Thomas E. Cleland, Complainant,v.Hershel W. Gober, Acting Secretary, Department of Veterans Affairs, Agency.

Equal Employment Opportunity CommissionAug 9, 2000
01972227 (E.E.O.C. Aug. 9, 2000)

01972227

08-09-2000

Thomas E. Cleland, Complainant, v. Hershel W. Gober, Acting Secretary, Department of Veterans Affairs, Agency.


Thomas E. Cleland v. Veterans Affairs

01970546; 01972227; 01975957

August 9, 2000

.

Thomas E. Cleland,

Complainant,

v.

Hershel W. Gober,

Acting Secretary,

Department of Veterans Affairs,

Agency.

Appeal Nos. 01970546; 01972227; 01975957

Agency Nos. 92-1140; 92-1554; 92-1563;

93-1739; 93-1742; 93-2139

Hearing Nos. 130-94-8088X; 130-94-8089X; 130-94-8090X;

130-94-8091X; 130-94-8092X; 130-94-80

DECISION

Complainant timely initiated three appeals to the Equal Employment

Opportunity Commission (EEOC or Commission) from three final agency

decisions (FADs) concerning complainant's claims of discrimination in

violation of Title VII of the Civil Rights Act of 1964, as amended,

42 U.S.C. � 2000e et seq. and Section 501 of the Rehabilitation Act of

1973, as amended, 29 U.S.C. � 791 et seq.<1> The appeal is accepted

pursuant to 64 Fed. Reg. 37,644, 37,659 (1999) (to be codified at 29

C.F.R. � 1614.405).<2>

ISSUES PRESENTED

1. Whether complainant was discriminated against based on sex, disability,

and reprisal when: (a) the agency failed to provide him with reasonable

accommodations that would allow him to perform the essential functions

of his position; and (b) he was made to sign in and was denied trips

and assignments granted to other Recreation Therapists.<3>

2. Whether complainant was discriminated against on the bases of

disability and reprisal when: (a) on May 22, 1992, his request for

renewed reasonable accommodation was put in abeyance; (b) on June 11,

1992, his clinical privileges were terminated; and (c) effective January

12, 1992, his employment with the agency was terminated.

3. Whether complainant was discriminated against on the bases of

disability and reprisal when: (a) the agency tried to intimidate

complainant's expected witnesses; (b) settlement conferences were

repeatedly rescheduled and subsequently canceled; (c) actions taken by

the agency were not consistent with an EEO decision dated October 23,

1992; and (d) complaints filed by complainant were improperly processed

and investigated.

4. Whether the agency correctly determined the amount of compensatory

damages.

5. Whether the agency's reduction in attorney's fees was appropriate.

BACKGROUND

Complainant, a male, states that he has various physical and mental

impairments, including permanent reading and writing dysphasia, permanent

dyslexia, permanent short-term memory loss, permanent neurological

processing dysfunction, upper respiratory problems, and bilateral hearing

loss. Complainant began his employment with the agency on June 16, 1991,

as a Recreation Therapist at the agency's Medical Center in Coatesville,

Pennsylvania. Complainant states that during his interview for the

position, he informed the Chief of Recreation Therapy (�Chief�) that

he has the above-referenced learning disabilities. This position was

complainant's first substantive employment after receiving his college

degree and vocational training to manage his learning impairments.

As indicated by its performance plan, the Recreation Therapist position

required the individual to be able to complete service level treatment

plans, update the treatment plans with progress notes, provide appropriate

therapeutic recreational activities to patients, supervise patients in

their therapeutic recreational activities, and provide other facility

employees with details regarding the patient's recreational activities.

By memorandum dated July 17, 1991, complainant made a request to the

Chief for the following accommodations: (1) an extension of time for

documentation; (2) printed forms with enlarged type settings; (3) a

monthly planner with enlarged type settings; (4) a change of tour of

duty to facilitate completion of documentation; (5) a scribe and reader,

or alternatively a transcription service, to aid in the completing of

charting; (6) a GE tape recorder; (7) a copy of the facility's Policy

and Procedure Manual on a tape recording; (8) a quiet place to perform

documentation; and (9) an opportunity to attend training seminars and/or

conferences to improve clinical and writing skills. Complainant provided

the necessary documentation to support his request. After receiving

complainant's accommodation request, the Chief requested review by the

facility's Ad Hoc Committee on Reasonable Accommodation which met on

July 30, 1991.

The Ad Hoc Committee submitted their recommendations on August 15, 1991,

in which they approved all of complainant's requested accommodations

except for the change of tour which was deferred until they could

determine if the other accommodations had alleviated the need for the

change. The facility's Medical Director approved the recommendations.

In October 1991, after conferring with his superiors and apparently

without much explanation, the Chief informed complainant that he could

not provide the accommodations recommended by the Ad Hoc Committee.

The Chief informed complainant that he could seek aid from the facility's

EEO Manager. Complainant thereafter sought aid from the facility's EEO

Manager, who required complainant to undergo a capability assessment by

a facility physician.

The facility physician issued a report in which he stated that he

believed complainant could perform his duties with the assistance of

standard formatting, a dictionary, and a three-point common phrase and

word listing. On December 10, 1991, the Ad Hoc Committee was reconvened

to consider the facility physician's report.<4> Complainant was not

allowed to submit any additional information from his psychologist or

vocational counselor. As a result of the physician's report, the Ad Hoc

Committee revised its prior recommendations and substituted the following

recommended accommodations: (1) extension of time for documentation;

(2) enlarged printed forms; (3) enlarged monthly calendar; (4) a list

of frequently used words and phrases; (5) a dictionary; (6) a GE tape

recorder; and (7) a quiet place to perform charting.

In January 1992, complainant made it known that he was considering

filing an EEO complaint relating to the changes in the recommended

accommodations. Around the same time, the agency began documenting

deficiencies in complainant's performance which later became the basis

for his termination. Among the incidents documented by the agency

were the failure to complete medical charts, failure to complete

observation/evaluation notes, failure to supervise patients, failure

to screen patients and develop treatment plans, failure to develop and

establish therapeutic recreation programs, failure to carry out orders

by locking the Great Hall contrary to supervisory instructions, and

falsely accusing another staff member of patient neglect.

Also, in January 1992, after granting the accommodations recommended

by the second Ad Hoc Committee, the Chief requested that complainant

begin his charting duties. Complainant questioned the extent he

could perform his charting duties because he had not yet been granted

clinical privileges. On January 29, 1992, complainant submitted

his initial application for clinical privileges. The Subcommittee

on Clinical Privileges recommended approval contingent upon receiving

two acceptable appraisals from former supervisors, a copy of the Ad Hoc

Committee's report granting reasonable accommodations, and an evaluation

from his current supervisor. On April 6, 1992, after receiving the

necessary documentation, the Subcommittee recommended approval of

clinical privileges and requested that complainant's current supervisors

evaluate his ability to perform the privileges. The Chief submitted

a memorandum on May 19, 1992, stating that complainant was deficient

in completing medical record documentation. On May 29, 1992, based on

his supervisor's evaluation, the Subcommittee withdrew its support for

granting complainant's clinical privileges.

Complainant's psychologist submitted a letter on March 17, 1992, stating

that complainant needed the accommodations originally recommended by

the Ad Hoc Committee. On April 30, 1992, complainant submitted another

request for accommodation. By letter dated May 22, 1992, complainant was

informed that his accommodation request was being held in abeyance pending

a decision on whether he should be terminated during his probationary

period. The Chief issued to complainant a letter of proposed discharge

on May 27, 1992. On June 11, 1992, complainant received his notice of

termination for failure to meet the requirements of the position.

Believing he was a victim of unlawful employment discrimination,

complainant filed six formal EEO complaints between March 9, 1992 and

December 29, 1992, which contained the claims set forth above as Issues

1-3. Following investigations and consolidation of the complaints,

complainant requested a hearing before an EEOC Administrative Judge

(AJ). Several witness provided relevant testimony. The Assistant

Chief of the Substance Abuse Unit, the unit in which complainant worked,

testified that with the exception of the charting functions, she found

complainant's performance entirely satisfactory. Two co-workers testified

that complainant's supervisor's actions toward complainant were noticeably

more harsh than to other employees. One of these employees confirmed that

even after she admitted responsibility for the incident where the Great

Hall was locked contrary to the supervisor's instructions, complainant was

still blamed and chastised for the incident. Other witnesses testified

that complainant was a good therapist and that management's reasons for

termination were unsupported by the facts. In fact, after complainant's

termination, several facility employees and patients submitted a petition

to have complainant reinstated. Following the hearing, the AJ issued

a recommended decision (RD).

The AJ found that complainant established a prima facie case of

disability discrimination based on a failure to provide reasonable

accommodation, in that he established through testimony and records

that he has learning impairments which substantially limit his ability

to learn, read and write; and that he is a "qualified individual with

a disability," since he is qualified for and can perform the essential

functions of the position in question with reasonable accommodation.

The AJ then concluded that the agency failed to provide any credible

justification for its failure to accommodate complainant's disabilities.

While the AJ found disability discrimination regarding the failure to

accommodate, he concluded that complainant failed to prove that the

agency's actions regarding the processing of his EEO complaints were

motivated by discriminatory animus toward his disabilities.

Regarding complainant's claim of sex discrimination, the AJ found

that complainant established a prima facie case of sex discrimination

only with regard to the agency's failure to provide him accommodations

similar to those provided to a female co-worker. However, the AJ found

that the agency articulated a legitimate, nondiscriminatory reason

which complainant failed to prove was pretextual. Specifically, the

AJ found that, to the extent any favorable treatment was provided to

the female co-worker, she received such favorable treatment over both

male and female employees alike. In view of the evidence as a whole,

the AJ concluded that complainant failed to demonstrate that agency's

actions regarding the signing in by telephone, denial of trips, and

receiving of less favorable assignments were related to his sex.

Finally, the AJ found that complainant established a prima facie case

of reprisal discrimination with regard to all claims. Although the AJ

questioned whether the agency had actually articulated a legitimate,

nondiscriminatory reason for its actions, particularly with regard to

Issues 1 and 2, he accepted the agency's submission that the responsible

agency official was only carrying forth his duties and that complainant

was not adequately performing the duties of his position. The AJ then

concluded that complainant established pretext by demonstrating that he

was singled out, treated differently, yelled at, and blamed for things

that others �could get away with.� The AJ additionally concluded that the

EEO Office's improper handling of complainant's complaints was motivated

by retaliatory animus. The AJ emphasized that throughout the processing

of complainant's cases, the agency was recalcitrant and unresponsive

to complainant's needs. More specifically, the AJ found that the EEO

office refused to supply complainant with the EEO Counselor's reports,

canceled meetings which might have been advantageous to complainant

and might have promoted settlement, and restrained the EEO Counselor's

discretion as to whom to interview.

The AJ recommended that the agency offer complainant the following relief:

(1) compensatory damages; (2) an unconditional offer of reinstatement

with appropriate back pay; (3) unconditional reinstatement with at

least a 20-day period in which complainant may determine whether the

reinstatement is within his current medical restrictions; (4) reasonable

accommodations as ordered by the agency's first ad hoc committee on

reasonable accommodation;<5> (5) cease and desist from all unlawful

employment practices under the Rehabilitation Act and Title VII; (6)

expunge any adverse materials relating to the agency's discriminatory

employment practices from complainant's personnel record and all related

records; and (7) post a Notice regarding the agency's discriminatory

practices consistent with Commission regulations.

Thereafter, the agency issued its initial FAD which: (1) adopted the AJ's

finding of discrimination based on a failure to provide complainant

reasonable accommodation; (2) rejected the AJ's findings of reprisal

discrimination; (3) adopted the AJ's finding of no sex discrimination;

and (4) adopted the AJ's finding no disability discrimination regarding

the process of his EEO complaints. The agency directed complainant

to submit evidence in support of his claim for compensatory damages

and his petition in support of attorney's fees and costs. Complainant

submitted various medical and counseling reports along with statements

from family and friends describing the extent of the emotional harm

complainant suffered as a result of the discrimination. Complainant also

submitted documentation of numerous bills and expenses that he asserted

related to the agency's discrimination. In total, complainant requested

$1,662,136.44 in compensatory damages ($252,136.44 in pecuniary damages

and $1,410,000.00 in non-pecuniary damages). In a separate compensatory

damages FAD, the agency awarded complainant $60,118.15 ($15,118.15 in

pecuniary damages and $45,000.00 in non-pecuniary damages). In a third

FAD, the agency awarded the complainant $90,603.15 of the $141,910.00

complainant requested for attorney's fees. The agency based its fee

reduction on certain disputed charges and the fact that complainant had

only prevailed on the disability portion of his complaints.

Complainant appeals all three FADs. Specifically, complainant contends

that he does not wish to be reinstated in a �substantially equivalent�

position but in a Recreational Therapist position.<6> Complainant also

states that the functions of the Recreation Therapist position have

changed somewhat and that any reasonable accommodation should take these

changes into consideration. Complainant also reiterates that he was

discriminated against on the basis of sex as certain female employees

were treated more favorably than he in several circumstances. Finally,

complainant contends that the agency's awards of compensatory damages and

attorney's fees were insufficient based on the record. The agency stands

by the decision in each of its FADs and requests that each be affirmed.

ANALYSIS AND FINDINGS

Pursuant to 64 Fed. Reg 37,644, 37,659 (1999) (to be codified at

29 C.F.R. � 1614.405(a)), all post-hearing factual findings by an

Administrative Judge will be upheld if supported by substantial evidence

in the record. Substantial evidence is defined as �such relevant evidence

as a reasonable mind might accept as adequate to support a conclusion.�

Universal Camera Corp. v. National Labor Relations Board, 340 U.S. 474,

477 (1951) (citation omitted). A finding that discriminatory intent

did exist is a factual finding. See Pullman-Standard Co. v. Swint,

456 U.S. 273, 293 (1982).

The Commission has reviewed the record consisting of the investigative

report and exhibits, the RD, the FADs, complainant's contentions on

appeal and the agency's reply to each of the appeals. We conclude

that the AJ properly determined that the agency discriminated against

complainant on the basis of disability when it failed to accommodate

complainant's known disabilities. We also conclude that the AJ properly

determined that the agency discriminated against complainant on the

basis of reprisal with regard to all of the issues. We note that the

AJ's findings of reprisal were supported by substantial evidence, in

that numerous witnesses testified that complainant was treated much

more harshly than other individuals in his position. Also, other

testimony established that the primary responsible agency official

treated complainant unfairly after learning that complainant went to the

EEO office to receive aid in seeking accommodation for his disabilities

and that the agency improperly handled complainant's EEO complaints.

We further concur with the AJ that complainant did not, however prove,

by a preponderance of the evidence, that he was discriminated against

on the basis of sex regarding any of the issues or on the basis of

disability regarding the agency's processing of his EEO complaints.

As a result, the Commission hereby affirms the AJ's findings in totality.

Regarding complainant's request to be placed in a Recreation Therapist

position, we advise complainant and the agency that EEOC Regulation 29

C.F.R. � 1614.501(a)(3) provides that the agency must grant the victim

of discrimination an unconditional offer of placement in the position

he would have occupied but for the discrimination, or a substantially

equivalent position. A �substantially equivalent� position is one that

is similar in duties, responsibilities, and location. Handy v Department

of Transportation, EEOC Petition No. 04950012 (February 23, 1996).

COMPENSATORY DAMAGES

Section 102(a) of the 1991 Civil Rights Act authorizes an award

of compensatory damages for 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

he has been harmed as a result of the agency's discriminatory action,

i.e., 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. Pecuniary Damages

Compensatory damages may be awarded for pecuniary losses that are

directly or proximately caused by the agency's discriminatory conduct.

See Guidance at 8. Pecuniary losses are out-of-pocket expenses incurred

as a result of the agency's unlawful action, including job-hunting

expenses, moving expenses, medical expenses, psychiatric expenses,

physical therapy expenses, and other quantifiable out-of-pocket expenses.

Id. Past pecuniary losses are losses incurred prior to the resolution

of a complaint through a finding of discrimination, the issuance of

a full-relief offer, or a voluntary settlement. Id. at 8-9. Future

pecuniary losses are losses that are likely to occur after resolution

of a complaint. Id. at 9. For claims seeking pecuniary damages, such

objective evidence should include documentation of out-of-pocket expenses

for all actual costs and an explanation of the expense, e.g., medical and

psychological billings, other costs associated with the injury caused by

the agency's actions, and an explanation for the expenditure. Id. at 9.

1. Past Pecuniary Damages

In this case, complainant provides medical bills, mileage charges,

loan documentation, telephone bills and other out pocket expenses as

evidence of past pecuniary damages. Complainant requests $19,020.10 for

doctor and pharmacy bills related to treatments received as result of

the agency's discrimination.<7> Complainant also requests $1,546.13 for

mileage associated with trips to his psychiatrist, $4,339.29 for loans

obtained to prevent foreclosure on his home, and $75,569.39 for other

out of pocket expenses. In its FAD, the agency reduced complainant's

request for medical bills to $15,118.15, based on the fact that some of

the named physicians had treated complainant for conditions unrelated to

the harm caused by the discrimination. Additionally, the FAD completely

refused to award complainant mileage cost, loan reimbursement, and out

of pocket expenses.

In reviewing the evidence, we find that the agency must pay complainant

$18,495.10 in past pecuniary damages. This amount includes $18,245.10

for medical expenses<8> and $250.00 for mileage expenses.<9> As to

complainant's loan reimbursement request, we find that this amount

is unrelated to the agency's discrimination, primarily because the

record indicates that the foreclosure proceedings began prior to

complainant's termination from the agency. Regarding complainant's

request for $75,569.39 for out of pocket expenses, we find complainant

failed to provide specific information to justify the award. Most of

the requested amount appears to involve equitable relief, such as back

pay and cost associated with pursuing his claim, which are not part of

a compensatory damages determination. The rest of his out of pocket

request appears to be for money spent paying routine household bills

and not for any expenses related to the agency's discrimination.

2. Future Pecuniary Damages

Complainant requests $48,230.00 in future pecuniary damages. This amount

includes $15,590.00 for future psychiatric treatment, $6,240.00 for

future counseling related to overcoming his learning disabilities, and

$26,400.00 for pharmacy bills. While we find that complainant is entitled

to future pecuniary damages, we find that the record supports an award of

$15,040.00. This amount includes: 2 years of weekly psychiatric treatment

at $75.00 per session or $7,800.00; $6240.00 for vocational counseling,

and $1,000.00 for medication.<10>

B. 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 against

the agency here at issue 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)).

Applying the above legal standards, we agree with the agency that

complainant submitted sufficient unrebutted evidence to establish that

he suffered emotional harm as a result of the agency's discrimination.

The record contains several medical opinions and witness statements

describing the effect the discrimination had on complainant's mental

and physical health.

Complainant's psychiatrist stated that he had began treating complainant

after his termination by the agency in 1992 and has continued treatments

up to the date of complainant's appeal. He opined that as a direct result

of the agency's discrimination, complainant suffered severe depression,

anxiety, irritable bowel syndrome, interference with marital and social

life, and numerous other post-traumatic stress disorder symptoms.

He further opined that the discrimination exacerbated complainant's

pre-existing learning disabilities. He stated that he prescribed numerous

tranquilizers and antidepressants in an effort to treat complainant.

He believed that complainant needed indefinite future treatment to

correct the effects of the physical and emotional damage caused by the

discrimination.

In addition, complainant's psychologist and vocational counselor, who

had worked with complainant prior to his employment with the agency,

stated that the agency's discrimination caused severe setbacks to

complainant's ability to overcome his learning disabilities. He further

stated that subsequent to the discrimination, he has worked over three

years with complainant to overcome the effects of the discrimination.

He believed further work was necessary to enable complainant to return

to his pre-discrimination state.

Last, complainant's personal physician stated that he began treating

complainant in July 1995 and diagnosed him as suffering from stress

and depression. He stated that complainant further presented evidence

of chest pain, myalgia, debilitating diarrhea, headaches and other

somatic complaints that directly resulted from occupational stress.

Complainant presented evidence from other physicians, but we find that

the evidence relating to his carpal tunnel syndrome and deviated septum

are unrelated to the agency's discriminatory actions.

Complainant also presented statements from his wife and a friend in

support of his claim. Complainant's wife stated that as a result of the

agency's discrimination, her husband became lethargic and very irritable

and suffered from anxiety, emotional distress, depression, shame, loss

of self-confidence and irritable bowel syndrome. She stated that they

have neither slept in the same bed nor had marital relations since 1992.

She further provided that complainant does not socialize or participate

in any hobbies. A friend of complainant provided a statement expressing

that after complainant's experience with the agency, he appeared depressed

with a changed outlook on life. She stated that he stopped rowing with

her and others friends, and after a period of time completely stopped

socializing all together.

We find that the uncontroverted evidence in the form of medical opinions

and statements from his wife and a friend establishes complainant's

entitlement to compensatory damages. While there is no dispute

that complainant is entitled to non-pecuniary damages, the parties

differ on the appropriate amount necessary to remedy the harm caused

by the discrimination. Complainant contends that he should receive

$1,410,000.00. The agency offers that $45,000.00 properly compensates

complainant for any harm caused by the discrimination. We note that the

Commission has awarded compensatory damages in cases somewhat similar to

complainant's case in terms of the harm sustained. See, e.g., McCann

v. Department of the Air Force, Appeal No. 01971851 (October 23, 1998)

($75,000.00 in non-pecuniary damages for a discriminatory discharge

where complainant presented evidence of feelings of psychological

numbness, anger, insomnia, depression, flashbacks, nightmares, fear,

fatigue, diminished pleasure in activities, some social withdrawal, less

confidence on the job and a constant fear of unjustified job loss);

Santiago v. Department of the Army, Appeal No. 01955684 (Oct. 14,

1998) ($125,000.00 in non-pecuniary damages where complainant suffered

depression and other emotional and mental disorders, and severe chest

and stomach pains, digestive problems, and incidents of shortness

of breath due to three years of verbal abuse and sex and age-based

discrimination by her supervisor); Brinkley v. United States Postal

Service, EEOC Appeal No. 01953977 (January 23, 1998) ($110,000.00 in

non-pecuniary damages for the injury sustained by complainant resulted in

her hospitalization, and the various symptoms she experienced included

hopelessness, loss of energy, agoraphobia, loss of interest in living,

depressed mood, impaired memory and concentration, insomnia, agitation,

and loss of interest in routine activities and personal self care); Finlay

v. United States Postal Service, EEOC Appeal No. 01942985 (April 29, 1997)

($100,000.00 in non-pecuniary damages for severe psychological injury

over four years which was expected to continue for an indeterminate

period of time, including ongoing depression, frequent crying, concern

for physical safety, loss of charm, lethargy, social withdrawal, concern

for physical safety, recurring nightmares and memories of harassment,

a damaged marriage, stomach distress, and headaches).

After analyzing the evidence which establishes the physical and emotional

harm sustained by complainant and upon consideration of damage awards

reached in comparable cases, the Commission finds that complainant

is entitled to an award of non-pecuniary damages in the amount of

$125,000.00. We find this case analogous to the above-referenced

cases with respect to the nature, severity and duration of the harm.

In reviewing the evidence, we find that complainant has suffered

physical and emotional harm in the form of severe depression, anxiety,

irritable bowel syndrome, interference with marital and social life,

social withdrawal, loss of self-confidence, shame, and damage to his

pre-existing learning disabilities. We also find that complainant's

physical and emotional harm began in 1992 and has continued through

the filing of his appeals in 1997. His psychiatrist believes that his

condition will continue into the indefinite future. Last, we note that

this award is not motivated by passion or prejudice, is not "monstrously

excessive" standing alone, and is consistent with the amounts awarded

in similar cases. See Cygnar, 865 F.2d at 848.

ATTORNEY'S FEES

By regulation, a federal agency must award attorney's fees, in accordance

with existing law, for the successful processing of an EEO complaint. See

64 Fed. Reg. 37,644, 37,659-60 (1999) (to be codified and hereinafter

referred to as 29 C.F.R. � 1614.501(e)). The fee award is ordinarily

determined by multiplying a reasonable number of hours expended on the

case by a reasonable hourly rate, also known as a �lodestar.� See 29

C.F.R. � 1614.501(e)(2)(ii)(B); Bernard v. Department of Veterans Affairs,

EEOC Request No. 01966861 (July 17, 1998). In determining the number

of hours expended, the Commission recognizes that the attorney �is not

required to record in great detail the manner in which each minute of his

time was expended.� See Bernard, supra. However, the attorney does have

the burden of identifying the subject matters in which he spent his time

by submitting sufficiently detailed and contemporaneous time records to

ensure that the time spent was accurately recorded. See Bernard, supra.

Further, a reasonable fee award may be assessed in light of factors such

as: (1) the time required (versus time expended) to complete the legal

work; (2) novelty or difficulty of the issues; (3) the requisite skill

to properly handle the case; (4) the degree to which counsel is precluded

from taking other cases; (5) the relief sought and results obtained; and,

(6) the nature and length of the attorney-client relationship. See Cerny

v. Department of the Army, EEOC Request No. 05930899 (October 19, 1994).

A complainant is only entitled to an award for time reasonably expended.

It does not always follow that the amount of time actually expended is

the amount of time reasonably expended. Elvin v. Department of Labor,

EEOC Request No. 01943425 (August 31, 1995). Rather, �billing judgement�

is an important component in fee setting, and hours that would not be

properly billed to a private client are also not properly billed to

the agency pursuant to a successful EEO claim. Id. 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.�

See Bernard, supra.

Here, there is no dispute as to the attorney's hourly rate of

$200.00. However, the agency denied the following fee requests:

1. .60 hours for telephone conversations with complainant's wife on June

22, 1992

The agency denied .40 and .20 hours for telephone calls made by the

attorney to complainant's wife on June 22, 1992 because they appeared

to duplicate telephone calls the attorney had already made to her on

the same day. The attorney argues that the calls were not duplicates

as they were for different amounts of time and different descriptions

of work performed.

Initially, we note that there is no evidence to substantiate the

agency's contention that the calls on June 22, 1992 were duplicative.

The attorney did not specifically document the nature of each telephone

call to complainant's wife. However, we find, based on the relatively

minor amount of time spent on the calls and the record as a whole,

that granting reimbursement for these telephone calls is reasonable.

Accordingly, the agency's decision to deny .60 hours for telephone

conversations on June 22, 1992 is reversed.

2. .90 hours for telephone conversations with complainant on July 1,

1992.

The agency concluded that these conversations concerned non-EEO matters:

(1) funds that complainant was receiving to cover lost income as a result

of the agency's actions; and (2) a letter concerning the agency matter

and the resulting threatened mortgage foreclosure. The attorney argues

that the conversations were related to complainant's EEO case because they

concerned matters which were a result of the agency's discrimination.

We find that the agency properly denied these requests because as we

found earlier, complainant did not link the financial matters and home

foreclosure to the agency's discrimination. Accordingly, we affirm the

agency's findings in this regard.

3. 15.60 hours for services on June 8, 11, 12, 16, 18, 1992

These charges were denied on the grounds that the services were rendered

prior to the filing of a formal complaint regarding complainant's

termination. The attorney notes that complainant filed the first of his

instant complaints in March 1992 and that the meeting and discussions

were not limited to the June 8, 1992 termination complaint. The attorney

states that the crux of the meetings involved discussions on how best

to proceed with complainant's entire discrimination case.

We find that the agency improperly denied this request. It is not

reasonable to assume from the evidence submitted that the meetings,

discussions, and research in question related solely to complainant's

termination. Rather, we accept the attorney's argument that the work

related to the previously filed complaints, the case as a whole, and

the best way to proceed with the all of his complaints.

4. 10 hours for services claimed on October 23, 1992 involving review

of a letter from the Administrative Judge

The agency determined that these services did not appear to involve the

EEO complaint on which complainant prevailed. The attorney does not

dispute the agency's deduction of the charge for October 23, 1992 but

explains that the agency mistakenly misread this charge to be 10 hours

when a claim for.10 hour was actually submitted. The attorney requests

that 9.9 hours mistakenly deducted from the overall award be restored.

We find that the agency must restore the 9.9 hours deducted from the

total award due to the its misreading.

5. 11.10 hours of 12.80 hours requested for specific services from

October 26, 1992 through May 5, 1993

Specifically, the attorney requests reimbursement for hours of service

performed on October 26, 1992, November 5, 1992, and December 16 and

29, 1992 in preparation for filing a formal EEO complaint. The agency

denied 11.10 hours because: (1) the October 26, 1992 services concerned

the remand of complaints on which complainant did not prevail; (2) the

November 5, 1992 entry referred to the complaint relating to the agency's

processing of his EEO complaints on which complainant did not prevail;

and (3) the December 16 and 29, 1992 entries referred to the preparation

for the filing of the formal EEO complaint relating to the agency's

mishandling of his EEO complaints. The attorney argues that all 12.80

hours requested related to claims upon which complainant prevailed.

Based on the information contained in the record, it is reasonable to

conclude that this work was related to the EEO processing complaint

filed on December 29, 1992, on which complainant did prevail before the

AJ and in this appeal. The record indicates that the October 16, 1992

work involved discussing and reviewing complainant's �EEO decisions.�

The November 5, 1992 entry indicates that the telephone conversations

concerned the EEO processing complaint. The record also confirms that

work was done on the EEO process complaint on December 16 and 29, 1992 as

the agency noted. Because we find that the hours requested were spent

primarily working on the EEO process complaint on which complainant

prevailed, we reverse the agency's denial of 11.10 hours.

6. 25% (9 hours) of the 36 hours expended during the investigative stage

The agency stated that it made this reduction because complainant did not

prevail on all of the issues in the complaints, though he did prevail on

the major issues. While conceding that four of these hours were unrelated

complainant's EEO case, the attorney contends that the agency should not

have made the 25% deduction nor taken away any of the remaining hours.

In view of the AJ's decision which was affirmed by this appeal, we find

that complainant prevailed on each of the three merit issues in his

case.<11> In light of the success achieved by complainant's attorney

and the fact that we do find the requested fees reasonable, we reverse

the agency's across-the-board reduction. See Bernard v. Department of

Veterans Affairs, EEOC Request No. 01966861 (July 17, 1998).

7. 25% (61 hours) plus an additional 83 hours of the 244 hours spent

during the discovery stage

The agency surmised that discovery was conducted from approximately June

30, 1994 through May 10, 1995. In addition to its 25% across-the-board

reduction, the agency concluded, without providing any explanation,

that 100 hours rather than the 183 hours requested is a more reasonable

figure to award complainant for time spent on discovery. The attorney

argues that the additional denial of 83 hours is inappropriate because :

(1) the agency did not comply with discovery requests which required

extensive extra work; (2) discovery involved six complaints and so any

reasonable amount of time spent on one case would have to be multiplied

by six; and (3) complainant has a learning disability which made it

very time consuming for the attorney to work with him on the case. The

attorney also contends that the agency incorrectly listed services

provided during the hearing preparation stage as being provided during

the discovery stage.

For reasons stated earlier, we reverse the agency's 25% across-the-board

reduction. We also reverse the agency's further reduction of the 83

hours. Based on our review of these specific requests and of the entire

record related to the discovery process, we find that the attorney's

requested number of hours were reasonable given the various discovery

related disputes with the agency and the extra time necessary to deal

with complainant's learning disability. Accordingly, we reverse the

agency's deduction and award complainant the full 244 hours associated

with the discovery process.

8. 25% (25 hours) of the 99 hours related to the hearing and hearing

preparation stage

Again, we find that the 25% reduction is unreasonable and award

complainant the full 99 hours associated with hearing preparations.

9. 56 of the 66 hours spent during the post-hearing stage

The agency denied the 56 hours on the grounds that they were either

unnecessary or duplicative. By example, the agency notes that several

telephone conversations in one day were made with complainant regarding

the status of his case; in other instances the attorney spoke with

complainant on several consecutive days about the status. According to

the agency, the only services that were reasonable were those spent

reviewing the administrative judge's decision, reviewing the agency's

final decision, determining the possibility of appeal, considering

the possibility of settlement, and preparing attorney's fee petition.

The attorney argues that complainant's disability caused much more

work than might ordinarily be required during the post-hearing phase.

According to the attorney, repeated descriptions and discussions of the

proceedings were required due to complainant's learning disability. The

attorney also states that additional work was required because of the

difficulty in confirming and documenting the status of the case with

both the agency and EEOC.

We agree with the agency that 66 hours is inappropriate primarily because

many of telephone calls and conference made to and with complainant

and his wife are insufficiently substantiated and appear excessive.

However, after reviewing the entries and considering complainant's

learning disabilities, we find that granting the attorney 33 of the 66

requested hours is reasonable.

Based on the foregoing, we reverse the agency's FAD regarding attorney's

fees and order the agency to compensate complainant for the 244.30 hours

improperly deducted from complainant's attorney's fee award.

CONCLUSION

Therefore, the agency's final decision is AFFIRMED in part and REVERSED

in part. Complainant's complaint is REMANDED for further processing in

accordance with the ORDER below.

ORDER (D1199)

To the extent it has not already done so, the agency is ORDERED to take

the following remedial action:

1. Within thirty (30) days of the date this decision becomes final,

the agency shall offer complainant placement in a Recreation Therapist

position, or if this position is not available, in a substantially

equivalent position. Complainant shall be placed under different

supervisors than the supervisors named as responsible officials in

complainant's cases. Complainant shall be offered this Recreation

Therapist position with at least a 20-day period in which to determine

whether to accept the position, and if necessary, this time period

should be extended for a reasonable period of time based on complainant's

doctor's assessment. Complainant shall also be awarded back pay, with

appropriate interest, retroactive to the date on which his employment

with the agency was terminated.

2. If complainant accepts reinstatement, he shall be provided with all

accommodations necessary for him to perform the essential functions of

the Recreational Therapist position or any other substantially equivalent

position offered. The agency shall refer to EEOC Enforcement Guidance:

Reasonable Accommodation and Undue Hardship Under the Americans with

Disabilities Act, EEOC No. 915.002 (March 1, 1999) for direction as to

how appropriately administer the interactive accommodation process.

3. Within thirty (30) days of the date this decision becomes final, the

agency shall expunge from complainant's personnel files any documents

relating to adverse actions complainant suffered due to the agency's

discriminatory practices.

4. Within thirty (30) days of the date on which this decision becomes

final, the agency shall tender to complainant $18,495.10 in pecuniary

damages, $15,040.00 in future pecuniary damages; and $125,000.00 in

non-pecuniary damages; a total of $158,535.10.

5. Within thirty (30) days of the date on which this decision becomes

final, the agency shall tender to complainant $48,860.00 (244.3 hours

at $200.00 per hour) in attorney's fees. The agency is also ordered

to pay complainant reasonable attorney's fees and costs incurred

in the successful pursuit of the three current appeals (EEOC Appeal

Nos. 01970546, 01972227 and 01975957). The attorney shall provide the

agency with all necessary documentation of services rendered and costs

as incurred in pursuit of these appeals within thirty (30) calendar

days of the date this decision becomes final. The agency shall tender

this payment separately from the payment specified in the first part of

this order and shall tender it to complainant no later than sixty (60)

calendar days after the date this decision becomes final.<12> See 29

C.F.R. � 1614.501.

6. Within thirty (30) days of the date this decision becomes final, the

agency shall post at an appropriate place, a copy of the attached notice.

7. Within a reasonable period of time, the agency is directed to conduct

EEO training (with emphasis on disability and reprisal discrimination) for

the management staff at its Medical Center in Coatesville, Pennsylvania.

The agency shall address management's responsibilities with respect to

eliminating discrimination in the workplace and all other supervisory

and managerial responsibilities under the federal equal employment

opportunity laws enforced by the Commission.

8. The agency is further directed to submit a report of compliance, as

provided in the statement entitled "Implementation of the Commission's

Decision." The report shall include supporting documentation of the

agency's calculation of back pay and other benefits due complainant,

including evidence that the corrective action has been implemented.

POSTING ORDER (G1092)

The agency is ORDERED to post at its Coatesville, Pennsylvania facility

copies of the attached notice. Copies of the notice, after being

signed by the agency's duly authorized representative, shall be posted

by the agency within thirty (30) calendar days of the date this decision

becomes final, and shall remain posted for sixty (60) consecutive days,

in conspicuous places, including all places where notices to employees are

customarily posted. The agency shall take reasonable steps to ensure that

said notices are not altered, defaced, or covered by any other material.

The original signed notice is to be submitted to the Compliance Officer

at the address cited in the paragraph entitled "Implementation of the

Commission's Decision," within ten (10) calendar days of the expiration

of the posting period.

IMPLEMENTATION OF THE COMMISSION'S DECISION (K1199)

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 64

Fed. Reg. 37,644, 37,659-60 (1999) (to be codified and hereinafter

referred to as 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)(Supp. V 1993). If the complainant files a civil action, the

administrative processing of the complaint, including any petition for

enforcement, will be terminated. See 64 Fed. Reg. 37,644, 37,659 (1999)

(to be codified and hereinafter referred to as 29 C.F.R. � 1614.409).

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M0300)

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 64

Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter referred

to as 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 64 Fed. Reg. 37,644, 37,661 (1999) (to be codified and hereinafter

referred to as 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).

COMPLAINANTS' RIGHT TO FILE A CIVIL ACTION

(R0400)

This is a decision requiring the agency to continue its administrative

processing of your complaint. However, if you wish to file a civil

action, you have the right to file such action in an appropriate United

States District Court WITHIN NINETY (90) CALENDAR DAYS from the date

that you receive this decision. In the alternative, you may file a

civil action AFTER ONE HUNDRED AND EIGHTY (180) CALENDAR DAYS of the date

you filed your complaint with the agency, or filed your appeal with the

Commission. If you file a civil action, YOU MUST NAME AS THE DEFENDANT IN

THE COMPLAINT THE PERSON WHO IS THE OFFICIAL AGENCY HEAD OR DEPARTMENT

HEAD, IDENTIFYING THAT PERSON BY HIS OR HER FULL NAME AND OFFICIAL TITLE.

Failure to do so may result in the dismissal of your case in court.

"Agency" or "department" means the national organization, and not the

local office, facility or department in which you work. Filing a civil

action will terminate the administrative processing of your complaint.

RIGHT TO REQUEST COUNSEL (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

August 9, 2000

1 The Rehabilitation Act was amended in 1992 to apply the standards in

the Americans with Disabilities Act (ADA) to complaints of discrimination

by federal employees or applicants for employment. Since that time,

the ADA regulations set out at 29 C.F.R. Part 1630 apply to complaints

of disability discrimination. These regulations can be found on EEOC's

website: www.eeoc.gov.

2 On November 9, 1999, revised regulations governing the EEOC's federal

sector complaint process went into effect. These regulations apply to all

federal sector EEO complaints pending at any stage in the administrative

process. Consequently, the Commission will apply the revised regulations

found at 64 Fed. Reg. 37,644 (1999), where applicable, in deciding the

present appeal. The regulations, as amended, may also be found at the

Commission's website at www.eeoc.gov.

3 It is unclear from the record whether or not complainant raised a claim

of race discrimination. However, on appeal, complainant does not appear

to contest any findings with regard to race discrimination.

4 In addition to the prior committee members, the subsequent Committee

included the Chief, the EEO Manager, and the facility physician.

5 The record shows that the first ad hoc committee met on December 10,

1991 and approved reasonable accommodations for complainant as delineated

on page 6 and 7 of the agency's final decision.

6 In its FAD finding disability discrimination, the agency stated that

it would place complainant in a Recreation Therapist or a �substantially

equivalent� position if the former position is not available.

7 In his initial compensatory damages request to the agency, complainant

requested $20,681.63 for past medical expenses. On appeal, complainant

amended his request to $19,020.10, to eliminate medical expenses unrelated

to the agency's discrimination.

8 We find that $775.00 for expenses related to treatment from Physician

S from January 1997 to April 1997, must be deducted because the record

does not contain a report from Physician S explaining how the treatments

related to the harm caused by the discrimination. See Complainant's

Compensatory Damage Exhibit F.

9 While complainant requested $1,546.13 for mileage expense, we find

that $250.00 appears a more reasonable calculation. In Santiago

v. Army, Appeal No. 01955684 (Oct. 14, 1998), the Commission held

that in determining mileage in a past pecuniary award, a complainant

shall be reimbursed $0.25 for each mile associated with receiving

treatment for a harm caused the agency's discrimination. In this case,

complainant, instead of providing the total mileage used, requests a

$1,546.13 for mileage, which equates to 6,184 miles using the $0.25 per

mile calculation. While we find 6,184 miles excessive and unsupported,

we acknowledge that complainant provides evidence of many visits to his

psychiatrist, physician, psychologist and vocational counselor. As a

result, we find that complainant is entitled to $250.00 or 1,000 miles.

10 We find complainant's request for $26,400.00 for future medication

unsupported by the record. While his psychiatrist stated that complainant

would need medication to maintain his mental health, we find that after

reviewing the pharmacy bills associated with his psychiatric treatments,

$1,000.00 is a reasonable amount for two years of medication.

11 While complainant did not prevail on each basis of discrimination, the

AJ found discrimination or reprisal with respect to each of complainant's

claims.

12 The record indicates that complainant was represented by a different

attorney in pursuing his appeals.