragraph titled Complainant’s Right to File
a Civil Action for the specific time limits).

FOR THE COMMISSION:

______________________________ Carlton M. Hadden’s signature
Carlton M. Hadden, Director
Office of Federal Operations

November 30, 2016
Date