Kelliann Dixon v. Department of Justice (Federal Bureau of Prisons) 07A50001 04-22-05 . Kelliann Dixon, Complainant, v. Alberto Gonzales, Attorney General, Department of Justice (Federal Bureau of Prisons), Agency. Appeal No. 07A50001 Agency No. P-2003-0061 Hearing No. 380-2003-08216x DECISION On September 3, 2004, the Department of Justice (Federal Bureau of Prisons) (agency) filed an appeal from the decision of the Administrative Judge (AJ), dated July 19, 2004. The agency accepted the finding of the AJ that it discriminated against Kelliann Dixon (complainant) based on sex when it failed to promote her in September 2002, but challenged certain provisions of the relief ordered by the AJ. The agency's appeal is timely filed (see 29 C.F.R. § 1614.402(a)) and is accepted in accordance with 29 C.F.R. § 1614.405. Complainant claimed discrimination based on sex when she was not selected for one of two positions for Lieutenant, GS-9, in favor of two males, ED and EH.<1> Following an investigation, complainant requested a hearing before an EEOC Administrative Judge (AJ). The AJ held a hearing in June 2004, and on July 19, 2004, she issued a decision, finding that the agency discriminated against complainant based on sex and awarding relief, including retroactive promotion to the position, back pay, compensatory damages, training, and attorney's fees and costs.<2> Among other things, the AJ found that complainant had an outstanding record and was rated the best qualified candidate, and had higher ratings, superior evaluations, and longer service than EH. The AJ found that the agency's articulated reasons for its selection decisions were contradictory and "neither legitimate or credible." She determined that testimony by the Warden (W) and Associate Warden (AW) was not credible, pointing out numerous instances where they contradicted each other and other agency managers. Finally, the AJ found that the agency's reasons were not sufficiently specific, clear, or individualized, that complainant's qualifications were plainly superior to at least one selectee, and that the testimony of agency managers was contradictory and not credible. Pursuant to 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 regarding whether or not discriminatory intent existed is a factual finding. See Pullman-Standard Co. v. Swint, 456 U.S. 273, 293 (1982). After an independent review of the record and hearing testimony in its entirety, including consideration of all statements submitted on appeal, it is the decision of the Commission that the AJ accurately stated the facts and correctly applied the pertinent principles of law and that her decision is supported by substantial evidence in the record. The agency's Final Order, while asserting that it presented legitimate, nondiscriminatory reasons for the selections of ED and EH, agreed that complainant demonstrated pretext, since her qualifications were plainly superior to EH, her evaluations and ratings were higher, and she received more awards, completed more training, and served more times in acting positions. In addition, the agency noted the AJ's credibility determinations as further support for the finding of discrimination based on sex. While the agency accepted the AJ's finding of discrimination, it disagreed with some of the relief awarded, i.e., the amount of non-pecuniary compensatory damages, the extent of training for managers and supervisors, and the sum of attorney's fees and costs. We address each disputed item seriatim. Compensatory Damages The AJ found that complainant provided sufficient proof to establish that she experienced emotional harm and mental distress as a result of the agency's action and that her testimony and that of her partner were credible to demonstrate the impact of the discrimination on her personal and professional life. In her order, the AJ awarded complainant non-pecuniary compensatory damages of $25,000. In its Final Order, the agency found that half of the amount was not supported by the record and that the severity and duration of the harm in comparison to similar cases supported a lesser amount of $12,5000.<3> The agency contended that the AJ's award was 'excessive' and that the absence of medical evidence in support required a smaller award. It cited to several cases where no medical evidence was presented, and the Commission awarded $10,000 or less in non-pecuniary damages.<4> The Commission, however, has held that evidence from a health care professional is not a prerequisite for an award of compensatory damages for emotional distress.<5> Williamson v. Department of the Treasury, EEOC Appeal No. 07A30116 (September 27, 2004); Lawrence v. USPS, EEOC Appeal No. 01952288 (April 18, 1996); Bernard v. Department of Veterans Affairs, EEOC Appeal No. 01966861 (July 18, 1998); Carpenter v. Department of Agriculture, EEOC Appeal 01945652 (July 17, 1995). Further, none of the cases cited by the agency raised the lack of medical evidence as a detriment or shortcoming of the claim; instead, the awards were based on facts and reasons unique to each case. In fact, the Commission's awards of non-pecuniary damages for emotional distress in similar cases have been $20,000 and more, even when no medical evidence was presented. See, i.e., Johnson v. USPS, EEOC Appeal No. 07A30112 (April 14, 2004), RTR denied, EEOC Request No. 05A40800 (June 8, 2004) ($22,000 for pain and suffering and exacerbation of personal difficulties when not re-appointed because of reprisal); Wilson v. Department of Justice, EEOC Appeal No. 01A23614, RTR denied, EEOC Request No. 05A40510 (February 3, 2004) ($25,000, suffered depression and stress due to agency action); Morales v. Department of Veterans Affairs, EEOC Appeal No. 01A23996 (September 24, 2003) ($30,000 based on testimony from complainant, husband, and two co-workers when she was not promoted); and Holliday v. Department of Agriculture, EEOC Appeal No. 01A03047 (June 12, 2002) ($50,000 based on testimony of complainant, relatives, and co-workers).<6> For these reasons, we reject the agency's argument that the lack of medical evidence requires a diminution of the award, and affirm the AJ's award of $25,000 for non-pecuniary compensatory damages. Attorney's Fees and Costs The AJ awarded complainant a total amount of $43,472 in attorney's fees and $2,805.57 in costs. These amounts were supported by daily billings, receipts, and ledgers of costs submitted by complainant's counsel. The agency sought reduction in the amount of attorney's fees and costs. First, it argued for reduction of 6.7 hours at $275 per hour as amounts spent on activity related to complainant's bankruptcy filing. It also objected to a charge for travel on April 1, 2003, billed at the full rate, suggesting that travel for one hour be paid at $137.50 (one-half of the standard hourly rate). Finally, the agency rejected the claim for all costs, since no receipts were submitted. Complainant's counsel explained that she did not represent complainant in her bankruptcy filing but was required to contact the Bankruptcy Court, since complainant's extant EEO complaint, which was part of complainant's 'bankruptcy estate,' belonged, in effect, to the Bankruptcy Trustee, and counsel and complainant could not proceed without the permission of the Trustee. Counsel included a copy of an affidavit filed in the Bankruptcy Court for the Western District of Washington stipulating that she would be paid at her regular hourly rate from awards generated from the instant litigation. We find that counsel's explanation is true and reasonable and that the agency did not present probative evidence to demonstrate otherwise. See U.S. v. Whiting Pools, Inc., 462 U.S. 198, fn. 9 (1983). With regard to billing for travel time, we agree with the agency and will reduce the award of attorney's fees by $137.50. As to reimbursement for costs, the record contains documentation for the major costs, e.g., court reporters, transcripts, and exhibit preparation, in the amount of $2,134.20. The remaining $671.37 is assigned to routine costs incurred in the daily operation of business, including copy costs, postage, fax and telephone, parking, and mileage charges, that do not usually generate a receipt. Other than an across-the-board refutation of costs, the agency has not shown that any cost was unreasonable or not accrued. Given the extent of counsel's activity over 16 months, we find that she has sufficiently set out her costs. See Hafiz v. Department of Defense, EEOC Petition No. 04960021 (July 11, 1997). Training Requirement and Implementation Finally, the agency objected to the portion of the AJ's Order requiring all supervisors and managers to attend EEO training, with additional substantial additional training for W and AW. We agree with the agency that the AJ's Order in this respect was somewhat broad and will modify the requirement for EEO training. In addition, the agency objected to the AJ's order to promote complainant within 30 days. In view of the passage of time, we see no reason to delay complainant's promotion further and will require immediate promotion. CONCLUSION Accordingly, the decision of the AJ is AFFIRMED, as modified herein. The agency is directed to comply with the Order, below. ORDER (D0900) To the extent that it has not already done so, the agency is ordered to take the following remedial action: A. Within thirty (30) days of the date this decision becomes final, the agency shall instate complainant to the position of Lieutenant, GS-9, effective September 1, 2002, and including all benefits, step increases, and promotions that have been conferred on either of the two males selected for the position in September 2002. B. The agency shall determine the appropriate amount of back pay, interest, and all other benefits due complainant, pursuant to 29 C.F.R. § 1614.501, no later than sixty (60) calendar days after the date this decision becomes final. The complainant shall cooperate in the agency's efforts to compute the amount of back pay, interest, and benefits due, and shall provide all relevant information requested by the agency. If there is a dispute regarding the exact amount of back pay and/or benefits, the agency shall issue a check to the complainant for the undisputed amount within sixty (60) calendar days of the date the agency determines the amount it believes to be due. The complainant may petition for enforcement or clarification of the amount in dispute. The petition for clarification or enforcement must be filed with the Compliance Officer, at the address referenced in the statement entitled "Implementation of the Commission's Decision." C. Within thirty (30) days of the date this decision becomes final, the agency shall pay complainant $25,000 as non-pecuniary compensatory damages, and $800 in pecuniary damages. D. Within sixty (60) days of the date this decision becomes final, the agency shall provide six (6) hours of training to the Warden and Associate Warden and four (4) hours to the Regional Director, if they remain employed by the agency, with regard to their responsibilities and obligations under federal equal employment opportunity laws and regulations to insure nondiscrimination for all employees. Half of the training shall place special emphasis on gender and sex-based discrimination. E. The agency shall consider appropriate disciplinary action against the Warden and the Associate Warden and 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. F. Within thirty (30) days of the date this decision becomes final, the agency shall pay counsel for complainant $43,334.50 ($43,472 less $137.50) in attorney's fees and $2,805.57 in costs. G. 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 backpay and other benefits due complainant, and evidence that the corrective action has been implemented. Copies of all submissions to the Commission shall be sent to complainant and her representative. POSTING ORDER (G0900) The agency is ordered to post at its FDC-SeaTac 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. ATTORNEY'S FEES (H0900) If complainant has been represented by an attorney on appeal (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 (K0501) 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 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 (M0701) 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), 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 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 (S0900) You have the right to file a civil action in an appropriate United States District Court within ninety (90) calendar days from the date that you receive this decision. If you file a civil action, you must name as the defendant in the complaint the person who is the official agency head or department head, identifying that person by his or her full name and official title. Failure to do so may result in the dismissal of your case in court. "Agency" or "department" means the national organization, and not the local office, facility or department in which you work. If you file a request to reconsider and also file a civil action, filing a civil action will terminate the administrative processing of your complaint. RIGHT TO REQUEST COUNSEL (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 ___04-22-05_______________ Date NOTICE TO EMPLOYEES POSTED BY ORDER OF THE EQUAL EMPLOYMENT OPPORTUNITY COMMISSION AN AGENCY OF THE UNITED STATES GOVERNMENT This Notice is posted pursuant to an Order by the United States Equal Employment Opportunity Commission dated which found that a violation of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq., has occurred at this facility. Federal law requires that there be no discrimination against any employee or applicant for employment because of the person's RACE, COLOR, RELIGION, SEX, NATIONAL ORIGIN, AGE or DISABILITY with respect to hiring, firing, promotion, compensation, or other terms, conditions or privilege of employment. The Department of Justice, Federal Bureau of Prisons, FDC-Sea-Tac, supports and will comply with such Federal law and will not take action against individuals, because they have exercised their rights under the law. The agency found discrimination on the basis of sex, and it has remedied the employee affected by the Commission's finding of sex discrimination by placement in the position; payment of back pay, compensatory damages, and attorney's fees; and requiring training of managers involved in the selection decision. The Department of Justice, Federal Bureau of Prisons, FDC-Sea-Tac, will ensure that officials responsible for personnel decisions and terms and conditions of employment will abide by the requirements of all federal equal employment laws and will not subject employees to discrimination based on sex. The Department of Justice, Federal Bureau of Prisons, FDC-Sea-Tac, will not, in any manner, restrain, interfere, coerce, or retaliate against any individual who exercises his or her right to oppose practices made unlawful by, or who participated in proceedings pursuant to, Federal equal employment opportunity law. Date Posted: Posting Expires: 1Complainant also alleged discrimination based on sexual orientation, but this claim was dismissed by the AJ as outside the purview of the Commission. 2Included in this amount are the AJ's supplemental awards of attorney's fees and costs in the amounts of $1,485, for June 2004, and $2,007.50 and $46.44 in costs, for July 2004. 3In its Explanation, the agency also suggested an award of no more than $3,000. 4The agency referred to Anderson v. Department of Transportation, EEOC Appeal No. 07A10058 (January 21, 2003); Jones v. Department of Defense, EEOC Appeal No. 01973551 (April 14, 2000); and, Ford v. Department of Veterans Affairs, EEOC Appeal No. 07A40065 (August 17, 2004). In addition, the agency argued conversely that, where medical evidence is presented, as in Chapparro v. Social Security Administration, EEOC Appeal No. 01A03785 (August 26, 2002), an award of $25,000 may be justified. 5See, generally, Compensatory and Punitive Damages Available Under Section 102 of the Civil Rights Act of 1991, EEOC Notice No. 915.002 (July 14, 1992). 6Also, the Commission has held that evidence from a medical provider is not a mandatory prerequisite for recovery of compensatory damages for mental and emotional distress. See Mayo v. Department of the Treasury, EEOC Request No. 05990302 (July 21, 2000).