Sally Stapp, Complainant,v.Gordon R. England, Secretary, Department of the Navy, Agency.

Equal Employment Opportunity CommissionSep 9, 2002
01A05634_r (E.E.O.C. Sep. 9, 2002)

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.