0120160822_0120161875
10-20-2016
Michelle G.,1 Complainant, v. Ray Mabus, Secretary, Department of the Navy, Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Michelle G.,1
Complainant,
v.
Ray Mabus,
Secretary,
Department of the Navy,
Agency.
Appeal No. 0120160822 & 0120161875
Hearing Nos. 570-2011-00022X
570-2010-00562X
Agency Nos. 10-68876-00615
09-68876-01351
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Equal Employment Opportunity Commission (EEOC or Commission) accepts Complainant's appeal alleging noncompliance with the Agency's November 5, 2015 final order concerning her equal employment opportunity (EEO) complaint alleging employment discrimination in violation of Title VII of the Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. � 2000e et seq., and the Equal Pay Act of 1963 (EPA), as amended, 29 U.S.C. � 206(d) et seq.
BACKGROUND
Complainant was employed as a Supervisory Program Analyst at the Agency's International Programs Office in Washington, D.C. She applied for the position of Director of Operations and Policy but was not selected.
On June 12, 2009 and March 3, 2010, Complainant filed two formal EEO complaints alleging discrimination and harassment on the basis of sex (female) in violation of Title VII and the EPA.
The complaints were investigated. Following the investigation, Complainant requested a hearing before an EEOC Administrative Judge (AJ). Prior to the hearing, the AJ dismissed the claim raised by Complainant in Hearing No. 570-2011-00022X. The AJ conducted a hearing including 19 witnesses over May 20-22, 2013, and June 5-6, 2013.
Following the hearing, on September 9, 2015, the AJ issued a decision finding discrimination. The AJ found that Complainant was subjected to harassment based on sex and in reprisal for prior protected EEO activity. The AJ did not find harassment pursuant to the EPA. In addition, the AJ concluded that Complainant established that she was subjected to disparate treatment with respect to her sex in violation of Title VII and the EPA. The AJ found no discrimination on one of the claims raised within her complaints.
On October 2, 2015, the AJ issued a second decision awarding Complainant fees and costs for her attorney (Attorney). The AJ reduced the Attorney's fees by 15% because the AJ did not find discrimination with respect one of the events raised by Complainant. The Agency issued its final order implementing the AJ's decisions and orders on November 9, 2015. Specifically, the Agency was ordered to:
1. Calculate the amount of lost wages, including interest, for the time periods of February 13, 2006 to August 2006; and September 2007 to January 18, 2009.
2. Calculate the amount of liquidated damages due to Complainant under the EPA consistent with the guidance regarding lost wages.
3. Calculate the amount of back pay and applicable interest from January 18, 2009, to the date Complainant assumes or declines the position of Director, Operations and Policy Division in IPO.
4. Correct Complainant's performance appraisals for fiscal year 2009 and fiscal year 2010 to read level "4."
5. Pay Complainant $ 1,199.79 in pecuniary compensatory damages.
6. Pay Complainant $ 85,000.00 in non-pecuniary compensatory damages.
7. Pay Complainant $ 239,540.60 for Attorney's fees and $ 3,174.28 in legal costs.
8. Provide 8 hours of training to IPO Mangers to ensure violations of the EPA and Title VII do not recur.
9. Post a notice regarding the finding of discrimination.
Complainant indicated that she received the Agency's Final Order on November 17, 2015. Subsequently, on December 17, 2015, Complainant filed an appeal, docketed as EEOC Appeal No. 0120160822, noting that the Agency failed to include the timeframes for compliance listed in the orders issued by the AJ.
In addition, Complainant asked that the Commission reverse the AJ's decision to reduce the Attorney's fees by 15%. The Attorney asserted that he sought $ 378,144.00 in fees. However, the AJ erroneously reduced the fees amount to $239,540.60 using three across-the-board reductions. Namely, the Attorney noted that the AJ reduced fees (1) by 15% for an additional reduction for the one unsuccessful claim; (2) by 15% for one claim in violation of the EPA which he asserted was "inextricably intertwined" with Complainant's Title VII claims, and (3) by 5% for issues in dismissed EEOC case no. 570-2011-00022X.
On February 9, 2016, Complainant indicated to the Agency that it failed to comply with the orders set forth in the AJ's decision. She noted that the AJ's decision provided that the Agency would comply "within 90 days of the date the Agency issued a Final Order." Complainant asserted that the Agency's final order did not include such language. On March 8, 2016, Complainant submitted her claim that the Agency had not taken any remedial action and asked that the Agency comply.
The Agency's April 7, 2016 response to the appeal stated that it had initiated the process of calculating back pay and liquidated damages. The Agency had sent Complainant an offer for the position which Complainant declined on March 14, 2016. As such, the Agency stated it would base its calculation of back pay and liquidated damages with an end date of March 30, 2016. The Agency noted that the payment was still being processed. The Agency asserted that it changed Complainant's performance appraisal. The Agency stated that it has processed and delivered a check to Complainant's mailing address on March 22, 2016, for pecuniary damages, non-pecuniary damages, and fees and costs for the Attorney. The Agency claimed that it posted the notice within its facility in January 2016.
On May 7, 2016, Complainant filed another appeal to the Commission stating that the Agency has not complied with the remedies ordered by the AJ. This appeal was docketed as EEOC Appeal No. 0120161875. Complainant asserted that the Agency has not provided her with the back pay and liquidated damages for the Director position as ordered. Complainant also noted that the Agency has not changed her performance appraisal. Complainant stated that she received a check for in June for $ 52,682.94, but without an explanation of how the Agency came to this number. She asserted that there was no indication of what portion of the Final Order this represents such as interest, principal, liquidated damages, or benefits. She stated that a spreadsheet was included, but there was no statement of the calculations, methods or formula. Complainant requests that the Commission find that the Agency did not comply with the AJ's orders and provide her with additional fees and costs for the Attorney.
We find both appeals involve the same matter addressed by the AJ and the Agency, and have consolidated the matters into a single decision.
ANALYSIS AND FINDINGS
Attorney's Fees
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.
By federal regulation, an agency is required to award Attorney's fees and costs for the successful processing of an EEO complaint in accordance with existing case law and regulatory standards. EEOC Regulation 29 C.F.R. � 1614.501(e)(1)(ii). To determine the proper amount of the fee, a lodestar amount is reached by calculating the number of hours reasonably expended by the attorney on the complaint multiplied by a reasonable hourly rate. Blum v. Stenson, 465 U.S. 336 (1934); Hensley v. Eckerhart, 461 U.S. 424 (1983).
In EEOC Appeal No. 0120160822, the only issue raised by Complainant is the AJ's decision to reduce the Attorney's fee by 15% for an unsuccessful claim; 15% for an EPA claim for another unsuccessful claim; and 5% for the dismissal of the claim raised in a EEOC Hearing No. 570-2011-00022X. The Attorney noted that the AJ reduced the fee petition for certain entries by $9,620.00 to which the Attorney did not object. This reduced the fees from $378,144.00 to $368,524.00. Complainant then voluntarily reduced the fees by another 10% for the unsuccessful claims, further reducing the fee request to $331,671.60.
The circumstances under which the lodestar may be adjusted are extremely limited, and are set forth in MD-110, Chapter 11 � VI.F. If the AJ or Agency determines that an adjustment to the lodestar is appropriate, the AJ or Agency may calculate the adjustment by either adding or subtracting a lump sum from the lodestar figure or by adding or subtracting a percentage of the lodestar. Id. The AJ or Agency has discretion to determine the amount of the adjustment. Id. The AJ or Agency must provide a detailed written explanation of why the adjustment was made, and what factors supported the adjustment. Coutin v. Young & Rubicam Puerto Rico, 124 F.3d 331 (1st Cir. 1997).
In determining the degree of success, the Commission will consider all relief obtained in light of a complainant's goals, and, if a complainant achieved only limited success, the Complainant should recover fees that are reasonable in relation to the results obtained. Hensley, 461 U.S. at 434. The Commission has held that one method of addressing the appropriate amount of attorney's fees when a complainant is not completely successful is to take a percentage across-the-board reduction of compensable time billed. See Blinick v. Dep't of Housing & Urban Dev., EEOC Appeal No. 07A20079 (Feb. 3, 2004) (citing McGinnis v. Dep't of Defense, EEOC Request No. 05920150 (July 15, 1992)). Courts have held that fee applicants should exclude time expended on "truly fractionable" claims or issues on which they did not prevail. See Nat'l Ass'n of Concerned Veterans v. Sec'y of Defense, 675 F.2d 1319, 1327 n.13 (D.C. Cir. 1982). Claims are fractionable or unrelated when they involve "distinctly different claims for relief that are based on different facts and legal theories." Hensley, 461 U.S. at 434-35. Even if complainant did not prevail on every aspect of her complaint, that does not, in itself, justify a reduction in the hours expended where the successful and unsuccessful claims are closely intertwined. See id. "Claims are fractionable or unrelated when they involve distinctly different claims for relief that are based on different facts and legal theories." Id.
We find that the AJ's reduction of fees by 15% for an unsuccessful claim and the 5% reduction for a dismissed claim are appropriate. However, we find that the AJ's reduction of fees by another 15% for Complainant's EPA claim is not supported. We note that this claim involved the same events albeit under different legal basis. However, the claim raised by Complainant was a claim of discrimination on the basis of sex based on compensation which falls within the purview of both Title VII and the EPA. As such, we find that the claims were inextricably intertwined and the reduction by 15% is not warranted. As such, we modify the AJ's award of fees to the Attorney. Accordingly, the fee request for $ 331,671.60 is reduced by 20% or $ 265,337.28 for fees for the Attorney. As a final note regarding fees, Complainant is also entitled to additional attorney's fees and costs for work performed in the course of this appeal. A petition should be submitted in accordance with the order below.
Agency's Non-Compliance
EEOC Regulation 29 C.F.R. � 1614.504 provides that final action which has not been the subject of an appeal or civil action shall be binding on the Agency, and that if Complainant believes that the Agency has failed to comply with the terms thereof, Complainant shall notify the EEO Director, in writing, of the alleged noncompliance within 30 days of when Complainant knew or should have known of the alleged noncompliance. If, after 30 days from the date of the Agency's receipt of the Complainant's written allegations of noncompliance, Complainant is not satisfied with the Agency's attempt to resolve the matter, Complainant may appeal to the Commission for a determination as to whether the Agency has complied with the terms of its decision. 29 C.F.R. � 1614.504(b).
In the instant matter, there is no evidence provided by the Agency to establish that it had fully complied with the orders by the AJ and implemented in its Final Order. We note that Complainant is correct in stating that the Agency erred in failing to include the timeframe as ordered by the AJ in which to take the corrective action. Based on the Agency's failure to provide evidence, we cannot find that Agency has taken all of the corrective actions ordered by the AJ. As such, we order the Agency, to the extent that it has not done so, to take the corrective action and provide the Commission with evidence to show that the Agency has complied with all the orders issued by the AJ.
CONCLUSION
Accordingly, the Agency's determination that it has complied with its final order is REVERSED and the matter is REMANDED in compliance with the ORDER below.
ORDER
To the extent it has not done so already, the Agency is ordered to take the following remedial actions. The Agency shall:
1. Calculate the amount of lost wages, including interest, for the time periods of February 13, 2006 to August 2006; and September 2007 to January 18, 2009. The Agency shall determine the appropriate amount of back pay, with interest, and other benefits due Complainant, pursuant to 29 C.F.R. � 1614.501, no later than sixty (60) calendar days after the date this decision is issued. The Complainant shall cooperate in the Agency's efforts to compute the amount of back pay and benefits due, and shall provide all relevant information requested by the Agency. The Agency shall provide Complainant with its specific reasoning and calculations on how it reached this amount of back pay. If there is a dispute regarding the exact amount of back pay and/or benefits, the Agency shall issue a check to the Complainant for the undisputed amount within sixty (60) calendar days of the date the Agency determines the amount it believes to be due. The Complainant may petition for enforcement or clarification of the amount in dispute. The petition for clarification or enforcement must be filed with the Compliance Officer, at the address referenced in the statement entitled "Implementation of the Commission's Decision."
2. Calculate the amount of liquidated damages due to Complainant under the EPA consistent with the guidance regarding lost wages.
3. Calculate the amount of back pay and applicable interest from January 18, 2009, to March 30, 2016, the date Complainant declined the position of Director, Operations and Policy Division in IPO. The Agency shall determine the appropriate amount of back pay, with interest, and other benefits due Complainant, pursuant to 29 C.F.R. � 1614.501, no later than sixty (60) calendar days after the date this decision is issued. The Complainant shall cooperate in the Agency's efforts to compute the amount of back pay and benefits due, and shall provide all relevant information requested by the Agency. The Agency shall provide Complainant with its specific reasoning and calculations on how it reached this amount of back pay. If there is a dispute regarding the exact amount of back pay and/or benefits, the Agency shall issue a check to the Complainant for the undisputed amount within sixty (60) calendar days of the date the Agency determines the amount it believes to be due. The Complainant may petition for enforcement or clarification of the amount in dispute. The petition for clarification or enforcement must be filed with the Compliance Officer, at the address referenced in the statement entitled "Implementation of the Commission's Decision."
4. Correct Complainant's performance appraisals for fiscal year 2009 and fiscal year 2010 to read level "4."
5. Pay Complainant $ 1,199.79 in pecuniary compensatory damages.
6. Pay Complainant $ 85,000.00 in non-pecuniary compensatory damages.
7. Pay Complainant $ 265,337.28 for Attorney's fees and $ 3,174.28 in costs.
8. Provide 8 hours of training to IPO Mangers to ensure violations of the EPA and Title VII do not recur.
9. Consider taking disciplinary action against the IPO Managers. The Agency shall report its decision. 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.
10. The Agency shall complete all of the above actions within ninety (90) calendar days from the date on which the decision is issued.
The Agency is further directed to submit a report of compliance for its actions taken in accordance with the instant decision, as provided in the statement entitled "Implementation of the Commission's Decision." The report shall include supporting documentation of the Agency's calculation of backpay and other benefits due Complainant, including evidence that the corrective action has been implemented. For those remedial actions taken by the Agency prior to the Commission's decision, the Agency shall provide the Compliance Officer with evidence and supporting documentation for its compliance as indicated below to ensure that it has complied with all the orders listed above.
POSTING ORDER (G0610)
The Agency is ordered to post at its Agency's International Programs Office copies of the attached notice. Copies of the notice, after being signed by the Agency's duly authorized representative, shall be posted by the Agency within thirty (30) calendar days of the date this decision becomes final, and shall remain posted for sixty (60) consecutive days, in conspicuous places, including all places where notices to employees are customarily posted. The Agency shall take reasonable steps to ensure that said notices are not altered, defaced, or covered by any other material. The original signed notice is to be submitted to the Compliance Officer at the address cited in the paragraph entitled "Implementation of the Commission's Decision," within ten (10) calendar days of the expiration of the posting period.
ATTORNEY'S FEES (H0610)
If Complainant has been represented by an attorney (as defined by 29 C.F.R. � 1614.501(e)(1)(iii)), he/she is entitled to an award of reasonable attorney's fees incurred in the processing of the complaint. 29 C.F.R. � 1614.501(e). The award of attorney's fees shall be paid by the Agency. The attorney shall submit a verified statement of fees to the Agency -- not to the Equal Employment Opportunity Commission, Office of Federal Operations -- within thirty (30) calendar days of this decision becoming final. The Agency shall then process the claim for attorney's fees in accordance with 29 C.F.R. � 1614.501.
IMPLEMENTATION OF THE COMMISSION'S DECISION (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.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0416)
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), at Chap. 9 � VII.B (Aug. 5, 2015). All requests and arguments must be submitted to the Director, Office of Federal Operations, Equal Employment Opportunity Commission. The requests may be submitted via regular mail to P.O. Box 77960, Washington, DC 20013, or by certified mail to 131 M Street, NE, Washington, DC 20507. 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 (T0610)
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 your appeal with the Commission, until such time as the Agency issues its final decision on your complaint. 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. If you file a request to reconsider and also file a civil action, 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
October 20, 2016
__________________
Date
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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0120160822 & 0120161875