[Redacted], Sherman K., 1 Complainant,v.Denis R. McDonough, Secretary, Department of Veterans Affairs (Veterans Health Administration), Agency.

Equal Employment Opportunity Commission

Aug 19, 2021

Appeal No. 2020001888 (E.E.O.C. Aug. 19, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Sherman K.,1 Complainant, v. Denis R. McDonough, Secretary, Department of Veterans Affairs (Veterans Health Administration), Agency. Appeal No. 2020001888 Hearing Nos. 480-2014-0002X; 480-2014-0003X Agency Nos. 200P-0664-2008104423; 200P-0664-2011103430 DECISION On December 16, 2019, Complainant filed an appeal with the Equal Employment Opportunity Commission (EEOC or Commission), pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s November 8, 2019 final order concerning his 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 Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq. For the following reasons, the Commission AFFIRMS the Agency’s final order. BACKGROUND During the relevant timeframe, Complainant worked as a Supervisory Photographer, GS-1060- 12, at the Agency's San Diego Healthcare System (VAMC), located in San Diego, California. While in this position, Complainant was the designated Chief of the Medical Media section of the Education Service, until the Medical Media section was eliminated in 2011. 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. 2020001888 2 On October 11, 2008 (and later amended), Complainant filed a formal EEO complaint (Agency No. 200P-0664-2008104423) alleging that the Agency subjected him to discrimination and a hostile work environment on the bases of sex (male), race (African American), age (born in 1945), and reprisal (prior EEO activity) when: 1. From 2005 through 2009, Complainant’s supervisor interfered with Complainant's authority to discipline a subordinate employee who Complainant supervised; 2. From 2005 through 2009, Complainant’s supervisor stated that the problems between Complainant and the subordinate employee were due to the two employees “butting heads;” 3. In February 2008, Complainant’s supervisor instructed Complainant to produce a video of the medical center director; 4. On or about March 19, 2008, Complainant's supervisor revoked his authority to work beyond his tour of duty without prior authorization; 5. From March 19, 2008 through December 30, 2008, Complainant’s supervisor refused to grant Complainant’s requests for compensatory time; 6. From March 2008 through December 23, 2008, Agency managers told Complainant that his requests for compensatory time would never be granted; 7. On or about April 10, 2008, Complainant's supervisor made changes to Complainant's performance standards; 8. On or about April 11, 2008, Complainant’s supervisor refused to meet with Complainant at a mutually agreeable time to discuss performance standards; 9. On or about August 28, 2008, Complainant's supervisor did not deny his statement to her that she was treating Complainant's conflict with his subordinate employee differently because both Complainant and the employee were black; 10. In or around September 2008, Complainant's supervisor denied his request to change or upgrade a DVD/CD player; 11. In or around November 2008, Complainant learned that his supervisor had falsely stated to an Agency manager that Complainant and his subordinate employee did not like each other; 12. On or about December 8, 2008, an Agency supervisor nominated Complainant for assignment to the Report of Survey Investigator (RSI) collateral duty; 13. On or about December 10, 2008, the Agency supervisor refused to rescind Complainant's RSI appointment; 14. On or about December 19, 2008, Complainant's supervisor sent Complainant’s performance evaluation to him late and via “guard mail;” 15. On or about December 19, 2008, Complainant learned that his performance evaluation contained insulting remarks, had been based on standards that had been changed during the appraisal period, and for which no progress review had been performed; 16. On or about December 19, 2008, Complainant’s supervisor stated to other Agency managers that Complainant “tends to lose paper” or claim “sabotage;” 17. On or about January 22, 2009, Agency managers questioned Complainant regarding his approval for maintenance work; 2020001888 3 18. Beginning January 20, 2009, an Agency manager did not respond to Complainant's EEO complaints or complaints about his performance review; 19. On or about February 12, 2009, Complainant learned that the Agency had eliminated a vacant illustrator position; 20. On or about March 6, 2009, an Agency supervisor falsely stated that Complainant had failed to timely complete mandatory training; 21. On or about May 5, 2009, Complainant learned that the Agency had added a new element to performance standards without involving Complainant; and 22. On or about May 5, 2009, Complainant's supervisor falsely accused Complainant of refusing to sign his revised performance standards. On July 5, 2011 (and later amended), Complainant filed a second EEO complaint (Agency No. 200P-0664-2011103430) alleging that the Agency subjected him to discrimination and a hostile work environment on the bases of sex (male), race (African American), age, and reprisal (prior EEO activity) when: 23. From approximately 2010 through 2011, the Agency did not involve Complainant in plans to reorganize the Education Unit; 24. On or about May 17, 2011, Complainant learned that the unit that he supervised would be eliminated, and his supervisor refused to disclose or discuss the impact of the elimination on his position; 25. On or about September 16, 2011, Complainant was reassigned to a Communications Specialist position; 26. On or about September 16, 2011, the Agency did not offer to provide or pay for training for Complainant for his newly assigned position; 27. On or about September 16, 2011, Complainant's supervisor told Complainant that if he did not accept his newly assigned position, his then-current position would be reevaluated, and his grade could be lowered; and 28. On or about November 1, 2011, Complainant was given performance standards for which he did not have background, training, or education to perform. Following investigations, the Agency provided Complainant copies of the reports of investigations and notice of his right to request hearings before an EEOC Administrative Judge. Complainant timely requested hearings and the complaints were subsequently consolidated. The AJ assigned (AJ1) to the matter issued an Order dated March 1, 2012 sanctioning the Agency for failing to maintain personnel records, as required by 29 C.F.R. § 1602.14, related to Complainant's allegation that he was discriminatorily denied compensatory time after March 2008 (Claim 5). As a result, the AJ granted partial default judgment in favor of Complainant on this claim. With respect to the remaining claims, a hearing was held from June 3-7, 2013, November 18-22, 2013 and June 10-14, 2014. AJ1 resigned sometime in 2014 and was replaced with a second EEOC Administrative Judge (AJ2). 2020001888 4 AJ2 issued a decision finding that the Agency had discriminated against Complainant on the bases of race, sex, and age when: on or about December 19, 2008, Complainant's supervisor sent Complainant's performance evaluation to him late, and via inter-office mail; (Claim (14)) and on or about March 6, 2009, Complainant's supervisor asked him to complete training which he had already completed (Claim (20)). With respect to each of the remaining claims, AJ2 found that Complainant had not demonstrated that he was subjected to discrimination and reprisal as alleged. On September 30, 2019, AJ2 issued a decision on damages and attorney fees. Therein, AJ2 awarded $77.57 in pecuniary compensatory damages, $5,885.00 in non-pecuniary compensatory damages, $28,073.00 in attorney's fees, and $728.45 in costs. AJ2 also ordered the Agency to expunge from Complainant's personnel folder the portion of Complainant's Performance Appraisal for Fiscal Year 2008 with the handwritten notation that stated, “[H]e tends to lose paper or say it was ‘sabotaged,’” and to post a notice. On November 8, 2019, the Agency issued its final order fully adopting AJ2’s decision. The instant appeal followed. ANALYSIS AND FINDINGS 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. Nat’l Labor Relations Bd., 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. An AJ’s credibility determination based on the demeanor of a witness or on the tone of voice of a witness will be accepted unless documents or other objective evidence so contradicts the testimony, or the testimony so lacks in credibility that a reasonable fact finder would not credit it. See EEOC Management Directive 110, Chapter 9, at § VI.B. (Aug. 5, 2015). We note that neither party challenges the AJ’s issuance of a partial default judgment sanction in favor of Complainant as to the compensatory time claim. In addition, neither party challenges the AJ’s finding of discrimination as to Claims (14) and (20). As a result, the Commission finds no basis to disturb the AJ’s decision in that regard. Upon careful review of the AJ’s decision and the evidence of record, as well as the parties’ arguments on appeal, we conclude that substantial evidence of record supports the AJ’s findings regarding the remaining claims. More specifically, Complainant failed to demonstrate that much of the claimed conduct occurred as alleged. Further, even assuming that the conduct occurred, the Agency articulated legitimate, non- discriminatory reasons for its actions which Complainant failed to rebut as pretextual. Finally, we find that substantial record evidence supports the AJ’s decision that the alleged incidents were insufficiently severe or pervasive to establish a hostile work environment. 2020001888 5 As a result, the Commission finds that the AJ’s finding that Complainant was not subjected to discrimination, reprisal, or a hostile work environment as to these claims is supported by substantial record evidence. We will now address the AJ’s award of remedies as to the partial default judgment finding in Claim (5) and the finding of discrimination in Claims (14) and (20). REMEDIES Pursuant to section 102(a) of the Civil Rights Act of 1991, a Complainant who establishes his or her claim of unlawful discrimination 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 nonpecuniary damages is $300,000.00. Id. In West v. Gibson, 527 U.S. 212 (1999), the Supreme Court held that the Commission has the authority to award compensatory damages in the federal sector EEO process. The particulars of what relief may be awarded, and what proof is necessary to obtain that relief, are set forth in detail in EEOC's Enforcement Guidance, Compensatory and Punitive Damages Available Under Section 102 of the Civil Rights Act of 1991 (July 14, 1992) (Guidance). Briefly stated, Complainant must submit evidence to show that the Agency's discriminatory conduct directly or proximately caused the losses for which damages are sought. Id. at 11-12, 14; Rivera v. Dep't. of the Navy, EEOC Appeal No. 01934157 (July 22, 1994). 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. Guidance 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. In Carle v. Dep't. of the Navy, the Commission explained that “objective evidence” of nonpecuniary damages could include a statement by the complainant explaining how he or she was affected by the discrimination. EEOC Appeal No. 01922369 (Jan. 5, 1993). Statements from others, including family members, friends, and health care providers could address the outward manifestations of the impact of the discrimination on the complainant. Id. The complainant could also submit documentation of medical or psychiatric treatment related to the effects of the discrimination. Id. However, evidence from a health care provider is not a mandatory prerequisite to establishing entitlement to nonpecuniary damages. Sinnott v. Dep't of Def., EEOC Appeal No. 01952872 (September 19, 1996). The Commission applies the principle that ‘a tortfeasor takes its victims as it finds them. Wallis v. U.S Postal Ser’v., EEOC Appeal No. 01950510 (Nov. 13, 1995) (quoting Williamson v. Handy Button Machine Co., 817 F.2d 1290, 1295 (7th Cir. 1987). The Commission also applies two exceptions to this general rule. First, when a complainant has a pre-existing condition, the agency is liable only for the additional harm or aggravation caused by the discrimination. 2020001888 6 Second, if the complainant's pre-existing condition inevitably would have worsened, the agency is entitled to a reduction in damages reflecting the extent to which the condition would have worsened even absent the discrimination; the burden of proof being on the Agency to establish the extent of this entitlement. Wallis, EEOC Appeal No. 01950510 (citing Maurer v. United States, 668 F.2d 98 (2d Cir. 1981); Finlay v. U.S. Postal Serv., EEOC Appeal No. 01942985 (April 29, 1997). Non-pecuniary damages are available to compensate the injured party for actual harm, even where the harm is intangible. Carter v. Duncan-Higgins, Ltd., 727 F.2d 1225 (D.C. Cir. 1984). Emotional harm will not be presumed simply because the complainant is a victim of discrimination. See Guidance at 5. The existence, nature, and severity of emotional harm must be proved. Id. Although there is no precise formula by which to calculate nonpecuniary damages, the method for computing non-pecuniary damages should typically be based on a consideration of the severity and duration of harm. Carpenter v. Dep’t. of Agric., EEOC Appeal No. 01945652 (July 17, 1995); Guidance at 8. We note 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. Dep’t. of the Interior, EEOC Appeal No. 01961483 (March 4, 1999) (citing Cygnar v. City of Chicago, 865 F.2d 827, 848 (7th Cir. 1989)). Default Judgment - Compensatory Time Off On March 1, 2012, AJ1 issued a default judgment as a sanction against the Agency for its failure to maintain personnel records related to Complainant's claim regarding the Agency’s denial of his requests for compensatory time after March 19, 2008 (Claim 5). In Matheny v. Dep't of Justice, EEOC Request No. 05A30373 (Apr. 21, 2005), the Commission addressed the issue of crafting an appropriate remedy when a default judgment has been rendered. The Commission held that complainants may be entitled to equitable remedies, including reinstatement, if they establish their right to relief by “evidence that satisfies the court.” Id. For example, the establishment of the elements of a prima facie case of discrimination would be sufficient to establish such a right. See Cox v. Soc. Sec. Admin., EEOC Appeal No. 0720050055 (Dec. 24, 2009); Royal v. Pep't of Veterans Affairs, EEOC Request No. 0520080052 (Sept. 25, 2009); Montes-Rodriguez v. Dep’t of Agriculture, EEOC DOC 0120080282 (Jan. 12, 2012). AJ2 noted in his decision that the evidence showed that the identified similarly situated employees (SS1 and SS2) whose requests for compensatory time was subject to Complainant’s supervisor’s (S1) approval were not treated more favorably than Complainant. Specifically, AJ2 stated: Complainant identified [SS1] and [SS2] as similarly situated employees whose requests for comp time were subject to S1's approval. The preponderance of the evidence establishes that after March 19, 2008, [S1] denied five of Complainant's comp time requests. 2020001888 7 However, she approved two in 2008, seven in 2009, five in 2010, and six in 2011. [S1] also granted and denied the comp time requests of [SS1] and [SS2]. The hearing record does not reflect the frequency of approvals or denials. However, both [SS1] and [SS2] testified that, after repeated denials, both [SS1] and [SS2] came to believe that none of their comp time requests would be approved. The preponderance of the evidence fails to establish that either [SS1] or [SS2] were treated more favorably than Complainant regarding approval or denial of comp time requests. Complainant also argued that S1 engaged in racially biased conduct when she stated that he and [his subordinate (C1)] were "butting heads." However, as previously analyzed, I found that that particular phrase indicates only that [S1] believed that Complainant and [C1] had engaged in strong disagreements. [S1’s] use of the phrase does not establish that she harbored a bias on any basis, much less a bias based on race. Complainant is therefore unable to establish an inference of bias based on his race, sex, or age regarding these claims. Thus, the Commission finds that Complainant's failure to establish a prima facie case precludes him from recovering back pay or other individual relief related to this claim. We find that substantial evidence supports AJ2’s finding that Complainant is precluded from receiving backpay associated with this claim because the record does not support a prima facie case of discrimination or reprisal. Nonetheless, Complainant's failure to establish a prima facie case of discrimination does not prevent him from being awarded other remedies. By issuing a default judgment against the Agency, Complainant may be entitled to an award of compensatory damages and/or attorney's fees as a prevailing party. The record shows that AJ2 considered the default judgment when assessing the amount of compensatory damages and attorney’s fees awarded. Accordingly, we will review Complainant’s entitlement to relief for this claim in the same manner below. Pecuniary Compensatory Damages Complainant presented documentary evidence that he sought medical treatment from his chiropractor (CH) between February 2009 and November 2012 and incurred a total of $725. AJ2 concluded that the preponderance of the evidence established that medical treatment sought during this timeframe was, in part related to the Agency's discriminatory conduct. AJ2 also concluded that the evidence established that the 25 non-discriminatory/retaliatory incidents out of the 28 claims (i.e., 89.3 percent) of the total claims alleged contributed to the exacerbation of Complainant's pre-existing condition of cervical subluxations. Accordingly, the AJ concluded that the discriminatory conduct caused 10.7 percent of the damages which amounted to $77.57. Complainant has presented no evidence demonstrating an entitlement to additional pecuniary damages. Accordingly, we find that the AJ’s pecuniary damages award is supported by substantial evidence in the record. 2020001888 8 Non-pecuniary Compensatory Damages The AJ concluded that Complainant credibly testified regarding the nature, severity, and duration of the harm he experienced. Specifically, Complainant testified that as a result of the harassing conduct, he experienced feelings of depression, acute stress, a persistent shifting of positions throughout the night when sleeping, and loss of self-esteem. He also experienced stomach pains, pressure in his head, an inability to concentrate, and apathy towards his work and personal life. In addition, Complainant testified that the stress from the Agency's actions manifested in physical pains down his spine into the lower part of his back and shoulder. Complainant identified the pain as a level "eight and nine" on a scale from 1-10 that would occasionally inhibit him from doing his job. Complainant further testified that these symptoms also prevented him from engaging in activities he had previously enjoyed, such as traveling, riding his motorcycle, crafting, and fishing, and ultimately contributed to the loss of his romantic relationship. In addition, the AJ noted that Complainant's disability rating from Veterans Affairs changed from 30 percent (in 1996) to 90 percent (in 2013), although Complainant explained that the rating had increased by 10 percent prior to increasing to 90 percent for reasons unrelated to the issues herein. However, the AJ found that Complainant did not include corroborating medical evidence that linked the increase in his rating to any of the Agency's actions. Complainant's symptoms compelled him to seek treatment from medical professionals, including CH (for back and shoulder pain) and two Kaiser Permanente physicians (for depression). Complainant testified that he sought emergency medical treatment when his chest felt blocked up due to stress but failed to provide a date or corroborating medical evidence of this incident. Complainant also testified that he had pre-existing conditions including depression, stomach and eye discomfort related to his service in the Vietnam War and shoulder discomfort as a result of his activity in Vietnam and a motorcycle accident. The AJ concluded that the evidence in the record connected the aggravation of Complainant’s pre-existing conditions and additional harm to the Agency’s discriminatory conduct, in part. The AJ cited decisions with similar harm and concluded that an appropriate valuation of the damages suffered to be $55,000. See, e.g., Doe v. Dep't of the Navy, EEOC Appeal No. 0720130020 (June 18, 2014) ($35,000 in non-pecuniary damages awarded after the complainant's former supervisor sent his closeout performance appraisal containing negative remarks via "guard mail" to his new supervisor, causing Complainant humiliation, job stress, feelings of depression, and a strained marital relationship); Mohr v. Dep't of Veterans Affairs, EEOC Appeal No. 0720050057 (Feb, 23, 2007) ($65,000 in non-pecuniary damages awarded based on the complainant’s suffering of anxiety, major depression, humiliation, sleep deprivation, panic attacks, and physical manifestations of distress. The complainant lost confidence, withdrew from his friends and family, and lost job satisfaction. He required medical treatment and medication as a result of his physical and emotional conditions as a result of reprisal discrimination after the Agency reassigned him shortly after he filed a formal EEO complainant). 2020001888 9 The AJ also cited several decisions in support of his non-pecuniary damages award where the complainants had extensive damages but where preexisting conditions and/or non-discriminatory contributing causes where present. See e.g, Mares v. Dep’t. of the Air Force, EEOC Appeal No. 01962897 (Oct. 20, 1998) ($7,000 in non-pecuniary damages after a manager made prejudicial and derogatory statements against the complainant, resulting in the exacerbation of his preexisting emotional conditions of extreme stress necessitating increased medication, heightened depression, and a diagnosis of PTSD. The complainant's stress affected his personal life, making him afraid to leave his home and affected his relationship with his son); Rountree v. Dep’t of Agriculture, EEOC Appeal No. 01941906 (Feb. 15, 1996) (($8,000 in non-pecuniary damages where medical evidence testimony was provided regarding complainant's emotional distress, but the majority of complainant's emotional problems were caused by factors other than the discrimination). The AJ reduced the valuation of damages to the percentage shown to be attributable to discrimination (i.e., $5,885 or 10.7 percent of $55,000).2 We find that the AJ’s non-pecuniary damages award is not arbitrary or capricious and is supported by substantial evidence in the record. See Chara S. v. Dep't of Veterans Affairs, EEOC Appeal No. 2019001100 (July 16, 2020) ($6,000 awarded in non-pecuniary compensatory damages where agency's discrimination resulted in exacerbation of several conditions including severe emotional distress, anxiety, and panic attacks); Complainant v. U.S. Postal Serv., EEOC Appeal No. 0120132114 (May 29, 2015) ($5,000 in nonpecuniary damages awarded where complainant suffered from insomnia, headaches, mood swings, marital issues, and exacerbation of physical symptoms). Attorney’s Fees and Costs Attorney's fees shall be paid for services performed by an attorney after the filing of a written complaint. 29 C.F.R. § 1614.501(e). An award of attorney's fees is determined by calculating the lodestar, i.e., by multiplying a reasonable hourly fee times a reasonable number of hours expended. Hensley v. Eckerhart, 461 U.S. 424 (1983); 29 C.F.R. § 1614.501 (e)(2)(ii)(B). "There is a strong presumption that this amount represents the reasonable fee." Id. A reasonable hourly fee is the prevailing market rate in the relevant community. Blum v. Stenson, 465 U.S. 886 (1984). A petition for fees and costs must take the form of the verified statement required by the Commission's regulations at 29 C.F.R. § 1614.501(e)(2)(i). 2 The Commission has recognized that where harm can be attributed to both discriminatory conduct and nondiscriminatory conduct, damages must be limited only to the portion of harm that is attributable to discriminatory conduct. See, e.g., St. John v. U.S. Postal Serv., EEOC Appeal No. 01996706 (Jan. 29, 2002); Jones v. Dep't of Commerce, EEOC Appeal No. 0IA13671 (May 2, 2002). 2020001888 10 Complainant has the burden of providing, by specific evidence, entitlement to the requested fees and costs. Koren v. U.S. Postal Serv., EEOC Request No. 05A20843 (Feb. 18, 2003). Complainant also has the burden of identifying the subject matters on which his attorney (A1) spent her time by submitting sufficiently detailed and contemporaneous time records to ensure that the time spent was accurately recorded. Spencer v. Dep't of the Treasury, EEOC Appeal No. 07A10035 (May 6, 2003); Hensley, 461 U.S. at 433 (1983) (the court may exclude unnecessary hours or hours that lack proper documentation); Case v. Unified School Dist. No. 233., 157 F.3d 1243 (10th Cir. 1998) (inadequate and imprecise documentation of the time spent may also justify a reduction in attorneys’ fees). The hours claimed or spent on a case are "the most useful starting point for determining the amount of a reasonable fee." Hensley, supra. Counsel must exercise "billing judgment in determining the hours reasonably expended." Id. The fee petition must "contain sufficiently detailed information regarding the hours logged and the work performed" to permit the determination of the correct award. Concerned Veterans v. SecretarJ' of Defense, 675 F.2d 1319 (D.C. Cir. 1982). 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.” Bernard v. Dep't of Veterans Affairs, EEOC Appeal No. 01966861 (July 17, 1998). However, the attorney does have the burden of identifying the subject matters on which she spent her time by submitting sufficiently detailed and contemporaneous time records to ensure that the time spent was accurately recorded. Id. Miller v. U.S. Postal Serv., EEOC Request No. 05A40871 (June 29, 2006). The reasonable hourly rate is the prevailing market rate in the relevant legal community for similar services by lawyers or reasonably comparable skills, experience, and reputation. Blum, supra. The burden is on the fee applicant to produce satisfactory evidence, in addition to the attorney's own affidavit, that the requested rates meet this standard. In rare cases, the presumptively reasonable lodestar may be adjusted upwards or downwards based on the factors set out in Johnson v. Georgia Highway Express, Inc., 488 F.2d 714 (5th Cir. 1974), and Kerr v. Screen Extras Guild, Inc., 526 F.2d 67 (9th Cir. 1975). These factors include (1) the time and labor required; (2) the novelty and difficulty of the questions involved; (3) the skill requisite to perform the legal services properly; (4) the preclusion of other employment by an attorney due to acceptance of the case; (5) the customary fee; (6) whether the fee is fixed or contingent; (7) time limitations imposed by a client or the circumstances; (8) the amount in question and results obtained; (9) the experience, reputation, and ability of the attorneys; (10) the "undesirability" of the case; (11) the nature and length of the professional relationship with the client; and (12) awards in similar cases. Gates v. Deukmejian, 987 F.2d 1392 (9th Cir. 1992). The AJ found the supporting documentation submitted by Complainant sufficient to establish a reasonable hourly rate of $475 per hour for the legal services rendered by A1. The AJ also found that Complainant failed to identify factors or circumstances that would warrant an enhanced award. 2020001888 11 The AJ reduced excessive hours attributed to some of the tasks. For example, the AJ concluded that anything more than 80 hours assigned to the task of drafting of Complainant's proposed findings of facts and conclusions of law (as opposed to the requested 152.3 hours) was unreasonable.3 In addition, the AJ reduced A1’s claim of 50.5 hours for travel time by 50 percent. See Johnson v. U.S. Postal Serv., EEOC Appeal No. 0120054278 (Mar. 20, 2007); Santiago v. Dep’t of Homeland Sec., EEOC Appeal No. 0720100038 (Mar. 2, 2011). The AJ also reduced the hours claimed for drafting A1’s declaration in support of the Fee Petition from 3.1 to .5 hours since the declaration consists of five paragraphs covering a little more than one page and approximately 61 pages of billing records (i.e., a purely clerical task). Weaver v. U.S. Postal Serv., EEOC Appeal No. 0120130748 (May 1, 2013); Johnson v. U.S. Postal Ser’v., EEOC Appeal No. 0120054278 (Mar. 20, 2007) (clerical tasks are not recoverable). After excluding 379.9 hours for reasons described above, the AJ evaluated what portion of the remaining hours (527.4) were attributable to the successful claims. The AJ noted the following in his decision. The Order issued on April 13, 2017, identified the three successful claims. The Order also stated that if Complainant contended [that] he should be awarded attorney's fees for any of the unsuccessful claims, Complainant was directed to cite argument and case law that supported this contention. The Order specifically notified Complainant that if he failed to cite such argument or binding precedent, I would deem such failure as an admission by Complainant that the three successful claims were distinct in all respects from each of the 25 unsuccessful claims. Complainant's Petition specifically and deliberately declined to cite any argument or case law that addressed this issue. Complainant has therefore admitted that his successful claims are distinct in all respects from the unsuccessful claims. Despite Complainant's admission that his unsuccessful claims were distinct in all respects from the successful claims, I find that Claim 4, regarding denial of compensatory time, was sufficiently related to claims 5 and 6. I further find that Claim 14, regarding Complainant's 2008 performance appraisal, was sufficiently related to Claims 7, 8, 15, and 16. None of the remaining claims bore any relation to Claim 20. I therefore find that Complainant is entitled to attorney's fees reasonably incurred in the prosecution of Claims 4, 5, 6, 7, 8, 14, 15, 16, and 20. The AJ also considered the time A1 spent on each witness and concluded that a review of the transcript revealed that A1’s questioning of all the witnesses (on direct, cross, or redirect) covered approximately 1,240 pages. 3 The AJ noted that this figure did not include hours attributed to legal research or review of the hearing transcript. 2020001888 12 The AJ found 139 pages out of 1,240 reflected questioning related to the successful/related claims (i.e., 11.2 percent). Accordingly, the AJ concluded that the remaining portion of hours claimed by A1 should be reduced to 11.2 percent (i.e., 59.1). Accordingly, the AJ concluded that Complainant was entitled to an award of reasonable attorney's fees for services provided by A1 in the amount of $28,073. Pursuant to 29 C.F.R. § 1614.501 (e)(2)(ii)(C), Complainant is entitled to recovery of costs authorized by 28 U.S.C. § 1920, which includes witness fees; transcript costs; and printing and copying costs. EEO MD-110, Ch. 11, Sec. V(A). In addition, reasonable out-of-pocket expenses may include all costs incurred by the attorney that are normally charged to a fee-paying client in the normal course of providing representation. Id.; Hafiz v. Dep 't of Def., EEOC Petition No. 04960021 (July 11, 1997). These costs may include such items as mileage, postage, telephone calls, and photocopying. Complainant submitted an itemization, with supporting documentation, of costs totaling $5,450.91 for depositions, $100.58 for postage, and $85.50 for attorney delivery services, totaling $5,636.99. The AJ concluded that only depositions that were reasonably necessary for the prosecution of any of the successful or related claims would be reimbursable. Specifically, the AJ concluded that the depositions of Complainant, S1 and SS1 were related to the successful or related claims. The AJ concluded that Complainant is entitled to full reimbursement of the cost of his transcript ($620). However, the AJ reduced the reimbursement of S1 and SS1 by 11.2 percent ($87.61) to exclude questioning related to the unsuccessful/unrelated claims. Accordingly, the AJ concluded that Complainant was entitled to a total of $707.61 for the costs of the depositions. The AJ also reduced the other costs by 11.2 percent, which resulted in a total of $728.45 in reimbursed costs. We find that the AJ’s reduction of attorney’s fees and costs to be supported by substantial evidence in the record. Complainant was substantially unsuccessful, prevailing on only 3 of his 28 claims, one of which was solely due to a sanction order. The AJ determined that Complainant was successful on 10.7 percent of his claims which did not even account for Complainant’s failure to prove his reprisal or harassment claims.4 Accordingly, the Commission finds no basis to disturb the AJ’s award of attorney’s fees and costs in the amount of $28,073 and $728.45 respectively. CONCLUSION Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we AFFIRM the Agency's final order and direct it to implement the order for relief as slightly modified below. 4 We note that during the relevant time-period, A1 represented Complainant in several other EEO complaints separate from this matter, raising the possibility that a portion of A1’s fee petition covered time spent on matters unrelated to the claims at issue herein. 2020001888 13 ORDER To the extent it has not already done so, the Agency shall take the following remedial actions: 1. Within 60 days of the date this decision is issued, the Agency shall pay Complainant pecuniary compensatory damages in the amount of $77.57. 2. Within 60 days of the date this decision is issued, the Agency shall pay Complainant non-pecuniary compensatory damages in the amount of $5,885. 3. Within 60 days of the date this decision is issued, the Agency shall pay reasonable attorney's fees in the amount of $28,073, and reasonable costs in the amount of $728.45. 4. Within 60 days of the date this decision is issued, the Agency shall expunge from Complainant's personnel folder that is maintained within the Agency's San Diego Healthcare System facility and from all other Agency files and records the portion of Complainant's Performance Appraisal for Fiscal Year 2008 with the handwritten notation that states, "[H]e tends to lose paper or say it was 'sabotaged.” 5. Within 90 calendar days from the date that this decision is issued, the Agency shall provide at least eight hours of in-person or interactive EEO training to the management official identified as Complainant’s supervisor. The training shall have a special emphasis on management’s responsibilities with respect to Title VII and the ADEA. 6. Within 60 days of the date this decision is issued, the Agency shall consider taking disciplinary action against the management official identified as Complainant’s supervisor. The Commission does not consider training to be disciplinary action. The Agency shall report its decision to the Compliance Officer. 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 employ, the Agency shall furnish documentation of their departure date(s). The Agency is further directed to submit a report of compliance in digital format as provided in the statement entitled “Implementation of the Commission's Decision.” The report shall be submitted via the Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). Further, the report must include supporting documentation that the Agency's remedies and corrective action have been implemented. 2020001888 14 POSTING ORDER (G0617) The Agency is ordered to post at the San Diego Healthcare System located in San Diego, California, 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 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). 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. 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. 2020001888 15 STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0920) The Commission may, in its discretion, reconsider this appellate decision if Complainant or the Agency submits a written request that contains arguments or evidence that 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 for reconsideration must be filed with EEOC’s Office of Federal Operations (OFO) within thirty (30) calendar days of receipt of this decision. If the party requesting reconsideration elects to file a statement or brief in support of the request, that statement or brief must be filed together with the request for reconsideration. A party shall have twenty (20) calendar days from receipt of another party’s request for reconsideration within which to submit a brief or statement in opposition. 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). Complainant should submit his or her request for reconsideration, and any statement or brief in support of his or her request, via the EEOC Public Portal, which can be found at https://publicportal.eeoc.gov/Portal/Login.aspx. Alternatively, Complainant can submit his or her request and arguments to the Director, Office of Federal Operations, Equal Employment Opportunity Commission, via regular mail addressed to P.O. Box 77960, Washington, DC 20013, or by certified mail addressed to 131 M Street, NE, Washington, DC 20507. In the absence of a legible postmark, a complainant’s request to reconsider shall be deemed timely filed if OFO receives it by mail within five days of the expiration of the applicable filing period. See 29 C.F.R. § 1614.604. An agency’s request for reconsideration must be submitted in digital format via the EEOC’s Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). Either party’s request and/or statement or brief in opposition must also include proof of service on the other party, unless Complainant files his or her request via the EEOC Public Portal, in which case no proof of service is required. Failure to file within the 30-day time period will result in dismissal of the party’s request for reconsideration as untimely, unless extenuating circumstances prevented the timely filing of the request. Any supporting documentation must be submitted together with the 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 (R0610) This is a decision requiring the Agency to continue its administrative processing of your complaint. 2020001888 16 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 (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 August 19, 2021 Date