0720080017
12-08-2009
Melvin D. Lampkins, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Melvin D. Lampkins,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 0720080017
Hearing No. 451200700057X
Agency No. 1G781003006
DECISION
Following its November 13, 2007 final order, the agency filed a timely
appeal which the Commission accepts pursuant to 29 C.F.R. � 1614.405(a).
On appeal, the agency requests that the Commission affirm its rejection of
an EEOC Administrative Judge's (AJ) finding of discrimination in violation
of Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as
amended, 29 U.S.C. � 791 et seq. and Title VII of the Civil Rights Act
of 1964 (Title VII), as amended, 42 U.S.C. � 2000e et seq. The agency
also requests that the Commission affirm its rejection of the relief
ordered by the AJ. For the following reasons, the Commission REVERSES
the agency's final order.
BACKGROUND
At the time of events giving rise to this complaint, complainant worked
as a Labor Custodian at the agency's San Antonio, Texas facility.
On September 12, 2006, complainant filed an EEO complaint alleging that
he was discriminated against on the bases of disability and reprisal
for prior protected EEO activity when: (1) on May 5, 2005, management
breached his medical confidentiality during a pre-disciplinary meeting;
and (2) on June 22, 2006, he was issued a fourteen-day suspension for
unacceptable conduct.
At the conclusion of the investigation, complainant was provided with a
copy of the report of investigation and notice of his right to request a
hearing before an AJ. Complainant timely requested a hearing. The AJ
held a hearing on May 31, 2007, and issued a decision on September
29, 2007, finding that the agency subjected complainant to unlawful
disability and reprisal discrimination. Specifically, the AJ found that
the agency violated the Rehabilitation Act by disseminating complainant's
private medical information during a pre-disciplinary meeting. The AJ
also found that the agency subjected complainant to unlawful reprisal
discrimination when complainant's Manager (M1) issued complainant a
fourteen-day suspension for unacceptable conduct.
By way of relief, the AJ awarded complainant: $25,000.00 in non-pecuniary,
compensatory damages; $22,399.96 in attorney's fees and costs; restoration
of complainant's sick leave; and proven medical expenses. The AJ also
ordered the agency to expunge the notice of fourteen-day suspension from
complainant's personnel file; provide 8-hours of EEO training for the
responsible management officials; and post a notice.
The agency subsequently issued a final order rejecting the AJ's
finding that complainant proved that he was subjected to discrimination
as alleged. Complainant subsequently filed an appeal on the issue of
attorney's fees. Complainant contends that the AJ erred in finding that
complainant's attorney was not entitled to the prevailing market rate.
STANDARD OF REVIEW
Pursuant to 29 C.F.R. � 1614.405(a), all post-hearing factual findings by
an AJ will be upheld if supported by substantial evidence in the record.
Substantial evidence is defined as "such relevant evidence as a reasonable
mind might accept as adequate to support a conclusion." Universal
Camera Corp. v. National Labor Relations Board, 340 U.S. 474, 477 (1951)
(citation omitted). A finding regarding whether or not discriminatory
intent existed is a factual finding. See Pullman-Standard Co. v. Swint,
456 U.S. 273, 293 (1982). An AJ's conclusions of law are subject to a
de novo standard of review, whether or not a hearing was held.
ANALYSIS AND FINDINGS
Here, as to claim (1), the Commission finds that there is substantial
evidence in the record to support the AJ's finding that the agency
violated the Rehabilitation Act. The Commission's regulations
implementing the Rehabilitation Act provide for the confidentiality
of medical records. Specifically, 29 C.F.R. � 1630.14(c)(1) provides,
in pertinent part, that: "Information obtained . . . regarding the
medical condition or history of any employee shall . . . be treated
as a confidential medical record, except that: (i) [s]upervisors and
managers may be informed regarding necessary restrictions on the work or
duties of the employee and necessary accommodations." By its terms, this
requirement applies to confidential medical information obtained from
"any employee," and is not limited to individuals with disabilities.
See Hampton v. United States Postal Service, EEOC Appeal No. 01A00132
(April 13, 2000). Although not all medically-related information
falls within this provision, documentation or information concerning
an individual's diagnosis is without question medical information that
must be treated as confidential except in those circumstances described
in 29 C.F.R. Part 1630. See Hampton, supra; ADA Enforcement Guidance:
Preemployment Disability-Related Questions and Medical Examinations
(October 10, 1995), at 22; EEOC Enforcement Guidance on the Americans
with Disabilities Act and Psychiatric Disabilities (March 25, 1997) at
question 15; EEOC Enforcement Guidance: Disability Related Inquiries and
Medical Examinations of Employees under the Americans with Disabilities
Act (July 27, 2000) at p. 4.
After a review of the record in its entirety, it is the decision of
the Commission to uphold the AJ's finding that the agency violated
the Rehabilitation Act by disseminating complainant's private medical
information to employees without a need to know during a pre-disciplinary
meeting. (Report of Investigation, Affidavit A, 100-111). The record
reflects that on March 20, 2005, complainant was absent from work after
being taken by ambulance to the hospital. Upon his return to work,
complainant provided his supervisor (S1) with medical documentation
in support of his request for FMLA leave in conjunction with the
March 20 absence. The record shows that complainant first provided
a document which he admitted he created himself, and then provided a
second document that was heavily redacted. Complainant stated that he
"sanitized" the documentation because he was "very uncomfortable giving
[S1 his] medical information." (Hearing Transcript, 34).
In his hearing testimony, S1 stated that because the medical documentation
provided by complainant was so heavily redacted, he became "suspicious"
and contacted the Office of the Inspector General (OIG). (H.T., 232-236).
In March 2006, the OIG provided complainant's manager (M1) with a copy
of their report, and in May 2006, M1 called a pre-disciplinary meeting
to discuss the OIG's finding. At the meeting were complainant, a union
steward, and a supervisor, all of whom were given a copy of the OIG
report which contained detailed medical records including documentation
of complainant's symptoms when he was admitted to the hospital and the
resulting diagnoses of the psychiatrist and emergency room physician.
(R.O.I., Affidavit B). We concur with the AJ's finding that the release
of this medical information was a per se violation of the Rehabilitation
Act. We do not consider in this decision whether complainant is a
qualified individual with a disability under the Rehabilitation Act.
In so finding, we note that the AJ's decision correctly states the facts,
applies the pertinent principles of law, and is supported by substantial
evidence in the record.
With respect to claim (2), we concur with the AJ's finding that
complainant established a prima facie case of reprisal in that he
participated in past EEO activity, the management officials at issue
were aware of his past activity, and he was subsequently subjected to an
adverse action which followed so closely in time to his EEO activity that
a retaliatory motive can be inferred. Specifically, that complainant
was issued a fourteen-day suspension for unacceptable conduct relating
to his absence from work on March 20, 2005. We further concur with
the AJ's finding that although the agency articulated a legitimate,
nondiscriminatory reason for its actions, namely that complainant
"[s]ubmitted altered medical documentation for FMLA coverage on
March 20, 2005," the evidence of record supports a finding that this
articulated reason is a pretext for reprisal. In so finding, the AJ
credits complainant's testimony that he had no intention to defraud the
agency when he submitted "sanitized" medical documentation in support
of his absence. The AJ also noted that complainant had no previous
discipline; that the fourteen-day suspension was not commensurate with the
agency's progressive discipline policy; and that the agency had previously
accepted similarly redacted medical documentation from complainant's wife.
(AJ Decision at 6). Accordingly, we concur with the AJ's finding that
complainant was subjected to unlawful reprisal discrimination.
Compensatory Damages
Turning to the issue of remedies, we first address the AJ's award of
$25,000.00 in non-pecuniary, compensatory damages. Compensatory damages
may be awarded for the past pecuniary losses, future pecuniary losses,
and non-pecuniary losses which are directly or proximately caused by
the agency's discriminatory conduct. Compensatory and Punitive Damages
Available Under Section 102 of the Civil Rights Act of 1991, EEOC Notice
No. 915.002 (July 14, 1992), at 8. Pecuniary losses are out-of-pocket
expenses that are incurred as a result of the employer's unlawful action,
including job-hunting expenses, moving expenses, medical expenses,
psychiatric expenses, physical therapy expenses, and other quantifiable
out-of-pocket expenses. Id. Past pecuniary losses are the pecuniary
losses that are incurred prior to the resolution of a complaint. Id.,
at 8-9.
A compensatory damages award should fully compensate a complainant for
the harm caused by the agency's discriminatory action even if the harm
is intangible. Id. at 13. Thus, a compensatory damages award should
reimburse a complainant for proven pecuniary losses, future pecuniary
losses, and non- pecuniary losses. A complainant has a duty to mitigate
his or her pecuniary damages. Id. at 9. If a respondent can prove that
a complainant failed to mitigate pecuniary damages, the damages award
should be reduced to reflect all losses that could have been avoided by
the exercise of reasonable diligence. Id. at 9-10.
Initially, we point out that non-pecuniary, compensatory damages
are designed to remedy a harm and not to punish the agency for its
discriminatory actions. See Memphis Community School Dist. v. Stachura,
477 U.S. 299, 311-12 (1986) (stating that a compensatory damages
determination must be based on the actual harm sustained and not the
facts of the underlying case). The Commission notes that for a proper
award of non-pecuniary damages, the amount of the award should not be
"monstrously excessive" standing alone, should not be the product of
passion or prejudice, and should be consistent with the amount awarded
in similar cases. See Ward-Jenkins v. Department of the Interior, EEOC
Appeal No. 01961483 (March 4, 1999) (citing Cygnar v. City of Chicago,
865 F. 2d 827, 848 (7th Cir. 1989)).
Here, the AJ found that complainant suffered both emotional and physical
distress as a result of the agency's actions. In support of this
finding, the AJ noted that complainant and his wife presented evidence
that as the result of the agency's discriminatory actions complainant
became depressed, isolated himself from family and friends, suffered
a relapse in his alcoholism, had uncontrolled anger, crying bouts,
and that the symptoms of his diabetes worsened. (AJ Decision at 8).
Accordingly, we affirm the AJ's award of $25,000.00 in non-pecuniary,
compensatory damages. The Commission notes that this award is not
"monstrously excessive" standing alone, is not the product of passion or
prejudice, and is consistent with the amount awarded in similar cases.
See Utt v. United States Postal Serv., EEOC Appeal No. 072007001
(March 26, 2009) (awarding complainant $25,000.00 in non-pecuniary,
compensatory damages where complainant provided testimony that as
a result of discrimination he suffered from stress, low self-esteem,
difficulty sleeping, weight gain, curtailed recreational activities, and
had to sell some of his possessions because of financial problems); Parker
v. Department of the Navy, EEOC Appeal No. 0720080062 (February 26, 2009)
(awarding complainant $25,000.00 in non-pecuniary, compensatory damages
where complainant endured emotional pain and suffering, humiliation,
difficulty sleeping, weight gain, and loss of enjoyment of life as a
result of discrimination).
Attorney's Fees
Title VII authorizes the award of reasonable attorney's fees. 29 C.F.R. �
1614.501(e). To establish entitlement to attorney's fees, complainant
must first show that he or she is a prevailing party. Buckhannon Bd. and
Care Home Inc. v. West Virginia Dept. of Health and Human Resources,
532 U.S. 598 (2001). A prevailing party for this purpose is one who
succeeds on any significant issue, and achieves some of the benefit
sought in bringing the action. Davis v. Department of Transportation,
EEOC Request No. 05970101 (February 4, 1999) (citing Hensley v. Eckerhart,
461 U.S. 427, 433 (1983)).
The fee award is ordinarily determined by multiplying a reasonable number
of hours expended on the case by a reasonable hourly rate, also known as a
"lodestar." See 29 C.F.R. �1614.501(e)(2)(ii)(B); Bernard v. Department of
Veterans Affairs, EEOC Appeal No. 01966861 (July 17, 1998). In determining
the number of hours expended the Commission recognizes that the attorney
"is not required to record in great detail the manner in which each
minute of his time was expended." Id. However, the attorney does have
the burden of identifying the subject matters on which he spent his time
by submitting sufficiently detailed and contemporaneous time records to
ensure that the time spent was accurately recorded. Id.
Further, a reasonable fee award may be assessed in light of factors such
as: (1) the time required (versus time expended) to complete the legal
work; (2) novelty or difficulty of the issues; (3) the requisite skill to
properly handle the case; (4) the degree to which counsel is precluded
from taking other cases; (5) the relief sought and results obtained;
and (6) the nature and length of the attorney-client relationship. See
Cerny v. Department of the Army, EEOC Request No. 05930899 (October 19,
1994). Complainant is only entitled to an award for time reasonably
expended. It does not always follow that the amount of time actually
expended is the amount of time reasonably expended. Elvin v. Department
of Labor, EEOC Request No. 01943425 (August 31, 1995). Rather, "billing
judgment" is an important component in fee setting, and hours that would
not be properly billed to a private client are also not properly billed
to the agency pursuant to a successful EEO claim. Id. Counsel for the
prevailing party should make a "good faith effort to exclude from a fee
request hours that are excessive, redundant or otherwise unnecessary." See
Bernard, EEOC Appeal No. 01966861.
Here, we find that the AJ erred in finding that complainant's attorneys
were only entitled to an hourly rate of $200 per hour. The Commission
has held that attorneys who demonstrate that they charged reduced rates
to federal employees in discrimination cases, based on public interest
motives, are entitled to receive an hourly rate at the prevailing
market rate, notwithstanding a fee agreement. See Morales v. United
States Information Agency, EEOC Appeal No. 01956779 (December 3, 1997),
req. for recons. den., EEOC Request No. 05980241 (December 9, 1999). In
the instant matter, it is clear that complainant's attorneys entered
into the fee agreement with complainant at a reduced rate based upon
public interest motives; thus, complainant is entitled to the prevailing
market rate regardless of the fee agreement.1 Complainant's attorneys
submitted a fee petition to the agency for $48,803.52 in attorney's fees.2
The petition stated that that attorneys had spent 112 hours working
on complainant's case and that their customary hourly rates were $425
and $375, respectively. We find these rates reasonable and supported
by the evidence of record. Accordingly, we modify the AJ's attorney's
fees award and find that complainant's attorneys are entitled to fees
and costs in the amount of $45,708.29.3
We also note that in his brief on appeal, complainant's attorney
requests payment for 37.5 hours of work spent after the filing of the
fee petition and in the instant appeal. Upon review, we find the time
requested by complainant's attorney to be a reasonable amount of time
and we find the list of time spent on the appeal contains sufficient
detail to support the request. As such, we order the agency to award
complainant additional attorney's fees in the amount of $16,212.30
(41.57 hours multiplied by hourly rate of $390.00) for services rendered
in connection with this appeal. We are denying complainant's request
for Westlaw charges of $173.92 for legal research because the receipt
submitted is not sufficiently specific to link the charges to the
instant complainant or explain why such research was necessary. Thus,
complainant shall be awarded a total of $61,920.59 in attorney's fees
($45,708.29 + $16,212.30).
CONCLUSION
We REVERSE the agency's final order rejecting the AJ's finding of
discrimination and we REMAND this matter to the agency to take corrective
action in accordance with the Order herein.
ORDER
The agency shall take the following remedial actions:
1. Within 30 days of the date this decision becomes final,
the agency shall pay complainant $25,000.00
in non-pecuniary, compensatory damages.
2. Within 30 days of the date this decision becomes final,
the agency shall pay complainant $61,920.59
in attorney's fees and costs.
3. Within 30 days of the date this decision becomes final,
the agency shall rescind the notice of
fourteen-day suspension and expunge all records regarding it.
All salary and benefits withheld as a
result of the suspension will also be restored.
4. Within 30 days of the date this decision becomes final,
the agency shall restore any leave used by
complainant as a result of the agency's discriminatory actions.
5. Within 30 days of the date this decision becomes final, the
agency shall send complainant a notice giving him the opportunity to
submit documentary evidence of past pecuniary damages related to the
discrimination found in this complaint. Complainant shall be given 30
days to supply such evidence to the agency. Within 90 days of the date
this decision becomes final the agency shall issue a decision determining
the amount, if any, of past pecuniary damages that should be awarded
due to the discrimination found in this complaint.
6. Within 180 days of the date this decision becomes final,
the agency shall provide at least 8 hours of training to M1 and
other management officials at the San Antonio facility regarding
their responsibilities under EEO laws, with a special emphasis on the
Rehabilitation Act and medical confidentiality.
7. Within 180 days of the date this decision becomes final, the
agency shall consider taking appropriate disciplinary action against M1
and all other responsible management officials still employed by the
agency. The Commission does not consider training to be disciplinary
action. The agency shall report its decision to the Compliance Officer
referenced herein. If the agency decides to take disciplinary action,
it shall identify the action taken. If the agency decides not to take
disciplinary action, it shall set forth the reason(s) for its decision
not to impose discipline. If any of the responsible management officials
have left the agency's employment, the agency shall furnish documentation
of their departure date(s).
POSTING ORDER (G0900)
The agency is ordered to post at its San Antonio Processing and
Distribution Center, San Antonio, Texas facility copies of the attached
notice. Copies of the notice, after being signed by the agency's duly
authorized representative, shall be posted by the agency within thirty
(30) calendar days of the date this decision becomes final, and shall
remain posted for sixty (60) consecutive days, in conspicuous places,
including all places where notices to employees are customarily posted.
The agency shall take reasonable steps to ensure that said notices are not
altered, defaced, or covered by any other material. The original signed
notice is to be submitted to the Compliance Officer at the address cited
in the paragraph entitled "Implementation of the Commission's Decision,"
within ten (10) calendar days of the expiration of the posting period.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0408)
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, D.C. 20013. The agency's report must contain supporting
documentation, and the agency must send a copy of all submissions to
the complainant. If the agency does not comply with the Commission's
order, the complainant may petition the Commission for enforcement
of the order. 29 C.F.R. � 1614.503(a). The complainant also has the
right to file a civil action to enforce compliance with the Commission's
order prior to or following an administrative petition for enforcement.
See 29 C.F.R. �� 1614.407, 1614.408, and 29 C.F.R. � 1614.503(g).
Alternatively, the complainant has the right to file a civil action on
the underlying complaint in accordance with the paragraph below entitled
"Right to File A Civil Action." 29 C.F.R. �� 1614.407 and 1614.408.
A civil action for enforcement or a civil action on the underlying
complaint is subject to the deadline stated in 42 U.S.C. 2000e-16(c)
(1994 & Supp. IV 1999). If the complainant files a civil action, the
administrative processing of the complaint, including any petition for
enforcement, will be terminated. See 29 C.F.R. � 1614.409.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1208)
The Commission may, in its discretion, reconsider the decision in this
case if the complainant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. The appellate decision involved a clearly erroneous interpretation
of material fact or law; or
2. The appellate decision will have a substantial impact on the
policies, practices, or operations of the agency.
Requests to reconsider, with supporting statement or brief, must be filed
with the Office of Federal Operations (OFO) within thirty (30) calendar
days of receipt of this decision or within twenty (20) calendar days of
receipt of another party's timely request for reconsideration. See 29
C.F.R. � 1614.405; Equal Employment Opportunity Management Directive for
29 C.F.R. Part 1614 (EEO MD-110), 9-18 (November 9, 1999). All requests
and arguments must be submitted to the Director, Office of Federal
Operations, Equal Employment Opportunity Commission, P.O. Box 77960,
Washington, D.C. 20013. In the absence of a legible postmark, the
request to reconsider shall be deemed timely filed if it is received by
mail within five days of the expiration of the applicable filing period.
See 29 C.F.R. � 1614.604. The request or opposition must also include
proof of service on the other party.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely, unless extenuating circumstances
prevented the timely filing of the request. Any supporting documentation
must be submitted with your request for reconsideration. The Commission
will consider requests for reconsideration filed after the deadline only
in very limited circumstances. See 29 C.F.R. � 1614.604(c).
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (R0408)
This is a decision requiring the agency to continue its administrative
processing of your complaint. However, if you wish to file a civil action,
you have the right to file such action in an appropriate United States
District Court within ninety (90) calendar days from the date that
you receive this decision. In the alternative, you may file a civil
action after one hundred and eighty (180) calendar days of the date
you filed your complaint with the agency, or filed your appeal with the
Commission. If you file a civil action, you must name as the defendant in
the complaint the person who is the official agency head or department
head, identifying that person by his or her full name and official
title. Failure to do so may result in the dismissal of your case in
court. "Agency" or "department" means the national organization, and not
the local office, facility or department in which you work. Filing a civil
action will terminate the administrative processing of your complaint.
RIGHT TO REQUEST COUNSEL (Z1008)
If you decide to file a civil action, and if you do not have or cannot
afford the services of an attorney, you may request from the Court that
the Court appoint an attorney to represent you and that the Court also
permit you to file the action without payment of fees, costs, or other
security. See Title VII of the Civil Rights Act of 1964, as amended,
42 U.S.C. � 2000e et seq.; the Rehabilitation Act of 1973, as amended,
29 U.S.C. �� 791, 794(c). The grant or denial of the request is within
the sole discretion of the Court. Filing a request for an attorney with
the Court does not extend your time in which to file a civil action.
Both the request and the civil action must be filed within the time
limits as stated in the paragraph above ("Right to File A Civil Action").
FOR THE COMMISSION:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
December 8, 2009
__________________
Date
1 The record reflects that complainant's attorneys, as part of the Federal
Employee Legal Services Center, provide legal representation to federal
employees "at a reasonable cost, consistent with [their] federal salary."
(Memorandum of Law In Support of Appeal of Attorney Fee Award, Ex. A).
2 Later complainant amended this amount to be $48,303.56 and then later
still referred to the amount as $48,503.56.
3 This amount equals $45,208.33 in attorney's fees and $499.96 in travel
expenses. We concur with the AJ's finding that complainant's attorneys
are entitled to 1/2 the hourly rate for travel. We also concur with
the AJ's finding that because complainant's attorneys failed to provide
receipts or other adequate documentation, they are not entitled to
reimbursement for Westlaw research or postage.
??
??
??
??
2
0720080017
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
2
0720080017