U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Sona B.,1 Complainant, v. Alejandro N. Mayorkas, Secretary, Department of Homeland Security (Transportation Security Administration), Agency. Appeal No. 2021000656 Hearing Nos. 541-2013-00028X; 541-2014-00019X; 541-2014-00149X; 541-2015-00128X; and 541-2016-00146X Agency No. HS-TSA-21627-2012; HS-TSA-00637-2013; HS-TSA-00033-2014; HS-TSA-01188-2014; and HS-TSA-23430-2015 DECISION Following its November 2, 2020 final order, the Agency filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) pursuant to 29 C.F.R. § 1614.403(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 Title VII of the Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. § 2000e et seq., Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq., and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq. The Agency also requests that the Commission affirm its rejection of the relief ordered by the AJ. The Commission accepts the appeal in accordance with 29 C.F.R. § 1614.405. BACKGROUND For over thirty years, Complainant has been an Agency employee. In July 2005, she was promoted to the position of Assistant Federal Security Director-Inspections (AFSD-I) at the Denver International Airport in Colorado. 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. 2021000656 2 Complainant was a member of the senior-level management team. As AFSD-I, Complainant served as the principal advisor to the Federal Security Director on all matters concerning enforcement and compliance with security directives, laws, and regulations relating to transportation security. From 2009 through March 2010, Complainant took a medical leave of absence from work, due to her own breast cancer diagnosis, as well as the cancer diagnosis of her young daughter. Complainant’s daughter died from leukemia in February 2010. Two weeks later, on March 15, 2010, Complainant returned to work. On the same day, March 15, 2010, Agency management prepared a memorandum of counseling criticizing Complainant’s performance since 2008 and cautioning Complainant that she could be placed on a Performance Improvement Plan (PIP). In the months to follow, Complainant was placed on a PIP, issued discipline, and demoted2 from AFSD-I to Supervisor Transportation Security Inspection (STSI). Believing that Agency officials subjected her to discriminatory harassment and disparate treatment, Complainant filed a series of formal EEO complaints based on age (y.o.b. 1959), disability (depression and association with a disabled person), sex (female), and in reprisal for prior protected EEO activity. Agency Case No. HS-TSA-21627-20123 a. On or about March 15, 2010, Complainant’s time for leave and subsequent assistance from a former Acting AFSD-I were reduced without prior notification, contrary to previous agreements. b. On or about December 2010, Complainant was chastised for taking approved leave. c. On or about February 2011, management alleged Complainant abused authority to authorize compensatory time. 2 On October 5, 2012, Complainant appealed the demotion to the Merit Systems Protection Board (MSPB) (Docket # DE-0752-13-0015-I-1). In a March 2014 Initial Decision, the MSPB reversed the Agency’s action, finding that the Agency did not meet its burden in showing that Complainant’s performance was unacceptable in her core competencies of decision-making, communication, and supervisory skills. The MSPB, however, did not find that the Agency’s actions were discriminatory. On April 21, 2015, the MSPB issued a Final Order affirming the initial decision. Complainant appealed the decision to the EEOC. The Commission concurred with the MSPB’s finding no discrimination regarding the reduction in pay band and pay. See EEOC Petition 0320150065 (Feb. 23, 2016). 3 Thereafter, the case was also assigned EEOC Hearing No. 541-2013-00028X. 2021000656 3 d. On June 30, 2011, the Deputy Federal Security Director (DFSD4) placed Complainant on a 90-day Performance Improvement Plan and was later told she did not pass, despite feedback to the contrary. e. On or about October 2011, Complainant received numerous derogatory and inaccurate emails from the DFSD and the Federal Security Director (FSD)5. f. On January 3, 2012, Complainant received a notice of Proposed Demotion. g. On January 3, 2012, the DFSD changed Complainant work hours, without prior notification. h. On April 4, 2012, the FSD told Complainant to consider his emails as counseling. i. On April 4, 2012, the FSD assigned Complainant an unattainable task, chastised her work, and copied the email to a TSA attorney. j. During January 2012, Complainant received numerous scathing and accusatory emails, including instructions to no longer refer to the FSD “in the familiar”. k. On June 19, 2012, the FSD denied a request from TSA headquarters specifically requesting Complainant for a 90-day detail. l. On an unspecified date, despite a promise for assistance, management did not allow the acting AFSD-I to stay and work the unit Complainant supervised. m. On unspecified dates, the FSD and Deputy FSD undermined Complainant’s authority by bypassing her and coordinated actions in her unit directly with the Complainant’s subordinates. n. On or about November 2011, Complainant received inadequate staffing support and management accused her of leaving work undone before taking annual leave. Agency Case No. HS-TSA-00637-2013 1. On January 4, 2013, Complainant was not selected for the AFSD-I position (Vacancy Announcement No. DED-12555408). 2. On January 29, 2013, management issued her a Letter of Reprimand. 4 Hereinafter “DFSD-N”, who was in the position from May 2011 through 2021. 5 Hereinafter “FSD-S”, who was in the position from May 2011 through March 2013. He was Complainant’s second-line supervisor, until her demotion in September 2012. 2021000656 4 Agency Case No. HS-TSA-00033-20146 1. On May 14, 2013, management issued Complainant a Letter of Counseling. 2. On July 8, 2013, management issued Complainant a Letter of Guidance and Direction. 3. On August 23, 2013, management issued Complainant a Letter of Reprimand. Agency Case No. HS-TSA-001188-20147 On March 6, 2014, the Deputy FSD issued Complainant a Notice of Suspension. Agency Case No. HS-TSA-23430-20158 On February 18, 2015, Complainant received notice of her non-selection for an AFSD position (unknown vacancy announcement number). Following investigations, Complainant requested hearings before an Equal Employment Opportunity Commission Administrative Judge (AJ). The AJ consolidated the cases for discovery and a hearing was held October 22 - 25, 2018, where ten witnesses testified. On September 30, 2020, the AJ issued a decision finding Complainant was subjected to harassment and disparate treatment as alleged. After considering the Agency’s proffered legitimate reasons, the AJ concluded that the Agency’s actions were instead motivated by the fact that Complainant was a woman over the age of forty. Specifically, the AJ was unpersuaded by the Agency’s argument that DFSD-N had previously hired female employees, noting that one of these hires only followed the filing of EEO complaints by the individual, and the other testified that she was hired by a panel, not DFSD-N, and did not speak with DFSD-N until after she was brought on. The AJ found FSD-S’s email to be “outrageous” and clearly based on sex. The reasons provided by the Agency for its actions were “weak and contradictory” in the AJ’s view. For example, regarding Complainant’s allegedly poor performance, the AJ believed that instead she must have been a good worker if the events highlighted by the Agency were all they could find to criticize (i.e. that she did not respond to an alarm call because she was told not to and she allowed K-9 employees compensatory time to train dogs and perform computer work). Moreover, the AJ noted the Agency’s “repeated failure to follow its own procedures”. 6 EEOC Hearing No. 541-2014-00149X . 7 EEOC Hearing No. 541-2015-00128X. 8 EEOC Hearing No. 541-2016-00146X. 2021000656 5 In particular, the Agency did not use progressive discipline, provide an end date for the PIP, give written notice of the extension of the PIP, or resolve the proposed suspension within twenty-one days. The “dishonesty of Agency witnesses” also supported the AJ’s finding of pretext. The AJ noted DFSD-N, in particular, stood out as lacking credibility. As for the basis of disability, the AJ concluded that Complainant was subjected to harassment because of her earlier use of medical leave. After learning from her EEO complaint that Complainant has depression, the Agency tried to obtain fitness-for-duty reviews or revoke her security clearances without ever discussing her condition with her. With respect to reprisal, the AJ observed a strong nexus between Agency actions and Complainant’s prior EEO activity. For example, Complainant was issued a suspension immediately following her favorable MSPB decision, wherein she had alleged her demotion was discriminatory. In another instance, the AJ found that the Agency shared Complainant’s EEO complaint, concerning her prior AFSD position, with the individual who was placed in that position and now her supervisor. DFSD-N, and FSD-S’s efforts to revoke Complainant’s security clearance, after learning of her depression, also “reflects a retaliatory motive.”. In terms of remedies, the AJ determined that Complainant was entitled to $300,000 in non- pecuniary compensatory damages and $228,089.84 in attorney’s fees and costs. Additionally, Complainant was granted back pay for the Seven-Day Suspension issued in 2014 and Complainant’s counsel was awarded $72.63 as a sanction9 for the Agency’s discovery abuse. Subsequently, on November 2, 2020, the Agency issued a final order rejecting the AJ’s finding of discrimination and the award of remedies. The Agency asserted that the AJ erred in “failing to give full preclusive effect to the Commission’s concurrence with the MSPB’s decision” regarding Complainant’s March 2012 demotion and “any other intertwined issues”. Although the AJ did not provide a remedy regarding the demotion, the Agency stated that it was “nonetheless required to defend the issue, which tainted its defense of other allegations and unnecessarily increased the amount of attorney’s fees. . . .” As for the award of non-pecuniary compensatory damages, the Agency found them to be “monstrously excessive.” The instant Agency appeal to the Commission followed. 9 Complainant incurred such charges following the Agency Counsel’s unpermitted use of the conference room of Complainant’s counsel, and placement of long-distance phone calls. 2021000656 6 ANALYSIS AND FINDINGS 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. 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). Res Judicata On appeal, the Agency argues that the AJ should not have considered Complainant’s placement on a PIP, and the underlying performance deficiencies, which resulted in her later demotion because these matters were the subject of a MSPB final decision and Office of Federal Operations (OFO) appeal. According to the Agency, Complainant raised discrimination, and even cited the same comparators, in her MSPB case. The Agency argues that the AJ erred in analyzing the same facts and witnesses which were presented to the MSPB. Complainant, in the Agency’s view, should not have been permitted to relitigate actions already decided by the MSPB and OFO. The Agency argues such matters are barred by res judicata. The doctrine of res judicata, or claim preclusion, treats a judgment as the full measure of relief to be accorded between the same parties on the same claim, or cause of action, and issues relevant to that claim. When a judgment is rendered in favor of the agency, a complainant's claim is extinguished, and the judgment then acts as a bar. See Magallanes v. Department of Justice, EEOC Request No. 05900176 (July 13, 1990). The doctrine is embodied in EEOC Regulation 29 C.F.R. 1614.107(a)(1), which an agency to dismiss a complaint that states the same claim that is pending before or has been decided by the Agency or Commission. Despite the Agency’s contentions, we find that a review of the MSPB proceedings reflect that the sole matter before it was Complainant’s demotion. In describing Complainant’s appeal, the MSPB AJ stated that Complainant, an AFSD-I, appealed the “Agency’s action that reduced her pay band (from K to J) and rate of pay to the excepted service position of Supervisory Transportation Security Inspector, effective September 9, 2012.” There is no evidence that the MSPB AJ expressly assumed jurisdiction over any other claim. 2021000656 7 Moreover, neither a PIP nor harassment is an agency action over which the MSPB typically has jurisdiction. See 5 U.S.C. 7511 et seq.; 5 C.F.R. 1201.3; Thomas v. Department of the Army, EEOC Appeal No. 0120082616 (November 10, 2008). We also decline to find that the MSPB implicitly assumed jurisdiction over Complainant’s placement on a PIP or her broader claim of harassment. The Commission “long ago abandoned the practice of non-appealable claims being found to be ‘inextricably intertwined’ with appealable claims.” See Jillian B., Complainant, EEOC Appeal No. 0120170532 (April 30, 2019). In addressing the issue of Complainant’s demotion, the MSPB AJ did discuss the substance of the PIP. The MSPB AJ also made reference to comparators and incidents with management officials, in assessing whether the demotion was discriminatory. However, we are not persuaded that the claims comprising the EEO complaints before us, particularly Complainant’s placement on a PIP, was fully adjudicated by the MSPB AJ. Therefore, we do not find that the AJ was barred, by res judicata, from considering the PIP. EEOC AJ’s Credibility Determinations and Findings of Discrimination In general, the Commission will not disturb the credibility determinations of an AJ. However, while the Commission has consistently held that credibility determinations require more deference than other findings of fact, see Universal Camera Corp. v. NLRB, 340 U.S. 474, 496 (1951), it has also stressed that such deference is not automatic and will be deferred to only to the extent that it is based on the AJ's personal observation of the demeanor and conduct of the witness at the hearing, rather than the inherent logic or consistency of the testimony. Watkins v. United States Postal Service, EEOC Request No. 05910636 (September 19, 1991). Deference will not be given where an evidentiary showing is made that the credibility determination is erroneous, not based on testimonial inferences, or not supported by the record. Id.; Gathers v. United States Postal Service, EEOC Request No. 05890894 (November 9, 1989). On appeal, the Agency argues that in concluding that the new AFSD-I10 was not credible the AJ simply “misunderstood” his testimony regarding Complainant’s purported failure to meet with a trucking company. Rather than being unable to remember the incident, the Agency contends that AFSDI-P testified “at length” about the trucking company situation and instead could not recall whether Complainant “intentionally” failed to set up the meeting. A review of the AJ’s decision, however, reflects that her credibility determination went well beyond the instance described by the Agency. As background, the AJ noted that AFSDI-P was placed in the vacancy created by Complainant’s demotion and became her first-line supervisor. 10 Hereafter “AFSDI-P” was placed in the vacancy created by Complainant’s demotion. He obtained the position through PPP, following the vacancy announcement posted in September 2012 to which Complainant also applied. He held the position from February 2013 through late 2014 and was Complainant’s first-line supervisor during her time as a STSI. 2021000656 8 Prior to even beginning the job, FSD-S informed AFSDI-P that Complainant had filed an EEO complaint regarding his selection as AFSD-I. Just two weeks before the MSPB hearing, AFSDI- P issued Complainant a Letter of Counseling referencing typographical errors she had made, as well as her MSPB case and EEO complaints. At the hearing, the AJ noted that AFSDI-P “could not recall a single act by Complainant that rose to the level of ‘misconduct’.” Moreover, the AJ observed that AFSDI-P “astutely refused to testify to recalling anything without checking a document first” observed the AJ. Therefore, we find that the AJ provided sufficiently specific reasons for her credibility determination. The Agency also attempts to challenge the AJ’s belief that DFSD-N too lacked credibility. Since June 2011, after approximately three months performing the position in an “acting” capacity, DFSD-N was the Deputy Director. Citing only testimony addressing a change in Complainant’s duty station and hours, the Agency argues that “closer scrutiny” reveals that DFSD-N’s answers were consistent. The Agency contends that any perceived inconsistency simply reflected responses to different questions. The AJ’s decision, however, is replete with examples supporting her determination that DFSD-N was an untrustworthy witness. In one instance, the AJ noted that although DFSD-N testified that he informed Complainant in writing that she failed some elements, no such document was in the record. Further, the AJ remarked that if Complainant had indeed failed in her PIP it would have been unreasonable and unsafe to leave her in the position. Similarly, DFSD-N asserted that the PIP was extended, but failed to provide any documents to that effect. The AJ’s decision also noted that DFSD-N’s testimony claiming he had previously hired women, in an effort to show he did not discriminate based on sex, was plainly contradicted by one of the individuals he named. That female employee testified that she had never even spoken to DFSD-N until after being offered the position. When DFSD-N “tried to pass off that he put [a male employee] on a PIP”, the AJ found that the action was taken by a female management official and DFSD-N merely monitored the male employee. As for the AJ’s ultimate finding of discrimination, the Agency contends that the decision is not supported by substantial evidence and that she failed to “properly analyze” its proffered non- discriminatory reasons. In support of this contention, the Agency simply reiterates the previously rejected explanations. Additionally, the Agency references a settlement agreement resolving EEOC Hearing No. 541-2010-00068X, to argue that the AJ improperly considered harassment claims which allegedly occurred through the effective date of the agreement. A review of the provided agreement reveals that the settlement agreement resolved an earlier complaint regarding leave, assignments, and use of a laptop. Moreover, even a cursory view of the issues before us reflect that they transpired after the settlement was entered on May 10, 2010. Therefore, we find that the AJ’s finding, that Complainant was subjected to unlawful discrimination as alleged, was proper and is supported by substantial evidence. Next we turn to the AJ’s award of remedies. 2021000656 9 Compensatory Damages When discrimination is found, the agency must provide the complainant with a remedy that constitutes full, make-whole relief to restore her as nearly as possible to the position she would have occupied absent the discrimination. See, e.g., Franks v. Bowman Transp. Co., 424 U.S. 747, 764 (1976); Albemarle Paper Co. v. Moody, 422 U.S. 405, 418-19 (1975); Adesanya v. U.S. Postal Serv., EEOC Appeal No. 01933395 (July 21, 1994). Pursuant to section 102(a) of the Civil Rights Act of 1991, a complainant who establishes unlawful intentional discrimination under either Title VII of the Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. § 2000e et seq. or Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq. may receive 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) as part of this "make whole" relief. 42 U.S.C. § 1981a(b)(3). In West v. Gibson, 527 U.S. 212 (1999), the Supreme Court held that Congress afforded the Commission the authority to award compensatory damages in the administrative process. For an employer with more than 500 employees, such as the agency, the limit of liability for future pecuniary and non-pecuniary damages is $300,000. 42 U.S.C. § 1981a(b)(3) To receive an award of compensatory damages, a complainant must demonstrate that he or she has been harmed as a result of the agency’s discriminatory action; the extent, nature, and severity of the harm; and the duration or expected duration of the harm. Rivera v. Dep’t of the Navy, EEOC Appeal No. 01934157 (July 22, 1994), req. for reconsideration denied, EEOC Request No. 05940927 (Dec. 11, 1995); Compensatory and Punitive Damages Available Under Section 102 of the Civil Rights Act of 1991, EEOC Notice No. 915.002 (July 14, 1992), at 11-12, 14. In determining damages, the Commission also applies the principle that “a tortfeasor takes its victims as it finds them.” Wallis v. United States Postal Service, EEOC Appeal No. 01950510 (November 13, 1995) (quoting Williamson v. Handy Button Machine Co., 817 F.2d 1290, 1295 (7th Cir. 1987). But, where a complainant has a preexisting condition, the Agency is only liable for the additional harm or aggravation caused by the discrimination. See Wallis v. United States Postal Service, EEOC Appeal No. 01950510. 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. EEOC Notice No. 915.002 at 8. Objective evidence of compensatory damages can include statements from the complainant concerning his or her emotional pain or suffering, inconvenience, mental anguish, loss of enjoyment of life, injury to professional standing, injury to character or reputation, injury to credit standing, loss of health, and any other nonpecuniary losses that are incurred as a result of the discriminatory conduct. Statements from others, including family members, friends, health care providers, other counselors (including clergy) could address the outward manifestations or physical consequences of emotional distress, including sleeplessness, anxiety, stress, depression, marital strain, humiliation, emotional distress, loss of self-esteem, excessive fatigue, or a nervous breakdown. See Lawrence v. U.S. Postal Serv., EEOC Appeal No. 01952288 (Apr. 18, 1996), citing Carle v. Dep’t of the Navy, EEOC Appeal No. 01922369 (Jan. 5, 1993). 2021000656 10 Evidence from a health care provider or other expert is not a mandatory prerequisite for recovery of compensatory damages for emotional harm. A complainant's own testimony, along with the circumstances of a particular case, can suffice to sustain his or her burden in this regard. The more inherently degrading or humiliating the defendant's action is, the more reasonable it is to infer that a person would suffer humiliation or distress from that action. The absence of supporting evidence, however, may affect the amount of damages appropriate in specific cases. Lawrence, EEOC Appeal No. 01952288. On appeal, Complainant argues that the AJ’s decision included sufficient justification for the award of $300,000 in non-pecuniary compensatory damages. Complainant reiterated the AJ’s finding in Complainant’s favor on all claims and the AJ’s conclusion that Complainant’s all- male team of supervisors made her life nearly intolerable for five years. Three different managers issued five discriminatory disciplinary actions against her. Management was found to have discriminatorily challenged her security clearance and fitness for duty on multiple occasions. Complainant asserts that the five years of a hostile work environment, and it’s lingering effects, harmed Complainant. However, we observe that Complainant’s appeal brief focuses on the Agency’s actions rather than the resulting harms or losses suffered by Complainant. As previously noted, particularly humiliating or degrading Agency actions can lead to a reasonable inference that distress was experienced by the employee. In this case, Complainant was a successful, female, high-level manager who returned to work, following her own health problems, and the death of her young child, to be subjected to ongoing unlawful discrimination. She was placed on a PIP without a clear ending, moved to a basement office, given a change in tour of duty, asked to provide medical documentation to prove she could perform her lower-graded job, and subjected to harassment by the individual placed in her AFSD-I position. She was issued discipline from her new supervisor just two weeks before her MSPB hearing and, one day after the MSPB revoked her demotion and she was suspended for seven days. This disciplinary action was then used to exclude her from consideration for her former position after AFSDI-P left. We agree that these repeated and public adverse actions lead to a reasonable inference that Complainant suffered humiliation and emotional distress. While not highlighted in the appeal brief, the hearing transcript does include testimony by Complainant’s spouse. He described Complainant, before the discrimination, as “enthusiastic” about her career. It was an “important part of her life” and “she put everything into it”. Consequently, she continued to advance and was “highly regarded”. However, when she returned to work after her extended absence, Complainant’s spouse testified, she would come home exasperated and frustrated. Complainant became short-tempered. While rarely one to cry, she then would cry “from time to time.” Complainant, previously one to easily fall asleep, would wake in the middle of the night and be unable to return to sleep. Complainant’s husband explained that the workplace stress impacted her emotional health, which also caused Complainant to worry this would, in turn, also affect her physical health. 2021000656 11 Complainant’s own testimony echoed these sentiments. She noted that “…other than these five years of harassment I have an exemplary career with the government, and my career has meant a lot to me.” Complainant explained that the harassment at work “bled into [my] personal life . . . [my] husband got to the point he didn’t want to hear about it anymore.” She began smoking again, only at work, in order to calm herself down. Complainant noted that, at the time of the hearing in 2018, she was still in counseling and on medication for depression. Additionally, she expressed her intention to retire soon. The AJ based her award on the testimony from Complainant and her husband, as well as the five- year span of the harm. We agree that the record contains substantial evidence to support a significant award. However, while the AJ awarded the maximum amount of non-pecuniary compensatory damages that are available, we find that an award of $200,000 is more appropriate. This modified award recognizes the existence of Complainant’s pre-existing condition (depression) and the impact of other sources on her emotional distress (i.e. the recent loss of her young child), and is consistent with prior Commission cases where an Agency’s discrimination caused similar harm. See Alene S. v. United States Postal Service, EEOC Appeal No. 0720150038 (April 6, 2016) (Commission reduced AJ award to better reflect existing conditions of PTSD and depression, but also compensate aggravation of such conditions and headaches, sleeplessness, and hives); McCormick v. Dep’t of Justice, EEOC Appeal 0720100040 (Nov. 23, 2011) (Commission upheld AJ award of $200,000 non-pecuniary damages resulting in severe physical damages and pain to Complainant’s neck and shoulders, harm to professional reputation, migraines, sleep disruptions, and strain on familial relationships); Tyner v. Dep’t of Veterans Affairs, EEOC Appeal No. 0720060032 (October 23, 2007) (AJ award of $150,000 in non-pecuniary compensatory damages upheld by Commission based on testimony by Complainant, psychologist, and Complainant’s father. Complainant was particularly vulnerable to inappropriate sexual behavior due to witnessing sexual abuse as a young person. Agency’s actions caused Complainant sleeplessness, problems with her appetite, tearfulness, and PTSD).11 Attorney’s Fees By federal regulation, the 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). 11 We find Complainant’s reliance on Munno v. Dep’t of Agriculture, EEOC Appeal No. 01A01734 (Feb. 8, 2001) to be unpersuasive in seeking to maintain the AJ’s maximum non- pecuniary damages award. The only similarity cited is that both Complainant and Munno were high-ranking, female managers. While the Commission found that Munno’s non-selection was discriminatory, the appeal did not address non-pecuniary compensatory damages nor describe the factors considered in awarding $250,000. On appeal, Complainant also cites Glockner v. Dep’t of Veterans Affairs, EEOC Appeal 07A30105 (Sept. 23, 2004) where the complainant was continually harassed and degraded for approximately five years. Unlike the instant case, the record in Glockner was devoid of evidence of problems outside the Agency’s hostile work environment which contributed to Complainant’s resulting migraines, kidney stones, and irritational fibroma that required surgery. 2021000656 12 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). There is a strong presumption that the number of hours reasonably expended multiplied by a reasonable hourly rate, the lodestar, represents a reasonable fee, but this amount may be reduced or increased in consideration of the degree of success, quality of representation, and long delay caused by the agency. 29 C.F.R. § 1614.501(e)(2)(ii)(B). The circumstances under which the lodestar may be adjusted are extremely limited, and are set forth in EEOC Management Directive 29 C.F.R. § 1614 (EEO MD-110), Chap. 11 § VI.F. (Aug. 5, 2015). A fee award may be reduced: in cases of limited success; where the quality of representation was poor; the attorney's conduct resulted in undue delay or obstruction of the process; or where settlement likely could have been reached much earlier, but for the attorney's conduct. Id. The party seeking to adjust the lodestar, either up or down, has the burden of justifying the deviation. Id. Hourly Rate The reasonable hourly rate is generally determined by the prevailing market rate in the relevant legal community for similar services by lawyers of reasonably comparable skill, experience and reputation. Blum, 465 U.S. at 895. We note that the Commission and courts generally use the Laffey Matrix to determine the hourly rate for Washington, D.C. area attorneys. The Laffey matrix, which has its origins in the case of Laffey v. Northwest Airlines Inc., 572 F. Supp. 354 (D.D.C. 1983), reversed in part on other grounds, 746 F.2d 4 (D.C. Cir. 1984), is a chart compiled yearly by the United States Attorney's Office in the District of Columbia. It provides a schedule of hourly rates prevailing in the Washington, D.C., area in each year, going back to 1981, for attorneys at various levels of experience. Piper v. U.S. Dep't of Justice, 339 F. Supp. 2d 13, 24 n. 8 (D.D.C. 2004). Here, in applying an hourly rate of $400, the AJ rejected the Agency’s argument that the rate was limited by the fee agreements entered by Complainant and her attorneys. The Agency reiterates that argument on appeal, stating that agreements from 2012 through June 30, 2013 established an hourly rate of $350. In May 2013, Complainant agreed to an increase, to $400 per hour, for work performed July 1, 2013 and thereafter. The Agency therefore contends that time expended before July 1, 2013 should be paid $350 per hour and only the work performed after that date is entitled to the $400 hourly rate. In support, the Agency references Hughs v. United States Postal Service, EEOC Request No. 05950090 (June 7, 1996) wherein the Commission held that the hourly rate for attorney’s fees could not exceed the rate set forth in a fee agreement.12 12 The Agency also relies upon a more recent Commission decision, Stormy M. v. Dep’t of Veterans Affairs, EEOC Appeal No. 0120182473 (May 2, 2019). The instant case, however, is easily distinguishable. In Stormy M. v. Dep’t of Veterans Affairs, Complainant executed a contract for increased fees six days before the fee petition was submitted. The Commission declined to apply the higher rate. See id. 2021000656 13 However, the AJ correctly noted that the Commission has previously found, consistent with federal case law, that delay in payment is properly measured by compensating a complainant's attorney(s) at the current, rather than historical, hourly rates. See Missouri v. Jenkins Agyei, 491 U.S. 274, 283-84 (1989); Rowland v. USDA, EEOC Appeal No. 0120113022 (February 8, 2012), citing Huyck v. Dep't of Defense, EEOC Appeal No. 01952015 (October 31, 1997); Mareno v. Department of Veterans Affairs, EEOC Appeal No. 01943104 (February 14, 1996) (reaffirming position that the proper customary hourly rate is the reasonable hourly rate in effect at the time of the award and not at the time the services are provided). The reasoning supporting this line of cases (i.e. the passage of time, delayed payment) is especially present in the case before us. The discrimination found in this case spans five years and the associated litigation approximately one decade. Further, the Agency does not assert that Complainant’s attorneys have yet received any payment. To apply the current rate, to work performed years earlier and not yet compensated, best represents the “prevailing rate” that a successful Complainant and her attorneys are entitled to. Complainant argues in her cross-appeal that the AJ’s September 30, 2020 decision fails to consider, or even acknowledge, her May 22, 2020 amended fee petition seeking an increase to $450 per hour. Our review of the amended fee petition reflects that the rate increase went into effect in February 2020. Further, the petition includes December 27, 2019 correspondence informing Complainant of the change, wherein the law firm also noted that “…we have not increased our rate in your two matters since 2013.” Additionally, we find that the requested increase is supported by the declarations of three experienced employment law attorneys in the Denver area. They attest to billing clients at a rate of $550 per hour and finding that the rate charged by Complainant’s attorney are below the market rate. Therefore, we find that Complainant’s attorneys are entitled to the prevailing hourly rate of $450. Hours Expended On appeal, in seeking to reduce the attorney’s fees by fifty percent, the Agency reiterates its belief that Complainant was only partially successful. As noted by Complainant, the AJ considered and explicitly rejected this argument. In finding that the work on the claims was not severable, the AJ stated that “there is considerable evidence of discrimination regarding most of the claims” and Complainant was subjected to an ongoing hostile work environment.13 We agree that Complainant’s hostile work environment claim is not fractionable. Further, the parties do not dispute the AJ’s reduction, by 12.93 hours, for pre-complaint and clerical work. While Complainant’s appeal focuses on the hourly rate, she also seeks an additional 5.85 hours for the time expended on the May 22, 2020 amended fee petition. 13 The AJ observed that Complainant did not request fees for work related to the demotion, as this was addressed by the MSPB. 2021000656 14 A review of the amendment, which thoroughly and persuasively refutes the Agency’s arguments regarding the use of current rates and provides more than sufficient evidence for the rate increase, supports an award of the requested additional hours. Therefore, we find that Complainant’s attorneys are entitled to $255,293.93 in fees.14 The AJ’s award of costs ($3,432.34) and reimbursement ($72.63) to Complainant’s attorneys are not challenged by the parties and are upheld. CONCLUSION Based on a thorough review of the record and the contentions on appeal, we REVERSE the Agency’s final order and REMAND the matter to the Agency for further processing in accordance with this decision and the ORDER below. ORDER Within sixty (60) calendar days of the issuance of this decision, to the extent it has not already done so, the Agency shall: (1) tender to Complainant $200,000 in non-pecuniary compensatory damages; (2) tender to Complainant $255,293.93 in attorney’s fees; $3,432.34 in costs; and $72.63 in reimbursement. (3) tender to Complainant backpay for the week she was suspended in 2014;15 (4) Provide a minimum of eight hours of in-person or interactive EEO training, with an emphasis on harassment and reprisal, to the management officials identified in the AJ’s September 30, 2020 decision. (5) Consider taking disciplinary action against DFSD-N and the other responsible management officials still employed by the Agency. If the Agency decides to take disciplinary action, it shall identify it in a compliance report the action taken. If the Agency decides not to take disciplinary action, it shall set forth in its compliance report the reason(s) for not imposing discipline. 14 Complainant initially requested $229,965.80 in fees, based on an hourly rate of $400. Reducing the award by 12.393 hours and using the $400 hourly rate, the AJ granted $224,793.80 in fees. The instant total award reflects an increase to $450 per hour for this same number of hours ($252,661.43) with the addition of 5.85 hours ($2,632.50) for time expended on the amendment fee petition that was not considered by the AJ. 15 This undisputed remedy was included in the original AJ order. 2021000656 15 (6) Post a Notice in accordance with the statement below entitled “Posting Order”. 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). POSTING ORDER (G0617) The Agency is ordered to post at its Denver International Airport 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). 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). 2021000656 16 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. 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. 2021000656 17 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. 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. 2021000656 18 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 July 19, 2021 Date
