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.
