Tiffanie M.v.U.S. Postal Serv.

Equal Employment Opportunity Commission

Dec 18, 2019

EEOC Appeal No. 0120182054 (E.E.O.C. Dec. 18, 2019)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013

Tiffanie M.,1
Complainant,

v.

Megan J. Brennan,
Postmaster General,
United States Postal Service
(Great Lakes Area),
Agency.

Appeal No. 0120182054
Hearing No. 440-2013-0096X
Agency No. 4J606015212

DECISION

On May 23, 2018, Complainant filed an appeal with the Equal Employment Opportunity
Commission (EEOC or Commission), pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s
April 20, 2018, final order concerning her equal employment opportunity (EEO) complaint
alleging employment discrimination in violation of Title VII of the Civil Rights Act of 1964 (Title
VII), as amended, 42 U.S.C. § 2000e et seq., and Section 501 of the Rehabilitation Act of 1973
(Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq. For the following reasons, the
Commission AFFIRMS the Agency’s final order.

ISSUES PRESENTED

The issues presented on appeal are:

1. Whether substantial evidence in the record supports the EEOC Administrative Judge’s
(AJ’s) finding that Complainant failed to establish that she was subjected to discrimination
on the basis of race, color, sex, disability, and reprisal when on September 21, 2012, she
was verbally assaulted by her manager and her manager placed her hand in Complainant’s
face; and

1 This case has been randomly assigned a pseudonym which will replace Complainant’s name
when the decision is published to non-parties and the Commission’s website.
0120182054

2
2. With respect to the issues where discrimination was found, did the AJ err by using
Complainant’s counsel’s customary hourly rate for the Grand Rapids, Michigan area
instead of the higher hourly rate of the relevant market rate in which the discrimination
arose.
BACKGROUND

The record reflects that at the time of events giving rise to this complaint, Complainant worked as
a Customer Service Supervisor at the Agency’s Jefferson Park Annex in Chicago, Illinois. The
AJ’s decision clearly articulated the facts of record, and the instant decision incorporates them by
reference. On November 8, 2012, Complainant filed an EEO complaint alleging that the Agency
subjected her to discriminatory harassment on the bases of race (African-American), sex (female),
color (Black), disability, and reprisal for prior protected EEO activity when:

1. On July 25, 2012, she was charged 8 hours of sick leave without notification;
2. In August 2012, she was removed from a training class;
3. On August 10, 2012, her schedule was changed from a 4:00 am start to a 6:30 am start
time;
4. On August 31, 2012, her manager raised her voice at Complainant and made the statement
“you need to transfer out”;
5. On September 21, 2012, she was verbally assaulted by a manager, including the manager
placing her hand in Complainant’s face;
6. On October 17, 2012, her manager yelled at Complainant about moving her car in the
parking lot;
7. On October 18, 2012, her manager yelled at Complainant about not getting enough mail
moved;
8. On October 20, 2012, she was issued a 5-day letter and moved out of her bid job
assignment;
9. On unspecified dates, management improperly disclosed Complainant’s medical
information and failed to properly maintain those records.

At the conclusion of the investigation, the Agency provided Complainant with a copy of the report
of investigation and notice of her right to request a hearing before an Equal Employment
Opportunity Commission Administrative Judge. A hearing was held on the merits of the complaint
on November 8 - 9, 2016, and a hearing on damages was held May 18, 2017. A final AJ decision
was issued March 18, 2018. The Agency subsequently issued a final action adopting the AJ’s
decision on April 20, 2018.

Complainant prevailed on three of her claims. Specifically, the AJ found: (1) Complainant was
discriminated against on the basis of disability when, in August 2012, she was removed from her
3999 Route Inspection Training; (2) Complainant was discriminated against on the basis of
retaliation on October 20, 2012, when the Agency reassigned her; and (3) the Agency violated the
Rehabilitation Act when, in mid-October 2012 and specifically on October 18, 2012, it improperly
released her medical information. The AJ awarded a total of $17,000 in compensatory damages
and ordered the Agency to consider taking appropriate disciplinary action against the responsible
0120182054

3
management officials, and to provide EEO training on the requirements of Title VII. As indicated
above, the Agency subsequently issued a final order adopting the AJ’s finding. The instant appeal
by Complainant followed.

CONTENTIONS ON APPEAL

On appeal, Complainant requests that the AJ’s decision on reasonable hourly rates be reversed and
the claimed fee rates be awarded. Complainant contends the AJ erred in awarding the fee based
on the normal Grand Rapids, Michigan rates, instead of the claimed Chicago market rates, or the
relevant community where the instant matter. Additionally, Complainant contends that her
allegations were not fractionable claims, and therefore no pro rata reduction should have been
made to the fee award. Complainant request that an adjustment be made to the fee award if it is
determined that she was discriminated against as articulated in allegation 5.

In response, the Agency requests that the Commission deny Complainant’s appeal, and affirm the
AJ’s decisions on the merits and damages. The Agency contends that Complainant was unable to
establish that any Agency official acted with any discriminatory animus with respect to allegation
5. Additionally, the Agency argues that Complainant failed to establish a proximate cause for any
additional claimed damages as it relates to the October 2012 reassignment or the September 2012
incident.

STANDARD OF REVIEW

Pursuant to 29 C.F.R. § 1614.405(a), all post-hearing factual findings by an AJ will be upheld if
supported by substantial evidence in the record. Substantial evidence is defined as “such relevant
evidence as a reasonable mind might accept as adequate to support a conclusion.” Universal
Camera Corp. v. National Labor Relations Board, 340 U.S. 474, 477 (1951) (citation omitted). A
finding regarding whether or not discriminatory intent existed is a factual finding. See Pullman-
Standard Co. v. Swint, 456 U.S. 273, 293 (1982). An AJ’s conclusions of law are subject to a de
novo standard of review, whether or not a hearing was held.

ANALYSIS AND FINDINGS

Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110),
at Chap. 9 § VI.C (Aug. 5, 2015) provides that on appeal to the Commission, the burden is squarely
on the party challenging the AJ’s decision to demonstrate that the AJ’s factual determinations are
not supported by substantial evidence. See id. In this case, this means that Complainant has the
burden of pointing out where and why the AJ’s findings are not supported by substantial
evidence. Cf. id. (pointing out that “[t]he appeals statements of the parties, both supporting and
opposing the [AJ’s] decision, are vital in focusing the inquiry on appeal so that it can be determined
whether the [AJ’s] factual determinations are supported by substantial evidence”).

Allegation 5 & Additional Attorney’s Fees
0120182054

4

Upon review, we find the record contains substantial evidence to support the AJ’s finding of no
discrimination with respect to Complainant’s allegation that she was verbally assaulted and
subjected to discriminatory harassment by a manager. Like the AJ, we find that Complainant failed
to establish that she was subjected to discrimination or retaliation with respect to this incident. The
record reflects that Complainant was accused of improperly denying another employee’s overtime
while acting as a manager. Complainant accused another manager of being responsible for making
the final decision regarding overtime, and a disagreement ensued as to who was responsible.
Complainant was never touched by the manager, and none of the circumstances surrounding the
incident indicate discriminatory animus or intent was involved. Likewise, we find that
Complainant has not established on appeal that any action taken involved discriminatory animus.

We also find support for the AJ’s determination that Complainant’s testimony about the incident
that occurred that day was not credible,2 and that Complainant did not present specific, substantive
evidence to prove she was subjected to disparate treatment based on any protected category. While
the incidents complained of in allegation 5 are unprofessional, they do not meet the criteria of
discriminatory personnel actions. Consequently, Complainant is not entitled to any increase in
the compensatory damages award based on our determination that she cannot establish that she
was subjected to discrimination with respect to allegation 5.

Attorney’s Fees

An agency is required to award attorney’s fees for the successful processing of an EEO complaint
in accordance with existing case law and regulatory standards. 29 C.F.R. § 1614.501(e); Bernard
v. Dep’t of Veterans Affairs, EEOC Appeal No. 01966861 (Jul. 17, 1998). Attorney’s fees are
computed by determining the lodestar, i.e., the number of hours reasonably expended multiplied
by a reasonable hourly rate. 29 C.F.R. § 16l4.501(e)(2)(ii)(B); EEO Management Directive for 29
C.F.R. Part 1614 (EEO MD-110) at 11-5 (citing Hensley v. Eckerhart, 461 U.S. 424, 434 (1983)).
All hours reasonably spent in processing the complaint are compensable, and the number of hours
should not include excessive, redundant or otherwise unnecessary hours. EEO MD-110 at 11-5
(citing Hensley, 461 U.S. at 434; and Bernard, EEOC Appeal No. 01966861). A reasonable hourly
rate is based on prevailing market rates in the relevant community for attorneys of similar
experience in similar cases. EEO MD-110 at 11-6 (citing Cooley v. Dep’t of Veterans Affairs,
EEOC Request No. 05960748 (Jul. 30, 1998)).

The reasonable hourly rate is generally determined by the prevailing market rate in the relevant
legal community for similar services by lawyers of reasonably comparable skill, experience and
reputation. Blum v. Stenson, 465 U.S. 886 (1984). The AJ determined that Complainant should be

2 An AJ’s credibility determination based on the demeanor of a witness or on the tone of voice of
a witness will be accepted unless documents or other objective evidence so contradicts the
testimony, or the testimony so lacks in credibility that a reasonable fact finder would not credit it.
See EEOC Management Directive 110, Chap. 9, at § VI.B. (Aug. 5, 2015).

0120182054

5
awarded counsel’s customary hourly rate used in his Grand Rapids, Michigan law firm.3 Although
the parties concede that Complainant worked in the Jefferson Park Carrier Annex of the Chicago
Post Office, and that the case was heard in the Chicago District Office, we find nothing in the
record to warrant reversing the AJ’s decision to use counsel’s customary hourly rate as the
reasonable hourly rate in the instant matter. The Commission has held that complainants can go
elsewhere to find an attorney to handle their specific case, even when it results in payment of a
higher hourly rate than the prevailing market rate where the matter arose, but this is not the
situation here. See Southerland v. U.S. Postal Serv., EEOC Appeal No. 01A05403 (Oct. 16, 2002).
In the instant matter, Complainant chose to hire an attorney with lower hourly rates from outside
of the market where allegations arose. Nothing in the record supports an assertion that
Complainant’s counsel performed his duties any differently than he would have if the case arose,
or was litigated in, Grand Rapids.

While Complainant contends that the AJ failed to justify the decision to pay counsel’s customary
rates, we note that the burden rests with Complainant to establish that a higher rate was justified.
Aside from citing a single case in which a higher hourly rate matching the forum’s jurisdiction
was awarded and establishing that a higher hourly rate was customary in Chicago than in Grand
Rapids, Complainant offers no evidence that the AJ erred or that a higher hourly rate was
warranted. Accordingly, we find no persuasive evidence, or precedent, to support the reversal of
the AJ’s decision on fees in the instant matter.

CONCLUSION

Based on a thorough review of the record and the contentions on appeal, including those not
specifically addressed herein, we AFFIRM the Agency’s final order implementing the AJ’s
decision. We find substantial evidence in the record to support the finding that Complainant failed
to establish that she was subjected to discrimination on the basis of race, color, sex, disability, and
reprisal when on September 21, 2012, she was verbally assaulted by her manager and her manager
placed her hand in Complainant’s face, as well as, to support the AJ’s decision to use
Complainant’s counsel’s customary hourly rate in the fee award calculation.

ORDER

The Agency is ordered to take the following remedial action within one hundred and twenty (120)
days of the date this decision is issued:

To the extent it has not already done so, the Agency shall pay Complainant $61,462.84 in
attorney’s fees and costs.

3 Complainant’s counsel had a customary hourly rate of $375 per hour, and $275 per hour for the
junior attorney on the case. Counsel was claiming that hourly compensation should have been at
the prevailing market rate for the Chicago area at $475 and $300 per hour respectively.
0120182054

6
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 verifying the corrective action has been implemented as ordered.4

STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0617)
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. A party shall have
twenty (20) calendar days of receipt of another party’s timely request for reconsideration in
which to submit a brief or statement in opposition. See 29 C.F.R. § 1614.405; Equal Employment
Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at Chap. 9 § VII.B
(Aug. 5, 2015). All requests and arguments must be submitted to the Director, Office of Federal
Operations, Equal Employment Opportunity Commission. Complainant’s request may be
submitted via regular mail to P.O. Box 77960, Washington, DC 20013, or by certified mail to 131
M Street, NE, Washington, DC 20507. 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 agency’s request must be submitted
in digital format via the EEOC’s Federal Sector EEO Portal (FedSEP). See 29 C.F.R. §
1614.403(g). 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 (S0610)
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. 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

4 The other aspects of the Agency’s final Order are not in dispute.
0120182054

7
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 (Z0815)
If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may request
permission from the court to proceed with the civil action without paying these fees or costs.
Similarly, if you cannot afford an attorney to represent you in the civil action, you may request the
court to appoint an attorney for you. You must submit the requests for waiver of court costs or
appointment of an attorney directly to the court, not the Commission. The court has the sole
discretion to grant or deny these types of requests. Such requests do not alter the time limits for
filing a civil action (please read the paragraph titled Complainant’s Right to File a Civil Action for
the specific time limits).
FOR THE COMMISSION:

____________________________ Carlton M. Hadden’s signature
Carlton M. Hadden, Director
Office of Federal Operations

December 18, 2019
Date