Complainant further states on appeal before this Commission that “the harassment continued upon my return to work in October 1996.” Such evidence indicates that some of complainant’s harm was incurred long after the agency’s discriminatory acts.
What kind of advice did this lady have, to submit the wrong kind of evidence?
Complainant has not shown any nexus between the above disorders and the agency’s discriminatory
acts. Accordingly, she is not entitled to compensation therefor.
Complainant has presented medical documentation dated in early 1997
relating to prenatal care, the delivery of her child, and the repair of
her son’s hernia. In addition, she has presented documentation from the
Department of Veterans Affairs showing that effective June 14, 2001,
service connection was established for, among other things, chronic
adjustment disorder with mixed anxiety and depression, incurred during
military service sometime after June 29, 1998. Complainant has not shown
any nexus between the above disorders and the agency’s discriminatory
acts. Accordingly, she is not entitled to compensation therefor.
We note that the agency is liable solely for the harm resulting from
its discriminatory acts. In our prior decision finding discrimination,
we found that complainant was subjected to sexual harassment when S 2
continuously made sexual remarks designed to pressure her into having
sexual relations with him. The conduct also involved touching and
pinching. In her May 26, 1995 Formal Complaint, complainant said that
the incidents occurred from May to December 1994. During the AJ hearing,
the AJ confirmed these dates with the parties. Hearing Transcript p. 49.
The record further reveals that complainant was reassigned from S 2 to
S 1 on December 13, 1994, S 1 issued the removal letter on January 3,
1995, and complainant was reinstated and returned to work under S 1 on
or about October 1996.
In correspondence dated November 1, 1996, Dr. TA reported that complainant
had been diagnosed with “depression: not otherwise specified” that was
“related to her work environment” and that she required continuous
treatment involving therapy sessions twice a week. In a November 13,
1996 letter, Dr. TA said that complainant’s symptoms made her unable to
work at that time. Correspondence dated in October 14, 1997 revealed
that complainant had attended four treatment sessions from October 29
to November 26, 1996 and fourteen sessions from May to October 1997.
Correspondence from April 16, 1997 from Dr. GK states that complainant
was “in a state of good emotional and physical health until work-related
harassment that resulted in mixed symptoms of anxiety and depression.”
Dr. GK’s diagnosis was adjustment disorder and mixed anxiety and
depression.
It should be noted, however, that neither physician opined that complainant’s symptoms were due to sexual harassment or retaliatory termination.
Such omissions are significant because in both her documentation submitted to the agency in support of her claim for damages, as well as in her statement on appeal, complainant has consistently stated that a portion of her emotional harm stems from being reinstated to work under the same supervisor<2> (S 1: female) who retaliated against her by issuing the letter of termination, in addition to being subjected to other forms of stress upon her return to work. Indeed complainant filed a claim with the Office of Worker’s Compensation Programs on October 29, 1996 claiming depressive disorder due to stress.
As supportive evidence for this claim she included correspondence from Dr. TA, dated December
6, 1996, in which her symptoms are attributed to “being returned to the same work environment.” Complainant further states on appeal before
this Commission that “the harassment continued upon my return to work
in October 1996.” Such evidence indicates that some of complainant’s
harm was incurred long after the agency’s discriminatory acts.
In her Formal Complaint, complainant reported feelings of depression,
excessive worrying, head pains, headaches, nosebleeds, nervousness,
restricted associations, financial strife, loss of credit, and marital
hardship. She essentially repeats these symptoms in her claim for
damages to the agency. On appeal she states that she experienced
“problems with concentrating, anxiety attacks, moodiness, crying spells,
hostile temperament, and mental anguish,” and that “these factors were
all a result of the sexual harassment I experienced.” We also note that
the evidence indicates that due to the agency’s discriminatory actions,
complainant was separated from the agency for over a year and a half
before being reinstated.
Several Commission decisions have addressed compensatory damages in
cases similar to complainant’s. See Bever v. United States Department
of Agriculture, EEOC Appeal No. 01953949 (October 31, 1996) ($15,000.00
awarded for situational anxiety, uncontrolled crying, weight loss and
a diagnosis of Depression); Campbell v. United States Postal Service,
EEOC Appeal No. 01961474 (September 10, 1999) ($20,000.00 awarded
for continuous and long-lasting emotional and physical distress, with
difficulty sleeping, frequent anxiety, crying episodes, headaches and
nosebleeds, causing complainant to decline most overtime work and take
sick and annual leave to escape the harassment); Terrell v. Department
of Housing and Urban Development, EEOC Appeal No. 01961030 (October
25, 1996) RTR Denied, EEOC Request No. 05970336 (November 20, 1997)
($25,000.00 awarded for sleep problems, frequent crying, weight loss,
depression, embarrassment, mental anguish, loss of both self-esteem and
enjoyment of life, and disruption of complainant’s relationships with his
wife, family, and friends, lasting approximately two and a half years,
but mitigated by evidence that other factors unrelated to agency’s
discrimination contributed to complainant’s distress);
In view of the above, we find the agency’s award of $8,000.00 insufficient
to compensate complainant for her pain and suffering. In considering
the appropriate award in this case, however, we note that some of
complainant’s evidence of harm relates to incidents that occurred long
after the events at issue in this case. We therefore find that the
evidence supports an award of $20,000.00. This amount takes into account
the severity and the likely duration of the harm done to complainant
by the agency’s action. The Commission further notes that this amount
meets the goals of not being motivated by passion or prejudice, not being
“monstrously excessive” standing alone, and being consistent with the
amounts awarded in similar cases. See 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)); US EEOC v. AIC
Security Investigations, Ltd., 823 F.Supp. 573, 574 (N.D. Ill 1993).
Pecuniary Expenses
The agency found that complainant failed to establish a nexus between
much of the claimed medical expenses and the agency’s discrimination.
These disallowed expenses included treatment for prenatal care, the
delivery of complainant’s child, and the repair of her son’s hernia.
On appeal, complainant has not shown that such disallowed expenses were
related to the agency’s discrimination. Accordingly, we affirm the
agency’s denial of expenses for such treatment.
The agency also denied the full $375.00 for treatment received from
Dr. GK and $1620.00 for treatment received from Dr. TA on the grounds
that such treatment was covered by complainant’s health insurance.
We note, however, that in Wallis, the Commission held that it will apply
the “collateral source” rule in compensatory damages cases: sources of
funds collateral to the defendant may not be used to offset the financial
liability of the defendant. EEOC Appeal No. 01950510. Health insurance,
even where funded by agency contributions, is deemed a collateral source
in that the agency was not seeking to insure itself against injury to
the employee caused by discrimination. Id. Double recovery is not an
issue, because complainant’s health insurer may recover from her the
monies it expended on her behalf. See Ward-Jenkins v. Department of the
Interior, EEOC Appeal No. 01961483 (March 4, 1999.) Here, as in Wallis,
complainant would be entitled to recover the full amount of the fees
charged for any medical services she received in connection with the
injury caused by the sexual harassment and the retaliatory termination,
notwithstanding that any or all of those fees have been covered by her
health insurance. We note further, however, that the evidence shows that
the medical treatment complainant received was at least partly related
to stress that has not been shown to be related to the agency’s proven
discriminatory acts. We therefore find that the agency is liable for
half of the medical expenses paid to Drs. GK and TA. Thus, the agency
shall pay $187.50 in medical expenses for treatment received from Dr. GK,
and $810.00 in medical expenses for treatment received from Dr. TA,
for a total of $997.50 in past pecuniary expenses.
Attorney’s Fees and Costs
The agency denied complainant’s claim for fees and costs in the amount
of $10,920.00 for services performed by PS on the grounds that PS is
not a licensed attorney, and that, even assuming arguendo he is an
attorney, he did not submit a fee petition attesting to his hourly rate
and attesting to the prevailing hourly rate in the geographic area,
nor did he submit an itemization of his services, as required by 29
C.F.R. § 1614.501(e)(2)(i). On appeal, complainant agrees that PS is not
an attorney, but maintains he is nevertheless entitled to compensation
for the work he performed on her behalf. We note, however, that under
the regulations administered by this Commission, attorney’s fees are
only payable for the services of members of the Bar and law clerks,
paralegals, or law students under the supervision of members of the Bar.
C.F.R. § 1614.501(e)(iii). The regulations make no provision for payment
of fees for representation performed by laypersons. See §1614.501(e).
Accordingly, the agency’s denial of fees to PS is affirmed.
The agency also denied all but $437.50 of the $4,096.75 claimed for work
performed by RP, on the grounds that the work performed was unnecessary
and produced no discernible result for complainant. In this regard,
the agency pointed out that a union official assisted complainant
at the hearing before the AJ and that RP did not become involved
in the case until after the AJ’s hearing that found discrimination.
The agency further noted that it was PS who assisted complainant with
her appeal to the Commission and that some of the hours claimed by RP
occurred during a time when no effort was required in connection with
the complaint since the appeal had already been filed and a decision had
yet to be issued. The agency next argues that any research claimed by
RP should be disallowed since it involved irrelevant state case law and
was only offered after we issued our decision finding discrimination,
and further, that RP’s August 14, 1999 submission of 1.25 hours to read
a law review article concerning AJ’s authority at hearings should be
disallowed since this occurred after the favorable AJ hearing issued on
June 17, 1999. Finally, the agency argues that much of the remainder
of RP’s time consisted of reviewing letters from complainant which RP
did not establish were related to the instant complaint.
We note that RP’s fee petition states that his hourly rate is $175.00
an hour, and lists a total of 23.41 hours. On appeal he requests an
additional 11.75 hours which he identifies as “time expended in dealing
with the [agency’s] improper denial . . . for a total of $6,123.25.” We
find initially that RP’s hourly rate is reasonable. Given that RP began
his representation of complainant only after the AJ issued her decision
finding discrimination, we note that 23.41 hours is not an unreasonable
amount of time to spend representing complainant. Reviewing RP’s fee
petition, however, we find that many of the items claimed were unnecessary
or irrelevant given the status of complainant’s claim during the period RP
acted as her representative. Furthermore we find it patently unreasonable
for RP to claim 11.75 hours to prepare a less than three-and-a half page
appeal of the agency’s denial of attorney’s fees. Where the hours or
work claimed is found to be unreasonable, “it is unnecessary to perform
a detailed analysis to determine precisely the number of hours or types
of work for which no compensation is allowed; rather, it is appropriate
to reduce the hours claimed by an across-the-board reduction.” Finch v
United States Postal Service, EEOC Request No. 05880051 (July 15, 1988).
Accordingly, we reduce RP’s fee petition by half, from a total of 35.16
hours to 17.58 hours. We find that RP is therefore entitled to attorney’s
fees in the amount of $3,076.50.
Therefore, after a careful review of the record, including complainant’s
contentions on appeal, the agency’s response, and arguments and evidence
not specifically addressed in this decision, we affirm the FAD in part
and reverse the FAD in part.
ORDER
(1) Within forty five (45) days of this decision becoming final, the
agency, if it has not already done so, shall remove the fourteen-day
suspension from complainant’s employment records.
(2) Within forty five (45) days of this decision becoming final, the
agency, if it has not already done so, shall award complainant the
appropriate amount of backpay, with interest, for the fourteen-day
suspension she served.
(3) Within sixty (60) days of this decision becoming final, the agency,
if it has not already done so, shall pay complainant $20,000.00 in
non-pecuniary compensatory damages, and $997.50 in past pecuniary
expenses.
(4) It is unclear whether the agency has already paid the $437.50 in
attorney’s fees it agreed to pay in its correspondence dated December
23, 2002. If it has already paid this amount, within (60) days of this
decision becoming final, the agency shall pay an additional $2639.00 in
attorney’s fees. If the agency has not already paid $437.50, the agency,
within (60) days of this decision becoming final, shall pay $3076.50 in
attorney’s fees.
(5) Within (60) days of this decision becoming final, the agency,
if it has not already done so, shall train the Manager, Supervisor,
and the two management officials who failed to take action once being
put on notice that complainant was being harassed in the area of sexual
harassment under Title VII, and how to avoid perpetrating such harassment.
This training shall include a segment regarding how to recognize and
prevent sexual harassment, steps that should be taken when an employee
complains of such harassment, and how to avoid retaliating against an
employee who complains of such harassment.
(6) If it has not already done so, the agency shall consider taking
disciplinary action against the Manager and the Supervisor. The agency
shall report its decision. If the agency decides to take disciplinary
action, it shall identify the action taken. If the agency decides not
to take disciplinary action, it shall set forth the reason(s) for its
decision not to impose discipline.
(7) 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
that the correction action has been implemented.
