[Redacted], Lenard H., 1 Complainant,v.Frank Kendall, Secretary, Department of the Air Force, Agency.

Equal Employment Opportunity Commission

Feb 9, 2022

Appeal No. 2020000732 (E.E.O.C. Feb. 9, 2022)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Lenard H.,1 Complainant, v. Frank Kendall, Secretary, Department of the Air Force, Agency. Request No. 2021004244 Appeal No. 2020000732 Hearing No. 430-2016-00310X Agency No. 9B1C15012F19 DECISION ON REQUEST FOR RECONSIDERATION The Agency timely requested that the Equal Employment Opportunity Commission (EEOC or Commission) reconsider its decision in EEOC Appeal No. 2020000732 (June 21, 2021). EEOC regulations provide that the Commission may, in its discretion, grant a request to reconsider any previous Commission decision issued pursuant to 29 C.F.R. § 1614.405(a), 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 our previous decision, we found that the EEOC Administrative Judge (AJ) erred in concluding that the Agency violated the Rehabilitation Act when the Agency required that Complainant undergo a fitness-for-duty examination (FFDE) with an Occupational Medicine Physician on February 3, 2015 as a condition of employment for the GS-12 Supervisory Police Officer position. We determined that the Occupational Medicine Physician’s requirement of additional examinations for Complainant by orthopedic specialists were a legitimate part of the individualized assessment to determine whether Complainant's disabilities would allow him to safely perform in the position in question. 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. 2021004244 2 We therefore determined that the AJ erred in finding the Rehabilitation Act was violated when the Occupational Medicine Physician required additional information or opinions from orthopedic specialists before concluding Complainant could safely perform the duties of the position in question. However, we affirmed the AJ’s finding that the Agency violated the Rehabilitation Act when the Agency avoided paying for the costs associated with the orthopedic examinations that the Occupational Medicine Physician required for Complainant as a condition of his employment. We further found that the AJ erred in awarding Complainant $90,000 in non-pecuniary damages, finding that Complainant was not entitled to non-pecuniary damages for the emotional pain and suffering caused by being required to see the Occupational Medicine Physician and the orthopedic specialists. We nevertheless found that Complainant sustained $10,000 in non- pecuniary compensatory damages because the FFDE process was prolonged for an extended amount of time. We also affirmed the AJ’s award of $42,234.50 in attorney fees and $3,305.67 in costs with some small adjustments, noting that the Agency did not contest these awarded amounts on appeal. In adjusting these amounts slightly, we observed that Complainant’s counsel improperly billed at their full hourly rate for travel time and we reduced the amount billed for travel time by half. We also found that Complainant’s counsel improperly billed for their online legal research costs, as such expenses are characterized as “overhead” already captured in an attorney's reasonable hourly rate. Therefore, we found that Complainant was entitled to an award of $40,782.25 in attorney fees and $3,067.58 in costs. In its request for reconsideration, the Agency maintains that our previous decision improperly failed to significantly reduce or change the amount of attorney’s fees or costs awarded by the AJ. The Agency asserts that our prior decision erred in noting that it did not contest the AJ’s award regarding the attorney’s fees and costs. The Agency maintains that it concluded its brief on appeal to the Commission by noting, “Furthermore, the damages, attorney’s fees, and costs are unsupported by record evidence.” The Agency therefore argues that it challenged the AJ’s award of attorney’s fees and costs previously on appeal and is entitled to seek a reduction in attorney’s fees and costs based on our prior decision’s determination that Complainant did not fully prevail on the issues in his complaint. As noted on appeal, 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. 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. 886 (1984); Hensley v. Eckerhart, 461 U.S. 424 (1983). The circumstances under which the lodestar may be adjusted are extremely limited and are set forth in Equal Employment Opportunity Management Directive for 29 C.E.R. Part 1614 (EEO MD-110) at Ch. 11 § VI.F. (Aug. 5, 2015). The party seeking to adjust the lodestar, either up or down, has the burden of justifying the deviation. Id. 2021004244 3 We emphasize that a request for reconsideration is not a second appeal to the Commission. EEO MD-110 at Chap. 9 § VI.A; see, e.g., Lopez v. Dep't of Agric., EEOC Request No. 0520070736 (Aug. 20, 2007). Rather, a reconsideration request is an opportunity to demonstrate that the appellate decision involved a clearly erroneous interpretation of material fact or law, or will have a substantial impact on the policies, practices, or operations of the Agency. The Agency has not done so here. We also consider that Complainant’s counsel performed a substantial amount of work throughout the hearing process, which included filing a motion to compel (which was partially granted), overcoming the Agency’s motion for summary judgement, as well as attending an in-person hearing on August 27, 2019, among other things. We recognize that the Agency was found to have violated the Retaliation Act and Complainant’s counsel obtained an award of compensatory damages for Complainant. Further, we note that the Commission has the discretion to review only those issues specifically raised in an appeal. See EEO MD-110 at Ch. 9, § IV.A.3. In its appeal to the Commission in EEOC Appeal No. 2020000732, the Agency did not substantively address any portion of Complainant’s September 23, 2019 Verified Petition for Attorney’s Fees and Costs, and did not directly address any of the hours specifically billed by Complainant’s counsel. Therefore, the Agency has not met its burden to justify a deviation from the lodestar amount. 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 No. 2020000732 remains the Commission's decision. There is no further right of administrative appeal on the decision of the Commission on this request. The Agency shall comply with the Order as set forth below. ORDER To the extent it has not already done so, the Agency is ordered to take the following remedial actions: 1. Pay Complainant $10,000 in non-pecuniary damages within 60 calendar days of the date of this decision. 2. Pay $40,782.25 in attorney fees and $3,067.58 in costs within 60 calendar days of the date of this decision. 2021004244 4 POSTING ORDER The Agency is ordered to post outside the Fort Eustis Occupational Health Clinic in Newport News, Virginia, and in the Clinic's examination rooms copies of the attached notice, as well as in any other conspicuous places at the Joint Base Langley-Eustis where civilian applicants and employees who are required to undergo an FFDE are likely to see them. 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. 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 as directed in the paragraph entitled “Implementation of the Commission's Decision,” within 10 calendar days of the expiration of the posting period. The report must be in digital format, and must be submitted via the Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). ATTORNEY'S FEES (H1019) If Complainant has been represented by an attorney (as defined by 29 C.F.R. § 1614.501(e)(1)(iii)), she/he 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 receipt of this decision. 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 (K0719) Under 29 C.F.R. § 1614.405(c) and § 1614.502, compliance with the Commission’s corrective action is mandatory. Within seven (7) calendar days of the completion of each ordered corrective action, the Agency shall submit via the Federal Sector EEO Portal (FedSEP) supporting documents in the digital format required by the Commission, referencing the compliance docket number under which compliance was being monitored. Once all compliance is complete, the Agency shall submit via FedSEP a final compliance report in the digital format required by the Commission. See 29 C.F.R. § 1614.403(g). The Agency’s final report must contain supporting documentation when previously not uploaded, and the Agency must send a copy of all submissions to the Complainant and his/her representative. 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. 2021004244 5 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. Failure by an agency to either file a compliance report or implement any of the orders set forth in this decision, without good cause shown, may result in the referral of this matter to the Office of Special Counsel pursuant to 29 C.F.R. § 1614.503(f) for enforcement by that agency. COMPLAINANT’S RIGHT TO FILE A CIVIL ACTION (P0610) This decision of the Commission is final, and there is no further right of administrative appeal from the Commission’s decision. 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. 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. 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 February 9, 2022 Date