01A05634_r
09-09-2002
Sally Stapp, Complainant, v. Gordon R. England, Secretary, Department of the Navy, Agency.
Sally Stapp v. Department of the Navy
01A05634
September 9, 2002
.
Sally Stapp,
Complainant,
v.
Gordon R. England,
Secretary,
Department of the Navy,
Agency.
Appeal No. 01A05634
Agency No. 93-62204-019
Hearing No. 340-94-3847X
DECISION
Complainant timely initiated an appeal from an agency's final decision
on compensatory damages dated August 10, 2000. The agency subsequently
issued a final decision on attorney's fees dated November 15, 2000.
Complainant filed a timely appeal with the Commission challenging the
attorney's fees decision. The Commission will address both appeals in
the present decision.
BACKGROUND
The record reveals that during the relevant time, complainant, a WG-10,
was employed as a heavy mobile equipment mechanic at the Marine Corps
Logistics Base (Activity), in Barstow, California. Complainant filed a
formal complaint alleging that she was discriminated against on the basis
of sex when: (1) she was sexually harassed by her male coworkers; and
(2) she was subjected to lewd and vulgar remarks in the workplace that
resulted in the cancellation of her selection to the temporary position
of heavy mobile equipment repair inspector (HMERI), WG-11. Upon the
completion of the investigation of her complaint, complainant requested a
hearing before an EEOC Administrative Judge (AJ). A hearing was held on
March 3, 1995. The AJ recommended a finding of no discrimination with
respect to issue (2). The AJ did not identify issue (1) as a separate
allegation of discrimination.
The agency issued a decision dated March 30, 1996, in which it adopted
the AJ's recommended decision, finding no discrimination with respect
to issue (2). Complainant appealed this decision to the Commission.
On March 20, 1998, the Commission issued a decision affirming the finding
of no discrimination with respect to issue (2). The Commission, however,
concluded that complainant was discriminated against based on her sex in
connection with issue (1). The Commission's decision in Stapp v. Navy,
EEOC Appeal No. 01955637 (March 20, 1998), found that complainant had been
subjected to a hostile work environment from 1987 through September 1992,
when several male coworkers persistently spread rumors that complainant
and the selecting official were having an affair, and that complainant
received preferential treatment as a result of that relationship.
The decision noted that the rumors died down in September 1992, but
then resurfaced in February 1993, when complainant was selected for
one of two temporary heavy mobile equipment repair inspection positions.
The Commission found that complainant was entitled to compensatory damages
but specified that her entitlement is limited to incidents occurring
after November 21, 1991, the date of the enactment of the Civil Rights
Act of 1991. The Commission ordered the agency, inter alia, to conduct
a supplemental investigation on the issue of complainant's entitlement
to compensatory damages, provide complainant an opportunity to develop
the record with respect to her claim for compensatory damages, and
issue a final decision on the amount of compensatory damages, if any,
owed to complainant.<1>
Thereafter, by letter dated June 8, 1999, the agency informed
complainant of her right to present any evidence and argument in
support of her entitlement to compensatory damages. On July 19, 1999,
complainant submitted a document entitled �request for damages/relief
and attorneys fees or in the alternative for hearing on the issue of
damages/relief.� Complainant requested compensation in the amount
of $300,000.00. Complainant provided a declaration stating that she
suffered �humiliation and destruction of [her] reputation, self-esteem,
[her] relationship with [her] husband, and [was] subjected to humiliation
and emotion distress.� Complainant claims that she suffered continued
harassment after she had been moved from Building 573. Complainant states
that she conferred and counseled with friends to help her state of mind.
She states that �the stress became so severe that I was required to seek
medical aid on March 1, 1993. I discussed the problems I has having
at work and the stress in my marriage.� Complainant states that after
the decision of the AJ, management �transferred [me] back to Building
573, where my adversaries were working.� Complainant explains that due
to the incidents that occurred from 1993 to 1995, she could no longer
remain at the repair division. She states that she felt �an outcast,
alienated and laughed at by management.�
On October 18, 1999, complainant submitted an �amendment to charge
� damages and constructive discharge.� Complainant states that the
harassment continued in 1995, when Person A called her bosses complaining
that she was in his work area. Complainant states that she contacted
the EEO office and Deputy Director A and that as a result this behavior
stopped. In addition, complainant states that in February 1995, Person
B saw Deputy Director B and one of complainant's harassers speaking for
about forty-five minutes and the harasser walked straight towards Person
C and stated that complainant was �going to get everything she is asking
for; the job, the money, whatever she asked for.� Complainant also states
that in December 1995, she was told that she had to be returned to the
hostile work environment she had left. Complainant states a transfer
out of the Activity was her only solution. Complainant requests lost
wages and benefits and to be reinstated in a comparable paying position.
On January 15, 2000, complainant submitted declarations in support of
her request for compensatory damages. Complainant's husband provided a
declaration describing complainant's situation from 1993 and thereafter.
According to the declaration, he and complainant were married on May
15, 1992. He described the marriage as typical, with periods of ups and
downs. He stated that around 1993, the marriage became �very strained�
when complainant applied for an inspector position. Complainant's husband
noted that he became aware of rumors that complainant had an affair
with her previous supervisor. He claimed that upon hearing the rumor
on a daily basis and along with complainant's constant complaining
about how her co-workers were mistreating her, they began fighting
more often and he began to lose confidence in his wife and her denial
of the affair. Complainant's husband stated that complainant became
depressed all the time and had �spells of uncontrollable crying.� He
stated that he eventually gave complainant �the ultimatum of either
leaving her employment or separating.� He stated that complainant filed
for dissolution of the marriage in April of 1993, and the marriage was
officially terminated on October 22, 1993. He stated that once they both
got away from the problems at work, they renewed their relationship and
re-married on May 15, 1995.
In her declaration, complainant described her experiences with the
Activity beginning in February 1993, when she applied for the heavy mobile
equipment repair inspector position. Complainant described the comments
and rumors that were spread about her following her application for the
vacant position. She stated that she �felt abandoned and alone, fearing,
even for my personal safety.� Complainant stated that on March 1, 1993,
she went to see her physician and as a result was placed on medical leave
and given medication for stress and anxiety. Complainant explained that
she was off work for one week. Complainant stated that the harassment
continued after she filed her formal complaint. She stated that she spoke
to Person W at all hours of the day and night, enrolled in counseling,
and participated in group therapy on a weekly basis. Complainant claimed
that the harassment also affected her marriage. Complainant noted that
the rumors spread to her husband's work area and resulted in fights and
arguments. Complainant stated that while she was working away from her
harassers, she was content but not satisfied by the fact that she was
not moving up in her profession. Complainant stated that after being on
the new assignment in the Cal Lab for two years, on February 13, 1995,
she was told that she would have to move back to her previous location
with the harassers. Complainant stated that she was not moved from
calibration, however, she states that in December 1995, she was again
told that she would have to return to Building 573. Complainant stated
that on December 23, 1995, she was called from Nellis Air Force Base
and offered a position as a procurement clerk. Complainant stated that
she could not face returning to the harassment and thus, resigned her
position with the Activity to take a lower paying position.
Complainant's daughter, who was 14 years old in the beginning of 1993,
stated that during the first part of 1993, her mother had a difficult
time maintaining her composure. The daughter stated that �the incidents
of harassment and verbal abuse did not cease until several weeks after
she was transferred to another work area.� Complainant's daughter
claimed that her �mother was suffering great stress and depression and
complained about her work situation daily.� The daughter stated that
complainant �changed from her previous happy self to this very sad and
miserable person. She began to miss work, and would not participate in
the activities of my then teenage life.�
Complainant submitted a declaration from Person W, a retired Certified
Alcohol and Drug Counselor, who worked at the High Desert Mental Health
Center in Barstow, California from 1975-1988. Person W stated that she
knew complainant for over twenty years and counseled complainant during
that time. Person W stated that in 1993, complainant �suffered more
deeply and frequently than ever before� and often needed help dealing
with the situation. Person W stated that to the best of her recollection,
she spoke to complainant on average two times per week. Person W stated
that complainant's treatment at Barstow �often drove her to tears� and
adversely affected her health and family life. In her declaration,
Person W stated that she did not charge for her services.
Complainant also provided a letter dated June 18, 1993, from a doctor
at the Desert Valley Medical Group. According to the doctor, on March
1, 1993, complainant was seen at the clinic and �appeared depressed at
that time, because of difficulties she encountered at work.� The doctor
notes that complainant �alleged sexual harassment by her male co-workers,
and anxiety and stress relating to working with her husband in the same
building while going through divorce proceedings.� The doctor states that
complainant's symptoms �were significant enough that she was prescribed
Diazepam, and advised to stay off of work for a week.� The doctor states
that on a subsequent visit on April 27, 1993, �it was recommended that
complainant be moved to another building so she could work away from
her husband and co-workers. This was done with salutary results�.
The doctor notes that complainant � denies any anxiety or stress in her
present position, and is very satisfied with it.� The record shows that
complainant visited the Desert Valley Medical Group on March 1, 1993,
April 22, 1993, April 27, 1993, and June 17, 1993.
The record contains a letter from the Clinical Director of the Family
Service Center of the Marine Corps Logistic Base dated June 30, 1993.
In this letter, the Clinical Director states that complainant has been
in individual counseling at the Family Service Center since March 1,
1993, and is also involved in a once a week women's group run by a
licensed therapist.
In an April 19, 2000 submission, complainant objects to several exhibits
the agency relied on in determining her entitlement to compensatory
damages. Complainant states that with regard to the agency's claim that
she failed to mitigate damages, she did accept a position with the federal
government as a clerk and later entered public service as an employee
with McDonald's and then with Federal Express. Complainant stresses that
she suffered a substantial loss of income as a result of the agency's
discrimination. Complainant also argues that despite the agency's
contentions, her personal life did not affect her job performance.
Complainant states that despite the agency's argument, there is no
evidence to suggest that she is �an unstable person, predisposed to
marital discord.� Complainant states that the agency failed to produce
evidence that the birth of her grandchild was �a source of emotional
stress and discord within the family.� Also, complainant states that
the agency did not provide evidence of �pre-existing psychosocial (sic)
disorders.� Complainant requests compensatory damages and a position
in the government at her previous pay scale (including pay raises)
and benefits.
The agency issued a final decision dated August 10, 2000, in which it
awarded complainant $5,000.00 in non-pecuniary damages and $185.00 in
past pecuniary damages, plus interest. The agency noted that although
the Commission found that complainant was subjected to a hostile work
environment from 1987 through September 1992, she is not entitled to
recover compensatory damages for discrimination occurring prior to
November 21, 1991, the date the Civil Rights Act became effective.
With regard to the discrimination occurring between November 21, 1991,
to September 1992, the agency found that complainant failed to allege
or show that she sustained any harm during that period. The agency
also stated that from September 1992, until February 1993, the date
complainant applied for the HMERI vacancy, the discrimination subsided,
and complainant failed to show that she suffered any harm during this
period. The agency reviewed the evidence submitted by complainant and
concluded that she is entitled to compensatory damages resulting from
the harassment from February 1993, and thereafter. The agency decided
that complainant was entitled to compensatory damages for the period of
February 24, 1993, through June 18, 1993. The agency found, however,
that complainant was not subjected to discrimination and did not suffer
harm while on reassignment between June 18, 1993, and February 1995,
when she was told that she would be transferred back to her previous
work location where the harassers still worked.
The agency decision stated that although complainant was entitled
to compensatory damages for the period of February 24, 1993, through
June 18, 1993, her damages should be limited because of pre-existing
conditions and outside stressors that related to her claim. Specifically,
the agency relied on the declaration by Person W in which she stated
that she counseled complainant for the twenty-year period leading up to
the discrimination at issue. The agency found that Person W implied
that in some instances complainant suffered deeply and frequently and
that in the present case, complainant suffered additional harm as a
result of the harassment in 1993. The agency claimed that complainant
had a history of marital and domestic problems that coincided with
the twenty-year counseling period mentioned by Person W. The agency
noted that complainant had been divorced twice before and had engaged
in an intensely emotional custody battle with her first husband over
her daughter. The agency stated that the custody battle dealt with
allegations of the first husband's alcoholism, purported radical religious
practices, nonpayment of child support, and his purported sexual abuse
of her daughter. The agency stated that these issues were stressful
concerns for complainant from 1991 until 1997. The agency noted that
complainant married her third husband in May 1992 and separated from
him in April 1993. The agency stated that the alleged harassment that
complainant claimed triggered the marital problems occurred in February
1993, only two months prior to the couple's separation. The agency also
noted that in August 1994, following the alleged period of harassment,
complainant's third husband choked her and threatened witnesses during
an altercation on the base. The agency concluded that complainant was
predisposed to marital and domestic turmoil before, during, and after
the harassment at issue. The agency stated that complainant failed to
show the agency's misconduct was the proximate cause of any emotional
distress she may have suffered during the period at issue.
The agency concluded that the most reliable evidence of harm suffered
by complainant between February 1993, and June 18, 1993, was the
letter from complainant's physician dated June 18, 1993. The agency
noted that in the letter, the doctor stated that complainant �appeared�
depressed, however, the doctor did not provide any specific diagnosis of
complainant's condition. The doctor's letter also stated that factors
other than harassment contributed to complainant's stress, including
working in the same building with her husband while undergoing a divorce.
The agency pointed out that according to the doctor's letter, following
the April 27, 1993 transfer, complainant was anxiety and stress free. In
addition, the agency stated that its determination regarding damages
�have been substantially impacted by evidence that your submissions were
fraught with inaccurate, deceptive, and untrue statements that made you
a less than credible witness.� The agency concluded that complainant's
harm lasted approximately four months and compensated her at a rate of
$1,250.00 per month for a total of $5,000.00 for non-pecuniary damages.
Further, the agency awarded complainant $180.00 for doctor's visits
between March 1, 1993, and June 17, 1993, and $5.00 for a prescription
taken during the relevant period for a total of $185.00. The agency
stated that although the record showed complainant participated in
individual counseling and group therapy during the relevant period, she
failed to submit bills for these sessions and would not be reimbursed.
The agency also stated that since Person W counseled complainant for free,
no reimbursement was granted. Finally, the agency noted that complainant
did not claim future pecuniary losses.
In its decision, the agency treated complainant's claim that she was
forced to resign from the agency as a constructive discharge claim.
The agency stated that complainant should have raised a constructive
discharge claim as a separate complaint but found nevertheless that
there is sufficient evidence in the record to make a determination on
that issue. The agency concluded that complainant failed to establish
a constructive discharge claim.
On appeal, complainant challenges the $5,000.00 compensatory damages
award. Complainant requests damages in the amount of $300,000.00.
Complainant objects to the agency's decision to limit her damages
award by attempting to impeach her testimony on a collateral issue.
Further, complainant objects to the agency's use of various statements
and documents on grounds that they are immaterial, hearsay, and other
evidentiary bases. Complainant also objects to the agency's claim that
she is �an unstable person, predisposed to marital discord.� Complainant
argues that she is entitled to the difference in pay between the rate
she was receiving while at the agency and the pay rate of the various
jobs she has held since being constructively discharged.
ANALYSIS AND FINDINGS
A. COMPENSATORY DAMAGES
Section 102(a) of the 1991 Civil Rights Act authorizes an award
of compensatory damages for all post-act pecuniary losses, and for
non-pecuniary losses, such as, but not limited to, emotional pain,
suffering, inconvenience, mental anguish, loss of enjoyment of life,
injury to character and reputation, and loss of health. In this regard,
the Commission has authority to award such damages in the administrative
process. See West v. Gibson, 527 U.S. 212 (1999). Compensatory damages
do not include back pay, interest on back pay, or any other type of
equitable relief authorized by Title VII. To receive an award of
compensatory damages, a complainant must demonstrate that 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. Department of the Navy, EEOC Appeal No. 01934157
(July 22, 1994), req. for reconsid. denied, EEOC Request No. 05940927
(December 11, 1995); 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 11-12, 14 (July 14, 1992) ("Guidance").
A complainant is required to provide objective evidence that will allow
an agency to assess the merits of her request for damages. See Carle
v. Department of the Navy, EEOC Appeal No. 01922369 (January 5, 1993).
1. NON-PECUNIARY DAMAGES
Non-pecuniary damages constitute the sums necessary to compensate the
injured party for actual harm, even where the harm is intangible.
Carter v. Duncan- Higgins, Ltd., 727 F.2d 1225 (D.C. Cir. 1984).
The award should take into account the severity and duration of the harm.
Carpenter v. Department of Agriculture, EEOC Appeal No. 01945652 (July
17, 1995). Non-pecuniary and future pecuniary damages are limited
to an amount of $300,000.00. The Commission notes that for a proper
award of non-pecuniary damages, the amount of the award should not be
"monstrously excessive" standing alone, should not be the product of
passion or prejudice, and should be consistent with the amount awarded
in similar cases. See Ward-Jenkins v. Department of the Interior, EEOC
Appeal No. 01961483 (March 4, 1999) (citing Cygnar v. City of Chicago,
865 F. 2d 827, 848 (7th Cir. 1989)).
In her declaration, complainant described her experiences with the agency
beginning in February 1993, stating that as a result of the harassment
she �felt abandoned and alone, fearing, even for my personal safety.�
Complainant stated that the rumors of her having an affair with her
previous supervisor spread to her husband's work area and resulted in
fights and arguments. Complainant's husband submitted a declaration
describing complainant's situation from 1993 and after, stating that in
1993, the marriage became �very strained� when complainant applied for
the inspector position. Complainant's husband stated that upon hearing
rumors that his wife had an affair with her previous supervisor and her
constant complaining about mis-treatment from her co-workers, he and
complainant began fighting more often and he began to lose confidence
in his wife and her denial of the affair.
From the records entered into evidence, it can be concluded that
complainant was seen at the Desert Valley Medical Group four times
between March 1, 1993, and June 17, 1993. In a June 18, 1993 letter,
her doctor states that complainant suffered from stress due to �alleged
sexual harassment by her male co-workers, and anxiety and stress relating
to working with her husband in the same building while going through
divorce proceedings.� The letter indicates that complainant was placed
on Diazepam and advised to stay out of work for a week in April 1993.
The doctor states that on April 27, 1993, he recommended complainant be
moved to another building to get away from her husband and co-workers. The
doctor's letter states that following the move in April 1993, complainant
denied any anxiety or stress. The record also contains a June 30, 1993
letter from the Clinical Director of the Marine Corps' Family Service
Center. This letter states that complainant has been in individual
counseling since March 1, 1993, and is involved in a once a week women's
group headed by a licensed therapist. The letter does not state whether
this counseling resulted from the harassment she suffered at work.
In several decisions the Commission has awarded non-pecuniary damages
for emotional distress or mental anguish. In Lawrence v. United States
Postal Service, EEOC Appeal No. 01952288 (April 18, 1996), the Commission
authorized an award of $3,000 in compensatory damages for emotional harm
where complainant averred that she suffered from weight loss, nausea,
stomach problems and headaches. In White v. Department of Veterans
Affairs, EEOC Appeal No. 01950342 (June 13, 1997), the Commission ordered
an award of $5,000.00 in non-pecuniary damages where the complainant's
testimony and his psychologist's report indicated that the harassment
the complainant endured, which took both sexual and nonsexual forms,
led complainant to suffer from anxiety, depression, emotional fatigue,
occasional nightmares, and insomnia which lasted approximately a year and
a half. In Benson v. Department of Agriculture, EEOC Appeal No. 01952854
(June 27, 1996), the Commission affirmed the agency's award of $5,000.00
in non-pecuniary damages where the complainant, his relatives, and his
colleagues offered testimony regarding the embarrassment and humiliation
that the complainant suffered at work as a result of the denial of
promotional opportunities, a suspension, and other adverse actions.
Having carefully considered the facts of this case, the Commission finds
that complainant is entitled to non-pecuniary damages in the amount of
$5,000.00. In reaching this amount, the Commission considered a number of
factors, including: the nature and severity of the discrimination, and the
nature and severity of complainant's mental anguish and related symptoms,
and the evidence pertaining to this mental anguish. The evidence on this
issue largely consisted of brief testimony by complainant and her family,
a declaration by complainant's friend, a two paragraph letter from the
complainant's doctor, and a one sentence letter from the Clinical Director
of the Family Service Center. Finally, we considered the amounts awarded
in similar cases. The record contains no psychiatric evaluations or
evidence that complainant received any medications to treat her mental and
emotional state beyond June 18, 1993. Based on all these considerations,
we find that $5,000.00 is a proper award for the anguish which complainant
has suffered for the period of February 24, 1993, through June 18, 1993.
Complainant contends that as a result of the agency's harassment, she was
forced to resign and thereby suffered a significant loss in future income.
Specifically, complainant states that she was told in February 1995 and
again in December 1995, that she would have to return to her previous
work location with the harassers. Complainant acknowledges that she
was not returned to her previous work locations but states that all the
previous emotions and fears came back to her when she was told that she
might have to be moved and claims that she started applying for positions
elsewhere and ultimately resigned from the agency and accepted a position
at another facility. Complainant requests loss income for the years
1996 - 1999 in the amount of $80,116 plus benefits and requests annual
losses for twenty years in the amount of $500,000.00.
Complainant's contention that she was forced to resign by the agency
is in essence a constructive discharge claim. We find that this claim
is not at issue in the instant appeal. Therefore, we will not address
this matter in this decision, but advise complainant that if she wishes
to pursue this matter she should contact an EEO counselor.
2. PECUNIARY DAMAGES
Pecuniary damages are available for out-of-pocket expenses shown to
be related to the discriminatory conduct. Typically these damages
include reimbursement for medical expenses, job hunting expenses,
moving expenses, and other quantitative out of pocket expenses.
The Commission requires documentation in support of these expenses,
typically in the form of receipts, bills, or physicians statements.
See Minardi v. United States Postal Service, EEOC Appeal No. 01981955
(October 3, 2000); Gause v. Social Security Administration, EEOC Appeal
No. 01972427 (March 8, 2000).
In the present case, we find that complainant is entitled to past
pecuniary damages in the amount of $180.00 for doctors visits between
March 1, 1993, and June 17, 1993, and $5.00 for a prescription of
Diazepam. Complainant failed to provide evidence that she is entitled
to other past pecuniary damages or any future pecuniary damages.
B. ATTORNEY'S FEES
On September 21, 2000, complainant submitted a petition for attorney's
fees in the amount of $ 29,167.26, constituting103 hours of work at a
rate of $ 250.00 per hour and 11.25 hours of work at a rate of $300.00
per hour.
The agency issued a final decision dated November 15, 2000, on
complainant's claim for attorney's fees. The agency argued that the
three attorneys handling complainant's case should have expended only
48.375 hours on complainant's case. The agency noted that complainant
was entitled to attorney's fees up to the issuance of the agency's
final decision and thus found that the request for reimbursement for
$3,391.87 for services provided in August and September 2000, after the
issuance of the agency decision on compensatory damages, was improper.
The agency agreed to pay $25.39 for postage and copies. Next, the agency
addressed complainant's claim for $25,375.00 for 101.50 hours at $250.00
per hour for legal services from January 26, 1995, to September 18,
1999.<2> The agency stated that the fee request did not adequately
identify the subject matters on which the attorneys spent their time.
Thus, the agency rejected 16.75 hours which were identified vaguely as
�tele/calls,��tele conf,� �Rev let,� �Rev Corres,� �Prep let,� �Prep
Doc,� Prep Corres,� and �Prep. Amend to charge.� The agency denied
3.5 hours of the 10.5 hours requested which was identified as �conf,
w/cl,� �tele re:cl� or similar language. The agency denied 23.25 of the
31.25 hours requested for preparing the complainant's April 1995 brief.
The agency noted that the brief was a �remarkably simple brief, with
absolutely no case law cites.� The agency rejected 4.0 of the requested
4.75 hours for research since no law cites appeared in the brief.
Finally, the agency argued that a reduction in the number of hours
reasonably expended is necessary because at least three experienced
labor law attorneys (Attorneys A, B, and C) were working on the case.
The agency imposed a 10% reduction to the hourly request. Thus, the
agency reduced complainant's request by subtracting 47.5 hours from the
requested 101.25 hours to reach 53.75 hours.<3> Then the agency reduced
the 53.75 hours by 10% to find that the reasonably amount of billable
hours for complainant's case should be 48.375 hours.
In addition, the agency found that the rate of $250.00 per hour was
unreasonable in the present case. The agency noted that there is no
evidence that any of the three attorneys working on complainant's case
have ever served as counsel before the Commission. The agency stated that
complainant did not provide the agency with a copy of the fee arrangement
document in complainant's case. The agency noted that the law firm who
represented complainant is located in the locale of Los Angeles; however,
the hearing and the agency were located in the �economically depressed
area of the Mojave Desert.� The agency concluded that given the low
complexity of complainant's case and the availability of experienced
attorneys in the area, complainant could have found a capable attorney
much closer and less expensive. The agency stated that San Bernadino
is the largest county in the nation and noted that there over 25 pages
of attorney listings in the Barstow telephone book. The agency noted
that a reasonable hourly rate in this locale is between $100.00 to
$150.00 per hour and concluded that $150.00 per hour was reasonable in
complainant's case.
Finally, the agency concluded that there were no exceptional circumstances
in complainant's case which would lend to increasing the fee. The agency
noted that complainant sought $300,000.00 in damages but was awarded only
$5,185.00. Thus, the agency characterized the success in complainant's
case as �limited� and reduced the requested fees by an additional 25%.
Thus, the agency multiplied the number of hours it found reasonable to
expend in this case (48.375) by what it determined to be a reasonable
hourly rate ($150.00) and reduced that product by 25% to determine
that complainant was entitled to $5,442.19 in attorney's fees. Thus,
the agency found that the reasonable attorney's fee was $5,442.19 and
that appropriate costs were $25.39, for a total award of $5,467.58 in
attorney's fees and costs.
Attorney B filed an appeal on November 20, 2000, on complainant's behalf
contesting the agency's decision on attorney's fees. Attorney B argued
that once complainant filed her appeal from the agency's August 10,
2000 decision on compensatory damages, the agency lost jurisdiction of
the matter. Attorney B stated that she is awaiting the decision of the
Commission on the compensatory damages issue and instructions concerning
the issue of attorney's fees. She explained that further information
on attorney's fees will be submitted if requested. Attorney B claimed
that three additional hours were expended regarding the attorney's fees
issue and noted that the current billing rate is $300.00 per hour.
The record contains a letter dated September 21, 2000, from Attorney B
responding to the agency's request for information on attorney's fees.
The letter included a copy of the most recent bill in complainant's case.
Attorney B stated that the billed hours were time spent by herself
and other attorneys who worked on the case, not other staff members.
She stated that this was a contingency fee case and asked for an allowance
that the bill does not reflect a loadstar amount. She added that the
usual hourly agreements include monthly interest on the unpaid balance
at the rate of 1.5% or 18% per annum. The bill for attorney's fees
reflects a total of $29,167.26 and covers the period of January 26,
1995, through September 20, 2000.
The record contains a letter dated October 17, 2000, from Attorney C in
response to an agency request for additional information on attorney's
fees. The letter states that the case was first worked on by Attorney
A who worked on the case until his departure from the firm in September
1997. The letter states that at the relevant time, Attorney A had been
a licensed attorney for over ten years and had numerous hours of trial
experience in state courts. The letter notes that during his time with
the firm Attorney A worked in the field of Employment Law 90% of the time.
The letter states that Attorney B took over primary responsibility for the
case following Attorney A's departure. The letter states that Attorney
B has been a practicing attorney for over twenty years, with years of
experience as a trial lawyer. The letter states that Attorney B works
on family law, criminal law, and employment law matters. The letter
notes that on occasion Attorney C has also worked on complainant's case.
According to the letter, each of the three attorney's who worked on
complainant's case billed only for his/her time and did not include
time spent by secretarial or other persons. The letter noted that if
discussions were had between members of the firm, only the person working
on the file billed for the time spent, if billed at all. The letter is
signed by Attorney B and Attorney C.
The record contains an affidavit dated January 19, 2001, from Attorney
D, from the Law Offices of Attorney D, Rancho Cucamonga, California.
Attorney D states that she engages in the practice of Labor Law litigation
in the Barstow area and that she customarily charges $175.00 per hour
when engaged in such practice.
A finding of discrimination raises a presumption of entitlement to an
award of attorney's fees. 29 C.F.R. � 1614.501(e). Attorney's fees
shall be paid for services performed by an attorney after the filing of
a written complaint. Id. An award of attorney's fees is determined by
calculating the lodestar, i.e., by multiplying a reasonable hourly fee
times a reasonable number of hours expended. Hensley v. Eckerhart, 461
U.S. 424 (1983); 29 C.F.R. � 1614.501(e)(2)(ii)(B). "There is a strong
presumption that this amount represents the reasonable fee." 29 C.F.R. �
1614.501(e)(2)(ii)(B). A reasonable hourly fee is the prevailing market
rate in the relevant community. Blum v. Stenson, 465 U.S. 886 (1984).
A petition for fees and costs must take the form of the verified statement
required by the Commission's regulations at 29 C.F.R. � 1614.501(e)(2)(i).
1. REASONABLE NUMBER OF HOURS EXPENDED
At the outset, we note that in its decision on attorney's fees, the agency
denied complainant's claim for $3,391.87 for services provided during
August and September 2000, following the issuance of the final decision
on compensatory damages. We agree with the agency, that 11.25 hours
in attorney's fees and $21.87 in costs for services rendered in August
and September 2000, were properly deducted by the agency from the fee
petition as these hours relate to services provided during the present
appeal of the agency's August 10, 2000 compensatory damages decision.
No greater award regarding compensatory damages was gained through
this appeal.
In determining the number of hours reasonably expended, the Commission
recognizes that the attorney �is not required to record in great detail
the manner in which each minute of his time was expended.� Hensley,
461 U.S. at 437, n.12. However, the attorney does have the burden
of identifying the subject matters in which he spent his time, which
can be documented by submitting sufficiently detailed contemporaneous
time records to ensure that the time spent was accurately recorded.
See National Association of Concerned Veterans v. Secretary of Defense,
675 F.2d 1319 (D.C. Cir. 1982). Counsel for the prevailing party should
make a �good faith effort to exclude from a fee request hours that are
excessive, redundant or otherwise unnecessary.� Hensley, 461 U.S. at 434.
After careful review of the initial fee petition submitted herein,
the Commission finds that the hours claimed by Attorneys A, B, and C,
are generally unsupported and vague. While we decline to engage in a
line by line analysis of the requests, we make the following general
observations. Specifically, we find that the statement of attorney's
fees is insufficiently detailed. For example, the petition bills
17.75 hours for �tele/call(s),� tele conf,� �prep of corr,� �prep let,�
�rev file, prep doc,� �corresp,� �rev and prep rely,� and �prep. amend
to charge.� Also, the petition lists 5.0 hours for �res� or research
without identifying the specific nature of the research done. Further,
the petition lists 10.5 hours for �conference w/ client,� �telephone
Conf. w/ cl,� and �tele re: cl.� We find it difficult to ascertain
the reasonableness of work performed under such general descriptions.
However, we do note that complainant's attorneys provided their legal
services in this case over a four year time span and that there was a
hearing, an appeal, and a request for reconsideration to the Commission.
When a fee reduction is in order based on excessive hours, it is
not necessary for the Commission to "perform a detailed analysis to
determine precisely the number of hours or types of work for which no
compensation is allowed; rather, it is appropriate to reduce the hours
claimed by an across-the-board reduction." Abbate v. Department of the
Navy, EEOC Appeal No. 01971418 (March 24, 2000)(citing, Finch v. United
States Postal Service, EEOC Request No. 05880051 (July 15, 1988)).
Our review of the record in this case indicates that such an across the
board reduction of hours expended by 20% is reasonable in this case.
Therefore, we find that 82.4 hours ((114.25 hours - 11.25 hours) x 20%)
is the reasonable number of hours complainant's attorneys shall be
compensated for legal work in this case.
Further, we find that the agency improperly imposed a 10% reduction on the
number of hours claimed by complainant's attorneys based on the fact that
three allegedly experienced labor lawyers worked on one case. The agency
claimed that as three attorneys worked on complainant's case there is some
duplication of hours as each attorney familiarized himself with the case.
The agency does not make specific references to duplication of hours.
According to the Equal Employment Opportunity Management Directive for
29 C.F.R. Part 1614 (EEO MD-110), 11-19(November 9, 1999), a verified
statement of fees and costs shall include a list of the services rendered
itemized by date, number of hours, detailed summary of tasks, rate,
and attorney's name. Although the petition in this case was lacking,
we note that Attorneys B and C provided signed statements that the hours
billed did not include hours spent updating themselves on the files
and stated that where more than one attorney worked discussed the case,
only the attorney working on the file billed for the time spent, if billed
at all. Further, the signed statement reflects that Attorney A was solely
responsible for the case until his departure from the firm in September
1997, at which time Attorney B took over primary responsibility for the
case with Attorney C occasionally working on the case. As we find there
is no evidence of duplication of hours, we find the agency improperly
imposed a 10% reduction on the reasonable number of hours claimed.
2. REASONABLE HOURLY RATE CHARGED
Next we will address the hourly rate requested. In Blum, 465 U.S. at
895, the United States Supreme Court held that reasonable hourly
rates are to be measured by the "prevailing market rates in the
relevant community." The Commission notes that the burden is on the
fee applicant to produce satisfactory evidence--in addition to the
attorney's affidavits--that the requested rate, or rates in this case,
are in line with those prevailing in the community for similar services
by lawyers of reasonably comparable skill, experience, and reputation.
Blum, 465 U.S. at 895, n.11.
In the present case, three attorneys from the same firm worked on
complainant's case, and all three claimed a rate of $250.00 for services
rendered from 1995 through 1999. The firm provided an affidavit dated
October 12, 2000, responding to the agency's request for information
on attorney's fees. The affidavit indicates that during the relevant
time Attorney A, who handled complainant's complaint through September
1997, was a licensed attorney for over 10 years and had numerous hours
of trial experience in state courts. The affidavit stats that Attorney
A worked 90% of his time with the firm in the field of employment law.
The affidavit states that Attorney B took over primary responsibility
for complainant's case following Attorney A's departure. The affidavit
indicates that during the relevant time Attorney B was practicing for
over 20 years, with years of experience as a trial lawyer. The affidavit
states that Attorney B worked on family, criminal, and employment law
matters. Finally, the affidavit indicates that Person C occasionally
worked on the file. We note that none of the attorneys introduced
evidence to show that they actually billed other clients at the rate of
$250.00 during the relevant period.
As mentioned above, the record contains an affidavit dated January
19, 2001, from Attorney D, from the Law Offices of Attorney D, Rancho
Cucamonga, California. Attorney D states that she engages in the practice
of Labor Law litigation in the Barstow area and that she customarily
charges $175.00 per hour when engaged in such practice.
Once complainant's counsel has provided support for their requested rate,
the burden shifts to the agency to go forward with evidence that the rate
is erroneous, and the agency's attempt to rebut the case for a requested
rate must be through the use of specific contrary evidence tending to
show that a lower rate would be more appropriate. Brent v. Department
of the Air Force, EEOC Request No. 05901175 (January 18, 1991); Hays
v. Department of the Air Force, EEOC Request No. 05880813 (January 26,
1989).
Although the agency argues that $150.00 is a reasonable hourly rate
in this case, it has failed to provide documentation that this is the
rate customarily charged in these types of cases. The only persuasive
evidence provided in the present case is a sworn statement from Attorney
D which indicates that she is a California attorney who engages in labor
law litigation in Barstow and that she customarily charges $175.00
per hour when engaged in such practice. Upon review, we find that
the attorneys in this case have not sustained their burden in showing
that they were entitled to a higher hourly rate. Accordingly, we will
compute attorney's fees for Attorneys A, B, and C, at $175.00 per hour.
Thus, the firm representing complainant is entitled to attorney's fees
in the amount of $14,420.00 (82.4 hours x $175.00/hour). Furthermore,
complainant is entitled to costs in the amount of $25.39. Finally,
we reject the agency's reduction of the attorney's fees by 25% on the
grounds that the matter was a �limited success.� While recognizing
that complainant only prevailed on one issue, the Commission finds that
this fact was properly factored in the reductions already calculated in
this case.
Accordingly, the agency's decision on compensatory damages is AFFIRMED.
The agency's decision on attorney's fees is MODIFIED and we REMAND the
matter of attorney's fees and costs to the agency for further processing
in accordance with the Order provided herein.
ORDER
Within 30 days of the date this decision becomes final, the agency shall
pay complainant $14,420.00 in attorney's fees and $25.39 in costs, less
any amounts already paid by the agency. The agency shall send evidence
of payment to the Compliance Officer as referenced herein.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0501)
Compliance with the Commission's corrective action is mandatory.
The agency shall submit its compliance report within thirty (30)
calendar days of the completion of all ordered corrective action. The
report shall be submitted to the Compliance Officer, Office of Federal
Operations, Equal Employment Opportunity Commission, P.O. Box 19848,
Washington, D.C. 20036. The agency's report must contain supporting
documentation, and the agency must send a copy of all submissions to
the complainant. If the agency does not comply with the Commission's
order, the complainant may petition the Commission for enforcement
of the order. 29 C.F.R. � 1614.503(a). The complainant also has the
right to file a civil action to enforce compliance with the Commission's
order prior to or following an administrative petition for enforcement.
See 29 C.F.R. �� 1614.407, 1614.408, and 29 C.F.R. � 1614.503(g).
Alternatively, the complainant has the right to file a civil action on
the underlying complaint in accordance with the paragraph below entitled
"Right to File A Civil Action." 29 C.F.R. �� 1614.407 and 1614.408.
A civil action for enforcement or a civil action on the underlying
complaint is subject to the deadline stated in 42 U.S.C. 2000e-16(c)
(1994 & Supp. IV 1999). If the complainant files a civil action, the
administrative processing of the complaint, including any petition for
enforcement, will be terminated. See 29 C.F.R. � 1614.409.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
The Commission may, in its discretion, reconsider the decision in this
case if the complainant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. The appellate decision involved a clearly erroneous interpretation
of material fact or law; or
2. The appellate decision will have a substantial impact on the policies,
practices, or operations of the agency.
Requests to reconsider, with supporting statement or brief, must be filed
with the Office of Federal Operations (OFO) within thirty (30) calendar
days of receipt of this decision or within twenty (20) calendar days of
receipt of another party's timely request for reconsideration. See 29
C.F.R. � 1614.405; Equal Employment Opportunity Management Directive for
29 C.F.R. Part 1614 (EEO MD-110), 9-18 (November 9, 1999). All requests
and arguments must be submitted to the Director, Office of Federal
Operations, Equal Employment Opportunity Commission, P.O. Box 19848,
Washington, D.C. 20036. In the absence of a legible postmark, the
request to reconsider shall be deemed timely filed if it is received by
mail within five days of the expiration of the applicable filing period.
See 29 C.F.R. � 1614.604. The request or opposition must also include
proof of service on the other party.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely, unless extenuating circumstances
prevented the timely filing of the request. Any supporting documentation
must be submitted with your request for reconsideration. The Commission
will consider requests for reconsideration filed after the deadline only
in very limited circumstances. See 29 C.F.R. � 1614.604(c).
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (T0900)
This decision affirms the agency's final decision/action in part, but it
also requires the agency to continue its administrative processing of a
portion of your complaint. You have the right to file a civil action in
an appropriate United States District Court within ninety (90) calendar
days from the date that you receive this decision on both that portion
of your complaint which the Commission has affirmed and that portion
of the complaint which has been remanded for continued administrative
processing. In the alternative, you may file a civil action after
one hundred and eighty (180) calendar days of the date you filed your
complaint with the agency, or your appeal with the Commission, until
such time as the agency issues its final decision on your complaint.
If you file a civil action, you must name as the defendant in the
complaint the person who is the official agency head or department head,
identifying that person by his or her full name and official title.
Failure to do so may result in the dismissal of your case in court.
"Agency" or "department" means the national organization, and not the
local office, facility or department in which you work. If you file
a request to reconsider and also file a civil action, filing a civil
action will terminate the administrative processing of your complaint.
RIGHT TO REQUEST COUNSEL (Z1199)
If you decide to file a civil action, and if you do not have or cannot
afford the services of an attorney, you may request that the Court appoint
an attorney to represent you and that the Court permit you to file the
action without payment of fees, costs, or other security. See Title VII
of the Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e et seq.;
the Rehabilitation Act of 1973, as amended, 29 U.S.C. �� 791, 794(c).
The grant or denial of the request is within the sole discretion of
the Court. Filing a request for an attorney does not extend your time
in which to file a civil action. Both the request and the civil action
must be filed within the time limits as stated in the paragraph above
("Right to File A Civil Action").
FOR THE COMMISSION:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
September 9, 2002
__________________
Date
1The agency filed a request for reconsideration
of the Commission's decision which was denied in Stapp v. Department of
the Navy, EEOC Request No. 05980655 (May 6, 1999).
2A review of the September 21, 2000 petition shows that complainant
actually requested attorney's fees through October 18, 1999, totaling
$25,750.00. Additionally, although the agency states that complainant
requested fees for 101.5 hours, a review of the petition shows that she
actually requested reimbursement for 103 hours during this period.
3Although the agency states that complainant requested reimbursement for
101.25 hours from 1995 through 1999, a review of the petition shows that
she actually requested reimbursement for 103 hours.