[Redacted], Tien E., 1 Complainant,v.Thomas J. Vilsack, Secretary, Department of Agriculture, Agency.

Equal Employment Opportunity Commission

Jul 15, 2021

Appeal No. 2020001343 (E.E.O.C. Jul. 15, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Tien E.,1 Complainant, v. Thomas J. Vilsack, Secretary, Department of Agriculture, Agency. Appeal No. 2020001343 Agency No. RD-2015-00306 DECISION On September 18, 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 August 15, 2019, final decision concerning an 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 Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq. The Commission accepts the appeal in accordance with 29 C.F.R. § 1614.405. BACKGROUND During the relevant time, Complainant worked as an Area Specialist for the Agency’s Rural Development Department in Newnan, Georgia. In December 2013, Complainant informed the Agency that the office building was making her seriously ill and went out on medical leave. Other employees also reported similar symptoms. Complainant requested immediate, fulltime telework. The Agency did not grant Complainant’s request and directed her to return to the building on January 27, 2014. However, on March 5, 2014, the Agency permitted all the staff, including Complainant, to telework fulltime. 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. 2 2020001343 Weeks later, on April 20, 2014, Complainant experienced a near-fatal pulmonary attack which resulted in “organ deficits” including dysfunctional kidneys, cardiac fibrillation, and diabetes, and left her hospitalized until July 29, 2014. Believing that the Agency’s delay in providing her with the reasonable accommodation of telework was discriminatory, based on her disability and sex (female), Complainant filed a formal EEO complaint on April 1, 2015. Following an investigation, the Agency issued a final decision finding no discrimination. Complainant appealed the decision to the Commission, reiterating the assertion that she was denied a reasonable accommodation from December 11, 2013 until March 5, 2014. In the prior decision, the Commission concluded that the Agency failed to act expeditiously and unreasonably delayed providing Complainant with fulltime telework.2 See EEOC Appeal No. 0120161254 (June 21, 2018). Among the remedies granted, the Agency was ordered to conduct a supplemental investigation regarding Complainant’s entitlement to compensatory damages and attorney’s fees and issue a new final decision. The matter was assigned to a Commission compliance officer (Compliance No. 2019000019). In April 2019, the Agency submitted a compliance report to the Commission that only addressed a portion of the remedies ordered, namely, the consideration of disciplinary action and EEO training. Complainant filed a Petition for Enforcement, arguing that the Agency had not restored her leave or investigated and made a decision regarding compensatory damages. The matter was assigned Petition No. 2019005292. The Commission determined that the compensatory damages matter was no longer outstanding because the Agency issued a final decision on compensatory damages and attorney’s fees on August 15, 2019 (which is now the subject of the instant appeal), but found that the Agency had not complied with the Commission’s order regarding leave restoration. See EEOC Petition No. 2019005292 (Jan. 16, 2020). In its August 15, 2019 decision, the Agency awarded Complainant only $2,451.30 in pecuniary damages, limiting Complainant’s harm to that harm which was incurred precisely during the delay (December 11, 2013 through March 5, 2015) in permitting her to telework. The Agency reasoned that Complainant was exposed to the sick building environment before the discriminatory act, noting that she was diagnosed with injuries on November 22, 2013. The Agency therefore determined that the delay was not the cause of her diagnosis. Further, the Agency found that Complainant did not provide evidence showing how the delay exacerbated her condition to the extent that it was the proximate cause of her April 20, 2014 hospitalization. In the six weeks leading up to her hospitalization, Complainant was on full-time telework. 2 As for Complainant’s additional claim that the Agency’s actions also constituted unlawful harassment, the Commission declined to find the actions were sufficiently severe or pervasive to create a hostile work environment. Instead, the matter was “more appropriately viewed as a denial of a reasonable accommodation . . . .” See EEOC Appeal No. 0120161254. 3 2020001343 The Agency determined Complainant was entitled to $10,000 in non-pecuniary damages based on statements by Complainant and her medical provider, describing the mental anguish and anxiety she experienced during the 84-day delay in permitting telework. Regarding attorney’s fees and costs, the Agency agreed with the $365 hourly rate, but reduced the number of hours expended from 435 hours to 132.75 hours. The decrease included hours worked during the pre-complaint stage, as well as time considered to be duplicative, redundant or excessive. For example, the Agency cited 101.15 hours worked, after receipt of the Report of Investigation (ROI) and before receipt of the final decision, that involved reviewing environmental reports, EPA regulations, mold reports, and a meeting with a civil engineer. In the Agency’s opinion, this work was unnecessary in making a request for compensatory damages. In another instance, the Agency considered excessive the 32 hours of work to respond to the Agency’s four-page Request for Reconsideration. Similarly, the Agency found that 29 hours to draft a ten-page brief was unwarranted given the more than thirty years of experience of Complainant’s attorney and the fact that the document was largely comprised of information previously included in an appeal document. Additionally, the Agency applied an across-the- board reduction of forty percent. Complainant was granted $31.68 in costs. The instant appeal followed. ANALYSIS AND FINDINGS Standard of Review As this is an appeal from a decision issued without a hearing, pursuant to 29 C.F.R. § 1614.110(b), the Agency's decision is subject to de novo review by the Commission. 29 C.F.R. § 1614.405(a). See Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614, at Chapter 9, § VI.A. (Aug. 5, 2015) (explaining that the de novo standard of review “requires that the Commission examine the record without regard to the factual and legal determinations of the previous decision maker,” and that EEOC “review the documents, statements, and testimony of record, including any timely and relevant submissions of the parties, and . . . issue its decision based on the Commission’s own assessment of the record and its interpretation of the law”). Compensatory Damages Compensatory damages are awarded to compensate a complaining party for losses or suffering inflicted due to the discriminatory act or conduct. See Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 at Chapter 11, § VII (citing Carey v. Piphus 435 U.S. 247, 254 (1978) (purpose of damages is to “compensate persons for injuries caused by the deprivation of constitutional rights”). Types of compensatory damages include damages for past pecuniary loss (out-of-pocket loss), future pecuniary loss, and nonpecuniary loss (emotional harm). See Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 at 4 2020001343 Chapter 11, § VII.B; and Goetze v. Dep’t of the Navy, EEOC Appeal No. 01991530 (Aug. 23, 2001). Pecuniary Damages Pecuniary damages may be awarded for losses that are directly or proximately caused by the agency's discriminatory conduct. See EEOC’s Enforcement Guidance: Compensatory and Punitive Damages Available Under Section 102 of the Civil Rights Act of 1991, EEOC Notice No. 915.002 at 8 (July 14, 1992) (“Guidance”). Pecuniary losses are out-of-pocket expenses incurred because of the agency's unlawful action, including job-hunting expenses, moving expenses, medical expenses, psychiatric expenses, physical therapy expenses, and other such quantifiable expenses. Past pecuniary losses are losses incurred prior to the resolution of a complaint through a finding of discrimination, or a voluntary settlement, whereas future pecuniary damages are those likely to occur after the resolution of the complaint. See Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 at Chapter 11, § VII.B (Aug. 5, 2015) (internal citations omitted). In a claim for pecuniary compensatory damages, a complainant must demonstrate, through appropriate evidence and documentation, the harm suffered because of the agency's discriminatory action. Damages for past pecuniary damages will not normally be sought without documentation such as receipts, records, bills, cancelled checks, or confirmation by other individuals of actual loss and expenses. Compensatory and Punitive Damages available Under Section 102 of the Civil Rights Act of 1991 (July 14, 1992) (available at www.eeoc.gov.) Complainant requested in her initial statement of damages $1,069,703.75 in medical expenses. The Agency, however, only granted her a fraction of the amount: $2,451.30. The Agency justified the small award by stating, while the work facility was said to be the cause of her conditions, Complainant was exposed to the environment before Complainant requested telework. So, the Agency asserted that the discriminatory action (i.e. the delay in providing telework as a reasonable accommodation) was not the cause of Complainant’s illnesses. Further, the Agency reasoned that Complainant’s evidence did not show the delay in approving telework exacerbated her conditions to the extent that it was a proximate cause of her April 20, 2014 hospitalization. Complainant was not hospitalized during the delay. Therefore, in the Agency’s view, its responsibility was limited to damages incurred between December 11, 2013 and March 5, 2014. A review of the instant record, however, shows otherwise. Complainant’s primary care physician, “Doctor-H”, established a nexus between the Agency’s delay in providing Complainant a reasonable accommodation and the “near fatal pulmonary respiratory attack” and resulting hospitalization. Doctor-H treated Complainant well before and after her hospital confinement, and attested that before November 22, 2013, Complainant did not have asthma nor any other pulmonary, cardiac, kidney or diabetic conditions. Complainant’s nasal and respiratory complaints led Doctor-H to refer Complainant to an allergy and asthma specialist, who diagnosed her with asthmatic bronchitis. 5 2020001343 The diagnosis, in conjunction with reports of mold findings and environmental hazards in her workplace, caused Doctor-H to conclude Complainant was experiencing “sick-building syndrome”. Doctor-H plainly attested: “My concern for her work environment was confirmed when she was transported to the hospital with the nearly fatal pulmonary attack of respiratory failure restricting her breathing and other serious conditions such as methicillin resistant staphylococcus, aureus pneumonia, and sepsis which can lead to organ failure and death.” He explained further that Complainant “had complications of dysfunctional kidneys, cardiac fibrillation, and diabetes. . . .” Complainant was admitted, by ambulance, to Piedmont Newnan Hospital on April 20, 2014. Complainant was in a coma and experienced organ deficits. After three days, she was transferred via helicopter to Piedmont Atlanta Hospital for further intensive care, including being placement on a respirator and dialysis. On June 3, 2014, Complainant was moved from the hospital to Warm Springs Medical Center for a three-week stay and then to Warm Springs Rehabilitation and Medical Specialty Hospital until her discharge on July 29, 2014. Doctor-H plainly stated: “In my professional opinion, I am reasonably certain that her near fatal pulmonary attack on April 20, 2014, and the complications arising from the attack were caused by the sick building environment to which she had been assigned before being granted telework in March 2014 . . . .” We find that such serious injury would likely not have occurred had the Agency granted Complainant’s reasonable accommodation request three months earlier. The parties acknowledge that workplace environmental factors caused Complainant to develop asthmatic bronchitis and the record shows that the Agency’s delay in providing telework as a reasonable accommodation exacerbated her respiratory conditions and proximately produced other physical ailments. Yet, the Agency would have us believe that in the three weeks between her initial diagnosis and request for telework Complainant developed serious conditions, admittedly caused by her workplace, that did not progress or worsen during months of continued exposure (during the Agency’s delay in granting telework). Further, the Agency asserted that any such exacerbation ceased and was unrelated to her near fatal attack in April 2014, because she was teleworking in the immediately preceding weeks. We find the Agency’s arguments to be speculative and unsupported by evidence. The statement by Doctor-H establishes that Complainant’s pulmonary attack, albeit occurring after telework was granted, was the consequence of additional exposure during the denied telework period. Therefore, Complainant is entitled to past pecuniary damages that encompass the April 20, 2014 medical emergency and accompanying hospitalizations and treatments. See Carpenter v. Dep’t of Agriculture, EEOC Appeal No. 01945652 (July 17, 1995). We now turn to the documentation provided by Complainant in support of her request for pecuniary damages. The record includes receipts for the following: 6 2020001343 Date of Service Provider Amount 2/4/14 - 2/25/14 Center for Allergy & Asthma $ 712.00 4/20/14 American Medical Response $ 536.50 (ambulance to Piedmont Newnan Hospital) 4/20/14 - 4/23/14 Piedmont Newnan Hospital $ 92,527.13 Coweta Emergency Group $ 4,159.00 Physician svcs during hospital stay) 4/23/14 Air Methods Corp. (Air Medical Transport Svc - helicopter) $ 37,563.00 4/23/14 - 6/3/14 Piedmont Atlanta Hospital $724,295.00 ___________ $859,792.63 The above-cited charges show what was charged by the service provider, not reduced amounts reflecting payment by insurance. The Commission has previously held that a federal Agency is required to pay a Complainant's medical bills without regard to whether health insurance paid for any part of the medical bills. Clark v. Dep't of Veterans Affairs, EEOC Appeal No. 0120092454 (Dec. 20, 2010); Wallis v. U.S. Postal Serv., EEOC Appeal No. 01950510 (Nov. 13, 1995); Yonker v. Dep't of Transp., EEOC Appeal No. 01A05979 (Jan. 9, 2001) (Complainant is entitled, pursuant to the collateral source rule, to the full amount of the pecuniary damages, even if some, or all, of the expenses were paid by her health insurance). Under the collateral source rule, an agency may not reduce its liability for damages because of payments made to a complainant from a collateral source. Complainant is required only to prove that she incurred the expenses to establish her entitlement to a corresponding damage award. She need not make the additional showing that she paid the expense. The Commission has consistently applied the collateral source rule in determining damages for over 20 years. See Woodrow B. v. Dep't of Health and Human Serv., EEOC Appeal No. 0120143194 (May 13, 2016). Therefore, we find that Complainant is entitled to all the charges listed above. Additionally, Complainant has submitted BlueCross BlueShield (BCBS) Explanation of Benefits (EOB) statements ranging in dates of service from November 22, 2013 through December 28, 2018. The majority of EOB statements are from July through December 2014. The statement for December 17, 2014 services reflects that Complainant had paid $5,235.00 of the $5,500 annual maximum “out-of-pocket” expenses for that calendar year. Although, as noted above, Complainant is entitled to the expenses charged for the medical services and not simply the amount she personally expended after insurance payments, we find she has not provided sufficient documentation for the medical expenses incurred after being discharged from Piedmont Atlanta Hospital. We shall award her the $5,235.00 in “out-of-pocket” costs she was responsible for in 2014. 7 2020001343 In seeking pecuniary damages for 2015 through 2018, Complainant submits a handful of EOB statements for each year and notes that at the end of each calendar year she had met the $5,500 maximum for out-of-pocket expenses. We find the submission of random EOB statements, simply identifying “Medical Care”, for the three-year period following her pulmonary attack insufficient to support an award of additional pecuniary damages. In Complainant’s March 10, 2019 supplemental request for compensatory damages, she requests an additional $19,369.90 in pecuniary damages. According to Complainant, she incurred $11,666.88 in 2018. In support, Complainant’s attorney provides a list, with the date of treatment, the provider’s name, and the amount purportedly charged. A similar list is proffered to support the request for $5,213.00 for 2019 medical expenses. Approximately $2,500 in drug expenses is also sought for the two-year period. The Commission finds that Complainant, seeking pecuniary damages for medical expenses occurring four and five years after she was denied a reasonable accommodation, has not provided adequate evidence of a nexus between these medical costs and the Agency’s discrimination. In fact, there is little evidence of what precisely these charges were for. There are no affidavits from the treating physicians nor receipts describing the services provided, only a list from Complainant’s attorney and a year-end printout from BCBS. Consequently, we decline to grant Complainant’s request for 2018 and 2019 medical expenses. We find that Complainant has established entitlement to $865,027.63 in pecuniary damages. Future Pecuniary In her request for compensatory damages, Complainant argued that she “faces reasonably anticipated future pecuniary loss arising from continuing medical and drug expenses along with continuing increases in insurance premiums.” In support Complainant simply proffers copies of previous year end EOB statements showing she met the maximum out-of-pocket expenses for the calendar year. As noted previously, these documents lack the information necessary to establish a nexus to the Agency’s actions and specific harms suffered. Her primary care doctor attested broadly that Complainant’s medical conditions “arising from the pulmonary attack and its organ complications necessitate the specialty medical care she has now and the need will probably continue.” Without supportive evidence or explanation, Complainant’s doctor estimated that “her present drug and medical expenses will increase at least 10% per year for the remainder of her life.” According to Complainant’s attorney, Complainant’s life expectancy is 29.2 years. The Commission finds that the Complainant’s request for future pecuniary damages is too speculative and imprecise. The evidence submitted is simply inadequate to support an award. Therefore, we decline to grant Complainant future pecuniary damages. 8 2020001343 Non-pecuniary Damages Non-pecuniary losses are losses that are not subject to precise quantification, including emotional pain and injury to character, professional standing, and reputation. See EEOC Notice No. 915.302, Enforcement Guidance on Compensatory and Punitive Damages Available Under Section 102 of the Civil Rights Act of 1991, at 10 (July 14, 1992). There is no precise formula for determining the amount of damages for non-pecuniary losses except that the award should reflect the nature and severity of the harm and the duration or expected duration of the harm. See Loving v. Dep't of the Treasury, EEOC Appeal No. 01955789 (Aug. 29, 1997). The Commission notes that non-pecuniary compensatory damages are designed to remedy the harm caused by the discriminatory event rather than to punish the agency for the discriminatory action. Furthermore, compensatory damages should not be motivated by passion or prejudice or be ““monstrously excessive” standing alone but should be consistent with the amounts awarded in similar cases. See Ward-Jenkins v. Dep't of the Interior, EEOC Appeal No. 01961483 (Mar. 4, 1999). Evidence from a health care provider or other expert is not a mandatory prerequisite for recovery of compensatory damages for emotional harm. 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)). Objective evidence of compensatory damages can include statements from a 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 non-pecuniary losses that are incurred as a result of the discriminatory conduct. Id. 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. Id. Complainant's own testimony, along with the circumstances of a particular case, can suffice to sustain his burden in this regard. Id. Citing statements from Complainant and her medical provider, the Agency noted that Complainant experienced mental anguish and anxiety during the delay in receiving a reasonable accommodation. The Agency reasoned that because Complainant endured such psychological harm for 84 days, the delay in granting telework, she was entitled to $10,000.00 in non- pecuniary damages. The instant record contains limited evidence regarding non-pecuniary damages, including the statement Complainant provided to the EEO Investigator. Complainant stated to the Investigator that, “I can no longer do many of the activities I used to enjoy including working out in the gym, taking Zumba classes, and hiking. Swimming and climbing stairs are now very difficult for me.” Further, she explained that her “overall morale and how I feel about my job” was impacted by the Agency’s actions. The situation was “heartbreaking and emotionally distressing”. 9 2020001343 She described the anxiety and concern she felt about having to return to work in a building that was making her sick. In light of the resulting medical impairments she quite simply “cannot enjoy my life the way I used to.” Nevertheless, we find that the Agency’s award of $10,000 is inadequate given the emotional harm suffered by Complainant in the form of decreased morale, loss of drive, increased anxiety, and overall decline in the enjoyment of life. Instead, we find that an award of $25,000.00 is appropriate in the circumstances before us. The Commission notes that this award is not “monstrously excessive” standing alone, is not the product of passion or prejudice, and is consistent with the amount awarded in similar cases. See Utt v. United States Postal Serv., EEOC Appeal No. 072007001 (March 26, 2009) (awarding complainant $25,000.00 in non- pecuniary compensatory damages where complainant provided testimony that as a result of discrimination he suffered from stress, low self-esteem, difficulty sleeping, weight gain, curtailed recreational activities, and had to sell some of his possessions because of financial problems); Parker v. Department of the Navy, EEOC Appeal No. 0720080062 (February 26, 2009) (awarding complainant $25,000.00 in non-pecuniary compensatory damages where complainant endured emotional pain and suffering, humiliation, difficulty sleeping, weight gain, and loss of enjoyment of life as a result of discrimination). Attorney’s Fees and Costs On July 25, 2018, Complainant’s attorney submitted his first request for fees and costs to the Agency. Specifically, he sought 403 hours for work expended from February 12, 2015 through July 25, 2018. Citing the Agency’s year-long delay in issuing a decision3 on compensatory damages and attorney’s fees, Complainant also put forward two additional requests on October 29, 2018 and July 18, 2019. In the October 2018 supplemental request, Complainant’s attorney claimed an additional 32 hours related to the Agency’s Request for Reconsideration (hereinafter “Request” or “RTR”). For work related to the Petition for Enforcement filed with the Commission, the July 2019 request sought 59 hours and 33 minutes. Because the Agency’s August 15, 2019 decision presently before us addresses both the hours requested in the initial request as well as the work expended in responding to the Agency’s Request, we shall consider the appropriateness of those hours. The Commission declines, however, to review the hours of work related to the Petition for Enforcement as they are more appropriately considered in the processing and compliance of Petition No. 2019005292 (January 16, 2020). By federal regulation, the agency is required to award attorney's fees for the successful processing of an EEO complaint in accordance with existing case law and regulatory standards. EEOC Regulation 29 C.F.R. § 1614.501(e)(1)(ii). To determine the proper amount of the fee, a lodestar amount is reached by calculating the number of hours reasonably expended by the attorney on the complaint multiplied by a reasonable hourly rate. Blum v. Stenson, 465 U.S. 886 (1984); Hensley v. Eckerhart, 461 U.S. 424 (1983). We note that in the instant case, the Agency does not challenge the Attorneys' hourly rates. 3 The final decision was issued on August 15, 2019. 10 2020001343 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 Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), 11-7 (November 9, 1999). A fee award may be reduced as follows: 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. at p. 11-8. All hours reasonably spent in processing the complaint are compensable, but the number of hours should not include excessive, redundant or otherwise unnecessary hours. EEOC Management Directive for 29 C.F.R. Part 1614 (MD-110), at 11-15 (Nov. 9, 1999) [ update for new MD-110]. A reasonable hourly rate is based on prevailing market rates in the relevant community for attorneys of similar experience in similar cases. MD-110 at 11-6. An application for attorney's fees must include a verified statement of attorney's fees accompanied by an affidavit executed by the attorney of record itemizing the attorney's charges for legal services. MD-110 at 11-9. While the attorney is not required to record in great detail the manner in which each minute of his time was expended, the attorney does have the burden of identifying the subject matters on which he spent his time by submitting sufficiently detailed and contemporaneous time records to ensure that the time spent was accurately recorded. See Spencer v. Dep't of the Treasury, EEOC Appeal No. 07A10035 (May 6, 2003). The attorney requesting the fee award has the burden of proving, by specific evidence, entitlement to the requested fees and costs. Koren v. U.S. Postal Serv., EEOC Request No. 05A20843 (Feb. 18, 2003). Pre-complaint Hours EEOC Regulation 29 C.F.R. § 1614.501(e)(1)(iv) provides, in pertinent part, that agencies are not required to pay attorney's fees on services performed during the pre-complaint process. An attorney may reasonably expend up to two hours to determine whether to represent a complainant. Nenita S. v. Dept. of Veterans Affairs, EEOC Appeal No. 0120151925 (May 23, 2017). Here, Complainant’s attorney requested 36 hours and 45 minutes for work completed from, as early as, February 12, 2015 through April 1, 2015, the date the formal complaint was filed. Therefore, we find the deduction of 33 hours by the Agency was appropriate. 11 2020001343 Redundant, Excessive or Otherwise Unnecessary Hours The Agency subtracted 180.75 hours4 as redundant, excessive or unnecessary. As noted above, the Agency specifically identified the time expended between Complainant’s receipt of the Report of Investigation (ROI) and the Agency’s issuance of a final decision. On appeal, Complainant argues that “[t]he final agency decision pays little respect for an attorney’s efforts to establish causation and damages in seeking opinion and knowledge of expert consultants, environmental research and EPA regulations when it relates to a client’s case.” The Commission, however, is not persuaded. We find that such research and consultation with a civil engineer were not necessary in proving that Complainant was subjected to discrimination or in establishing the harm suffered. While Complainant’s attorney asserts that hours worked during the investigation reflect “attempts to be an active participate in the ROI process. . .”, we find the hours are excessive. Some time to prepare Complainant for her interview with the EEO investigator may be reasonable. However, time spent, for example, reviewing emails in the hopes of providing useful information to the investigator is not. Similarly, spending more than five hours on a “draft affidavit” is excessive, especially when it follows more than three hours preparing the client for the interview with the EEO investigator and the interview itself. The billing records also contain an undue amount of time5 spent on the “Time Line” (TL), which Complainant’s attorney describes as a 34-page document “necessary for Complainant’s ability to adequately present the case to the EEOC in appeal of the Agency’s non-liability decision….” The Agency also persuasively argues that the time spent reviewing building leases and further environmental research was unnecessary to the finding that Complainant was denied a reasonable accommodation. Overall, we find the fee petition reflects unnecessary hours on conducting research, reviewing documents, and consulting with experts on environmental matters unrelated to the finding of discrimination. Further, given Complainant’s attorney’s decades of experience, the absence of a hearing, the narrow focus of the complaint, we agree with the Agency’s assessment that much of the time expended was excessive. We find that the Agency has met its burden in justifying such reductions. In contrast, we are not convinced by Complainant’s broad assertion on appeal that the Agency should not be permitted any deductions due to its delay in issuing a decision on compensatory damages and attorney’s fees. Any such delay by the Agency does not entitle Complainant’s attorney to compensation for hours found to be inappropriate. 4 The record reflects that although Complainant’s attorney billed in hours and minutes, the Agency’s calculations were completed with hours and decimal points. For example, the Agency’s deduction of 180.75 hours should instead read as 180 hours and 45 minutes. 5 Between June and October 2015, for example, Complainant’s attorney spent more than 25 hours, sometimes for more than three hours at a time, “revising the TL”. 12 2020001343 When reviewing fee petitions which contain many excessive, redundant, unnecessary or inadequately documented expenditures of time, in lieu of engaging in a line-by-line analysis of each charge claimed, the Commission may calculate the number of hours compensable by applying an across-the-board reduction to the number of hours requested. See Bernard v. Dep’t of Veterans Affairs, EEOC Appeal No. 01966861 (July 17, 1998). Therefore, we shall apply an across-the-board reduction of 40 percent for excessive and unnecessary hours. See Complainant v. Dep’t Agriculture, EEOC Appeal No. 0120093410 (June 11, 2012)(finding that a 60 percent across-the-board reduction of attorney’s fees was warranted where some of the counsel’s hours were excessive and there was no evidence to support the reasonableness of the requested hourly rate and hours expended); Complainant v. Dep’t of Commerce, EEOC Appeal No. 0120171366 (April 25, 2019)(upholding 33 percent across-the-board reduction of attorney fees by AJ for excessive and unreasonable hours). Therefore, of the 403 hours requested in her initial request for fees, we find that Complainant is entitled to 222 hours at the hourly rate of $365.00.6 While the Agency applied an overall reduction, in addition to the specific instances of unrelated or excessive work previously cited, we decline to do so. We find that additional cuts to such hours would be superfluous. Next we turn to Complainant’s “Statement of Additional Attorney’s Fees Incurred by Preparation of Complainant’s Opposition to Agency’s Request for Reconsideration” dated October 29, 2018. Although the Agency’s decision did not specifically cite the document by date or title, it did address the 32 hours requested by Complainant for work performed in response to the Agency’s Request. In reducing the hours by half, to 16 hours7, the Agency reasoned that Complainant’s attorney billed excessively for work producing a ten-page brief in response to the Agency’s four-page filing, particularly in light of the attorney’s more than thirty years of EEO experience and his earlier success on appeal. Our review of the record shows that 26 hours were spent drafting Complainant’s response to the Agency’s RTR. Despite the fact that the work product could have been efficiently completed in less time, we do not find that the Agency has shown the time requested to be demonstrably excessive. Therefore, we shall not impose the reduction taken by the Agency. Consequently, we find that the Agency’s determination regarding the number of hours reasonably expended in this case was improper. The Commission concludes that Complainant’s attorney is entitled to $92,710.00 in fees.8 6 403 hrs - 33 hrs (pre-complaint work)= 370. 370 hrs - 148 hrs (40%)= 222 hrs. 7 The Agency included this 16 hour deduction its total of 180.75 hours. 8 222 hours (initial request for fees) + 32 hours (supplemental request for fees)= 254 hours. Hourly rate of $365 x 254 hours= $92,710.00 13 2020001343 Costs In its decision, the Agency granted Complainant $31.68 in costs. The instant record, however, also contains receipts reflecting $521.26 in obtaining copies of medical records. Therefore, we find that Complainant is entitled to $552.94 in costs. CONCLUSION Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we hereby MODIFY the Agency’s decision on compensatory damages and attorney’s fees and costs. The case is REMANDED 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, the Agency shall: (1) tender to Complainant $890,027.63 in compensatory damages; and (2) tender to Complainant $92,710.00 in attorney’s fees and $552.94 in costs. 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). ATTORNEY'S FEES (H1016) If Complainant has been represented by an attorney (as defined by 29 C.F.R. § 1614.501(e)(1)(iii)), 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 the date this decision was issued. 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). 14 2020001343 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. 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 15 2020001343 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. 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. 16 2020001343 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 15, 2021 Date