Samuel R., Complainant, v. Robert McDonald, Secretary, Department of Veterans Affairs, Agency. Appeal No. 0120140216 Agency Nos. 200I-0508-2006102577 200I-0508-2007100364 DECISION On October 17, 2013, Complainant filed an appeal from the Agency's final decisions dated September 12, 2013 and September 30, 2013, concerning his equal employment opportunity (EEO) complaint alleging employment discrimination in violation of Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq. The Commission deems the appeal timely and accepts it pursuant to 29 C.F.R. § 1614.405(a) BACKGROUND At the time of events giving rise to this complaint, Complainant worked as an Air Conditioning Equipment Mechanic, WG-10, at the Agency's Atlanta Medical Center in Decatur, Georgia. In 2001, Complainant suffered an injury on the job when he was exposed to unsafe levels of bacteria. As a result, due to this incident, Complainant suffers from asthma, which causes difficulty breathing when he is exposed to mold, dust, bacteria, and harsh chemicals. On December 18, 2005, and on April 26, 2006, Complainant submitted requests for reasonable accommodation to the EEO manager at the facility. Complainant requested, as an accommodation for his asthma, that the amount of time he worked on air handlers be reduced from seven hours to three hours per day. Subsequently, a Reasonable Accommodation Review Committee (RARC) was convened by the Agency to determine if it could accommodate Complainant. The RARC concluded, in a March 21, 2006, memorandum, that Complainant would not be able to safely work in his current position because there was no apparatus available to prevent him from inhaling toxic irritants while working on air conditioning equipment. As such, the RARC recommended that Complainant be moved to a new job. On July 10, 2006, and December 24, 2006, Complainant filed EEO complaints alleging that he was discriminated against on the bases of disability, age (58), and reprisal when: (1) He was denied reasonable accommodation for his disability. (2) He was subjected to harassment, when: (a) he was not allowed to have a key to access tools and parts, (b) his supervisor followed him around all day, (c) his supervisor only checked his work, and no other coworker's work, to see if his work was done correctly, (d) his service chief said that he would never get any training, (e) he was never included as part of the team and never informed of what was happening in die service, (f) his supervisor threatened to change his shift so he could do more cleaning, (g) he was asked on a weekly basis when he was going to retire, (h) he was denied overtime unless it involved cleaning dirty air handlers, (i) he was denied access to the Heating, Ventilation, Air Conditioning (HVAC) trouble shooting computer, (j) he was not allowed to work with a contractor or coworkers on HVAC contracts or equipment, and (k) he was assigned more cleaning of dirty equipment after protesting about a coworker who was reassigned to answer the telephone. (3) He was not selected for the position of Electronic Mechanic because he did not rank high enough to be referred for final consideration. At the conclusion of the investigation into his complaint, Complainant was provided with a copy of the report of investigation and notice of his right to request a hearing before an EEOC Administrative Judge (AJ). Complainant timely requested a hearing. Over the Complainant's objections, the AJ assigned to the case issued a decision by summary judgment in favor of the Agency on September 17, 2008. The Agency subsequently issued a final order adopting the AJ's finding that Complainant failed to prove that he was subjected to discrimination as alleged. Complainant appealed the decision. In EEOC Appeal No. 0120090266, we found that the AJ's issuance of a decision without a hearing was appropriate because there was no genuine issue of material fact. However, we found that the AJ erred in finding in favor of the Agency and that Complainant was denied reasonable accommodation for his disability. The decision held that Complainant established that the position of Motor Vehicle Operator (filled on April 26, 2006) was a vacant position for which he was qualified at the time he sought accommodation. As such, the decision concluded that the Agency should have reassigned him to that position as an accommodation to his disability. As remedy, the decision ordered the Agency to conduct a supplemental investigation pertaining to Complainant's entitlement to compensatory damages. The decision also ordered the Agency to provide Complainant with fees and costs for his attorney (Attorney). The Agency's request for reconsideration was denied. Petted v. Dep't of Veterans Affairs, EEOC Request No. 0520140240 (Dec. 7, 2012). The decision also determined that the evidence of record did not establish that Complainant was subjected to discriminatory harassment or disparate treatment when he was not selected for the Electronic Mechanic position. Id. On February 19, 2013, the Agency began its supplemental investigation regarding Complainant's claim for compensatory damages. Complainant had requested $175,000 to $200,000 in non-pecuniary damages. Complainant provided an affidavit in which he stated that the denial of reasonable accommodation was very humiliating for him and caused him to be depressed. He also noted that he was having sleeping problems, frequently became angry, blew up at people, and avoided going out to dinner with his wife. Complainant indicated that he began having stomach problems after the denial of reasonable accommodation and was prescribed medication for it. Complainant's wife provided an affidavit in support of her husband's claim for compensatory damages in which she stated that Complainant's temper would flare up, they stopped going out to dinner, he began to drink and strains developed in their relationship. She asserted that Complainant became withdrawn and isolated. On September 30, 2013, the Agency issued its final decision on Complainant's entitlement to compensatory damages. The Agency found that Complainant was only entitled to non-pecuniary damages in the amount of $30,000. On May 13, 2013, Complainant's Attorney submitted a claim for fees and costs. The submission requested fees for 76 hours expended at a rate of $375 per hour. The Agency provided a copy of its Attorney's fee and cost worksheet. The Agency subtracted hours for preparation and discussion with Complainant regarding disability retirement and the fee petition. Therefore, the Agency worksheet reduced the hours to 70 hours. The Agency then further reduced the fees by one-third for unsuccessful claims. As such the Agency calculated that the Attorney should be paid for 46.9 hours at a rate of $375 per hour. On September 12, 2013, the Agency issued its decision regarding fees and costs to be awarded to the Attorney. The Agency awarded $17,587.50 for representation of Complainant and $1,425.00 for 3.8 hours expended in preparation of the fee petition, for a total of $19,012.50. There was no request for costs submitted by the Attorney. On October 17, 2013, Complainant filed the instant appeals on both the compensatory damages decision and the attorney's fees decision.1 ANALYSIS AND FINDINGS As this is an appeal from a decision issued without a hearing, pursuant to 29 C.F.R. § 1614.110(b), the Agency's decision is subject to de novo review by the Commission. 29 C.F.R. § 1614.405(a). See Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614, at Chapter 9, § VI.A. (November 9, 1999) (explaining that the de novo standard of review "requires that the Commission examine the record without regard to the factual and legal determinations of the previous decision maker," and that EEOC "review the documents, statements, and testimony of record, including any timely and relevant submissions of the parties, and . . . issue its decision based on the Commission's own assessment of the record and its interpretation of the law"). Compensatory Damages As an initial matter, Complainant argued that he and the Attorney were not provided with a copy of the compensatory damages investigation and was not given an opportunity to sign the affidavit that the Investigator purported to create following the interview. A review of the record showed that the Investigator met with Complainant and the Attorney and conducted an interview which was transcribed. The transcript of the interview indicated that both Complainant and the Attorney were present and provided statements to the Investigator. The Investigator should have provided a copy of the statement to Complainant and the Attorney for review. However that did not occur. However, the record shows that there was an additional statement submitted that was signed by Complainant, dated and notarized. In addition, the investigation included a copy of an affidavit provided and signed by Complainant's wife. The remaining documents in the report of investigation include medical notes, medical bills and a statement from the Attorney. All these documents were submitted by the Attorney to the Investigator. Therefore, we find that while Complainant should have been provided with a copy of the transcript of his own testimony, all the other documents in the report of investigation originated from Complainant. Therefore, we find that Complainant has failed to establish that he was prejudiced by the Agency error in not providing him with a copy of the report or allowing him to sign the transcript of the interview. Pursuant to section 102(a) of the Civil Rights Act of 1991, a complainant who establishes his or her claim of unlawful discrimination may receive, in addition to equitable remedies, compensatory damages for past and future pecuniary losses (i.e., out of pocket expenses) and non-pecuniary losses (e.g., pain and suffering, mental anguish). 42 U.S. C. § 1981a(b)(3). For an employer with more than 500 employees, such as the agency, the limit of liability for future pecuniary and non-pecuniary damages is $300,000. Id. The particulars of what relief may be awarded, and what proof is necessary to obtain that relief, are set forth in detail in EEOC Notice No. 915.002, Compensatory and Punitive Damages Available Under Section 102 of the Civil Rights Act of 1991 (July 14, 1992). Briefly stated, the complainant must submit evidence to show that the agency's discriminatory conduct directly or proximately caused the losses for which damages are sought. Id. at 11-12, 14; Rivera v. Dep't of the Navy, EEOC Appeal No. 01934157 (July 22, 1994). The amount awarded should reflect the extent to which the agency's discriminatory action directly or proximately caused harm to the complainant and the extent to which other factors may have played a part. EEOC Notice No. N 915.002 at 11-12. The amount of non-pecuniary damages should also reflect the nature and severity of the harm to the complainant, and the duration or expected duration of the harm. Id. at 14. In Carle v. Dep't of the Navy, the Commission explained that "objective evidence" of non-pecuniary damages could include a statement by the complainant explaining how he or she was affected by the discrimination. EEOC Appeal No. 01922369 (Jan. 5, 1993). Statements from others, including family members, friends, and health care providers could address the outward manifestations of the impact of the discrimination on the complainant. Id. The complainant could also submit documentation of medical or psychiatric treatment related to the effects of the discrimination. Id. Non-pecuniary damages must be limited to the sums necessary to compensate the injured party for the actual harm and should take into account the severity of the harm and the length of the time the injured party has suffered from the harm. Carpenter v. Dep't of Agriculture, EEOC Appeal No. 01945652 (July 17, 1995). Pecuniary Damages Complainant asserted on appeal that he is entitled to approximately $10,782 in pecuniary damages for the medical bills and expenses allegedly incurred due to an exacerbation of his medical conditions when the Agency failed to provide him a reasonable accommodation. Our previous decisions found that Complainant was subjected to the unlawful denial of reasonable accommodation beginning in November 2005. Complainant's Attorney argued that Complainant continued to clean dirty air handlers until April 2006, which exacerbated his medical condition.2 As a result of the Agency's actions, Complainant asserts he had to apply for disability retirement, retiring in February 2007. However, Complainant's request for non-pecuniary damages was for medical expenses incurred after his retirement. Specifically, he claimed $5,521.94 for prescription medications3 for the year 2011, four years after his retirement. He also claimed $850 for services by his psychiatrist in prescribing medication. He also claims $1690 in expenses from a pulmonary specialist and $2,720.38 for medical care by a primary care physician. All claimed medical services were rendered between October 2008 and September 2011. In addition to the fact that none of Complainant's claimed medical expenses were for the period prior to his retirement when he was being subjected to the Agency's failure to accommodate, his medical documentation indicates that his medical condition improved considerably following his disability retirement. Moreover, the medical notes from October 2008 to September 2011 do not discuss any connection to the Agency's discriminatory actions. Thus, the documentation provided by Complainant does not establish a sufficient link between the medical services rendered from October 2008 to September 2011 and the Agency's discriminatory actions. Therefore, we affirm the Agency's determination that Complainant has not established that he is entitled to pecuniary damages for medical expenses. Non-pecuniary Damages The Commission finds that the Agency properly determined that Complainant established a nexus between the alleged harm and discrimination. Therefore, the only issue before the Commission is the Agency's determination that Complainant was entitled to $30,000 in non-pecuniary damages. On appeal, Complainant asserted that he is entitled to an amount in excess of $175,000. During the supplemental investigation, Complainant stated that he experienced humiliation and depression as a result of the Agency's discriminatory action. He also stated that after the Agency failed to act on his request for accommodation he developed stomach pain, irritable bowel syndrome, shingles, sleep disturbances, anxiety and depression. Complainant contended that his medical documentation showed that his asthma worsened to the point of needing a disability retirement due to continued exposure to toxic irritants at work. Complainant also described the stress of having to live on a reduced income due to his retirement. Complainant's wife also provided a statement supporting her husband's claim that he became depressed and despondent, with little energy or interest in life, following the Agency's failure to accommodate him. She stated that he stopped hiking and riding his bicycle, no longer wanted to go out to restaurants, and began to drink more. She added that Complainant's temper would flare and their marriage became strained. She stated that although Complainant's health conditions and their marriage improved once he retired, he still blamed himself for their reduced standard of living. In justifying its award of $30,000, the Agency determined that many of the medical conditions attributed by Complainant to the failure to accommodate were actually pre-existing. The Agency noted that Complainant acknowledged that he was diagnosed with asthma in 2001, with major depression in 2003, and with sleep disorders five or six years before he requested accommodation. However, the Agency conceded that Complainant should be compensated for any aggravation of these pre-existing conditions due to the failure to accommodate. The Agency also found that stressors other than the failure to accommodate, including the perception that he was being harassed, dealing with a variety of health problems for both himself and his wife, and the adjustment to retirement,4 also contributed to the non-pecuniary harms described by Complainant. We agree with the Agency's reasoning that it cannot be held responsible for the full extent of the harm described by Complainant and his wife. It is clear that the primary medical conditions described by Complainant - major depression, breathing problems, shingles and sleep apnea - all were diagnosed prior to his request for an accommodation. Therefore, we are unpersuaded that Complainant's request for $200,000 in damages should be granted. However, it is also clear from the record that these conditions, especially the breathing problems and depression, were exacerbated by the Agency's failure to accommodate Complainant's disability. The Commission applies the principle that "a tortfeasor takes its victims as it finds them." Wallis v. United States Postal Service, EEOC Appeal No. 01950510 (November 13, 1995) (quoting Williamson v. Handy Button Machine Co., 817 F.2d 1290, 1295 (7th Cir. 1987)). What the record does show is that the Agency, despite the recommendations of its own reasonable accommodation committee, failed to search for a suitable reassignment for Complainant and kept him working for about five months at the position where he continued to be exposed to toxic irritants. Both physical and psychological harm resulted from this inaction, especially in light of Complainant's already fragile health. We do not find that $30,000 is sufficient to compensate Complainant for this harm proximately caused by the Agency's actions. Rather, we conclude that an award of $100,000 in non-pecuniary damages more appropriately compensates Complainant for the harm caused by the Agency. We find this amount is more consistent with the amount awarded in similar cases. See Franklin v. United States Postal Service, EEOC Appeal Nos. 07A00025 and 01A03882 (January 19, 2001) (awarding of $150,000 where complainant and his wife testified that he became withdrawn, depressed, embarrassed, humiliated, lost self esteem, and experienced financial difficulties, after he was denied a reasonable accommodation); Durinzi v. United States Postal Service, EEOC Appeal No. 01A41946 (July 28, 2005) (awarding $120,000 in pecuniary damages where Complainant was denied reasonable accommodation which prevented her from returning to her normal work duty and she provided evidence of the Agency's actions severely impacting her physical, emotional, mental, spiritual, and financial well-being); Holland v. Social Security Administration, EEOC Appeal No. 01A01372 (Oct. 2, 2003) (award of $100,000 where the statement of complainant and his psychiatrist showed that he experienced a severe emotional injury when he continued to experience feelings of worthlessness and low self-esteem after he was denied a reasonable accommodation). Therefore, we modify the Agency's final decision and award Complainant $100,000 in non-pecuniary damages. Attorney's Fees and Costs By federal regulation, the 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. EEOC Regulation 29 C.F.R. § 1614.501(e)(1)(ii). To determine the proper amount of the fee, a lodestar amount is reached by calculating the number of hours reasonably expended by the attorney on the complaint multiplied by a reasonable hourly rate. Blum v. Stenson, 465 U.S. 886 (1984); Hensley v. Eckerhart, 461 U.S. 424 (1983). There is a strong presumption that the number of hours reasonably expended multiplied by a reasonable hourly rate, the lodestar, represents a reasonable fee, but this amount may be reduced or increased in consideration of the degree of success, quality of representation, and long delay caused by the agency. 29 C.F.R. § 1614.501(e)(2)(ii)(B). The circumstances under which the lodestar may be adjusted are extremely limited, and are set forth in Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), 11-7. (November 9, 1999). A fee award may be reduced: in cases of limited success; where the quality of representation was poor; the attorney's conduct resulted in undue delay or obstruction of the process; or where settlement likely could have been reached much earlier, but for the attorney's conduct. Id. The party seeking to adjust the lodestar, either up or down, has the burden of justifying the deviation. Id. at p. 11-8. We note that the Agency does not contest the Attorney's hourly rate of $ 375. As such, we discern no reason to disturb the Agency's decision in that regard. As for the hours expended, the Attorney asserted that there was a mathematical error and the correct number of hours expended was 75.7 hours. The Agency excluded 2.2 hours from the fee petition for it involved the Attorney's involvement in Complainant's disability retirement. The Attorney argued that the disability retirement was directly related to the case at hand. As noted above, the fees for the Attorney are awarded for hours reasonably expended by the attorney on the complaint. The 2.2 hours listed in the fee petition clearly state that these hours were used for Complainant's disability retirement submission, not the EEO complaint. As such, we find that the Agency properly reduced the hours expended by 2.2 hours. As such, we find that the hours expended by the Attorney on the matter totaled 73.5 hours.5 The Agency reduced the Attorney's hours by 33% noting that Complainant only prevailed on his claim of denial of reasonable accommodation. The authorities relied upon by the Agency in support of a more liberal standard of lodestar adjustment have been superceded by MD-110, and are no longer relied upon by the Commission. MD-110 states that fee awards may be reduced in cases of limited success, poor quality of representation, or delays in resolution caused by the Attorney's conduct. Id. The Agency has not shown that any of these circumstances were present in this case. Its reduction of Complainant's fee award was therefore inappropriate. Therefore, based on the hourly rate of $ 375.00 for the Attorney and 73.5 hours expended on the compliant, we find that the proper award for fees for the Attorney is $ 27,562.50, not the $ 19,012.50 stated in the Agency's final decision. CONCLUSION Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we MODIFY the Agency's final decisions regarding compensatory damages and attorney fees. ORDER To the extent it has not already done so, the Agency, with sixty (60) days of the date this decision becomes final, is ORDERED: 1. To provide Complainant $27,562.50 in attorney's fees and costs. 2. To provide Complainant with $ 100,000 in non-pecuniary compensatory damages. 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 actions in accordance with this Order. ATTORNEY'S FEES (H0610) If Complainant has been represented by an attorney (as defined by 29 C.F.R. § 1614.501(e)(1)(iii)), he/she is entitled to an award of reasonable attorney's fees incurred in the processing of the complaint. 29 C.F.R. § 1614.501(e). The award of attorney's fees shall be paid by the Agency. The attorney shall submit a verified statement of fees to the Agency -- not to the Equal Employment Opportunity Commission, Office of Federal Operations -- within thirty (30) calendar days of this decision becoming final. The Agency shall then process the claim for attorney's fees in accordance with 29 C.F.R. § 1614.501. IMPLEMENTATION OF THE COMMISSION'S DECISION (K0610) 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 77960, Washington, DC 20013. The Agency's report must contain supporting documentation, and the Agency must send a copy of all submissions to the Complainant. If the Agency does not comply with the Commission's order, the Complainant may petition the Commission for enforcement of the order. 29 C.F.R. § 1614.503(a). The Complainant also has the right to file a civil action to enforce compliance with the Commission's order prior to or following an administrative petition for enforcement. See 29 C.F.R. §§ 1614.407, 1614.408, and 29 C.F.R. § 1614.503(g). Alternatively, the Complainant has the right to file a civil action on the underlying complaint in accordance with the paragraph below entitled "Right to File a Civil Action." 29 C.F.R. §§ 1614.407 and 1614.408. A civil action for enforcement or a civil action on the underlying complaint is subject to the deadline stated in 42 U.S.C. 2000e-16(c) (1994 & Supp. IV 1999). If the Complainant files a civil action, the administrative processing of the complaint, including any petition for enforcement, will be terminated. See 29 C.F.R. § 1614.409. STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0610) The Commission may, in its discretion, reconsider the decision in this case if the Complainant or the Agency submits a written request containing arguments or evidence which tend to establish that: 1. The appellate decision involved a clearly erroneous interpretation of material fact or law; or 2. The appellate decision will have a substantial impact on the policies, practices, or operations of the Agency. Requests to reconsider, with supporting statement or brief, must be filed with the Office of Federal Operations (OFO) within thirty (30) calendar days of receipt of this decision or within twenty (20) calendar days of receipt of another party's timely request for reconsideration. See 29 C.F.R. § 1614.405; Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at 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 77960, Washington, DC 20013. In the absence of a legible postmark, the request to reconsider shall be deemed timely filed if it is received by mail within five days of the expiration of the applicable filing period. See 29 C.F.R. § 1614.604. The request or opposition must also include proof of service on the other party. Failure to file within the time period will result in dismissal of your request for reconsideration as untimely, unless extenuating circumstances prevented the timely filing of the request. Any supporting documentation must be submitted with your request for reconsideration. The Commission will consider requests for reconsideration filed after the deadline only in very limited circumstances. See 29 C.F.R. § 1614.604(c). COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (R0610) 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 (Z0610) 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 from the Court that the Court appoint an attorney to represent you and that the Court also 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 with the Court 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 February 25, 2015 __________________ Date 1 Complainant has also filed a Petition for Enforcement regarding the Agency's calculation of back pay. This petition, EEOC Petition No. 0420140018, is still pending before the Commission. 2 Apparently, sometime in April 2006, management had Complainant perform clerical duties while it determined what to do with him. 3 The records submitted by Complainant show that his insurance covered $4,197.63 of these prescriptions, leaving him responsible for $1,324.31. 4 Complainant did not raise an allegation of constructive discharge in his complaints. In EEOC Appeal No. 0120090266, Complainant raised this allegation for the first time on appeal and we referred him to EEO counseling. See id., footnote 1. Complainant cannot recover damages for a constructive discharge unless he file a complaint and prevails on the claim. 5 We note that the Attorney seeks additional hours for time spent on getting compliance with the Commission's orders regarding back pay and submitting a Petition for Enforcement. The Petition for Enforcement is currently pending with the Commission as EEOC Petition No. 0420140018. Any request for attorney's fees associated with the Attorney's work regarding back pay and petition should be made therein. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ 2 0120140216 U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 2 0120140216