Patricia Kann v. Department of Interior 07A50039 September 28, 2005 . Patricia Kann, Complainant, v. Gale A. Norton, Secretary, Department of the Interior, Agency. Appeal No. 07A50039 Agency Nos. LMS-99-004, LMS-99-011 Hearing No. 320-AO-8334X DECISION The agency filed an appeal to the Commission pursuant to 29 C.F.R. § 1614.110(a), after an EEOC Administrative Judge (AJ) issued an Order dated December 2, 2004.<1> Complainant alleges discrimination on the bases of sex and retaliation when she was subjected to a hostile work environment. After an investigation, complainant requested a hearing before an AJ. The AJ, after a hearing, issued a decision dated December 2, 2004 finding discrimination. The AJ ordered the following remedy: The Agency shall remit to Complainant all pay and/or benefits lost as a result of the Agency's discriminatory/retaliatory actions taken herein, assuming that, absent discrimination and/or retaliation, she would not have taken or used 13 days of annual leave and 13 days of sick leave. Accordingly, the Agency shall restore to Complainant 13 days of annual leave, and 13 days of sick leave, and any other benefits lost as a result of Complainant having used 13 days of annual leave, and 13 days of sick leave. The Agency shall restore the 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. Complainant shall cooperate in the Agency's efforts to compute the amount of benefits due, and shall provide all relevant information requested by the Agency. If there is a dispute regarding the exact amount of benefits, the Agency shall restore the undisputed amount of benefits to Complainant within sixty (60) calendar days of the date the Agency determines the amount it believes to be due. Complainant may petition for enforcement for the amount in dispute. The petition for enforcement must be filed with the Agency's EEO Director, in accordance with the provisions set forth below in the section entitled “Compliance with an Agency Final Action.” Within sixty (60) days of the date this decision becomes final, the Agency shall pay Complainant's attorney the sum of $102,893.06 for attorney's fees and costs, less any amount paid for attorney's fees and costs in the instant case and the Turton case. Within sixty (60) days of the date this decision becomes final, the Agency shall pay Complainant $300,000.00 in non-pecuniary damages to compensate Complainant for the pain and suffering she experienced as a result of the Agency's violation of Title VII. The Agency shall provide a minimum of eight hours of live, focused training to Mr. W, Mr. X, Mr. Y, Mr. Z, and Ms. A on their responsibilities under the laws enforced by the EEOC, with special emphasis on Title VII. If Mr. Y, or any other person named above, is no longer an employee of the federal government, the Agency shall furnish documentation of his/her departure date. The Agency shall consider taking appropriate disciplinary action against Mr. W, Mr. X, Mr. Y, Mr. Z and Ms. A. The EEOC does not consider training to be disciplinary action. If the Agency decides to take disciplinary action, it shall identify the action taken. As for Mr. W, I consider the appropriate discipline to be his removal from federal service. If the Agency decides not to take disciplinary action, it shall set forth the reason(s) for its decision not to impose discipline. The Agency shall report its decision regarding imposing discipline to Supervisory Administrative Judge Glenn G. Meyers. If Mr. Y, or any other person named above is no longer an employee of the federal government, the Agency shall furnish documentation of his/her departure date. The Agency shall post the notice, appended to this decision as Attachment A, (after being signed by the Agency's duly authorized representative) 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 within 10 calendar days of implementation of this decision to the EEOC Denver District Office at the following address: Glenn G. Meyers, Administrative Judge, 303 East 17th Avenue, Suite 510, Denver, Colorado 80203-9634. The notices shall be posted within 30 days of implementation and shall remain posted for a period of 120 consecutive days. The agency, on January 11, 2005, issued a decision agreeing with the AJ's finding of discrimination and part of the AJ's order for remedies. The decision fully implements the finding of discrimination and the remedy as it pertains to restoration of leave, benefits, and training. The agency, on appeal, challenges only the AJ's award with regard to non-pecuniary compensatory damages and attorney's fees. Pursuant to 29 C.F.R. § 1614.405(a), all post-hearing factual findings by an AJ will be upheld if supported by substantial evidence in the record. Substantial evidence is defined as “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Universal Camera Corp. v. National Labor Relations Board, 340 U.S. 474, 477 (1951) (citation omitted). A finding regarding whether or not discriminatory intent existed is a factual finding. See Pullman-Standard Co. v. Swint, 456 U.S. 273, 293 (1982). An AJ's conclusions of law are subject to a de novo standard of review, whether or not a hearing was held. The record indicates that complainant was working in the Minerals Management Service Division, Royalty in Kind (RIK) section as an accountant. The AJ found, inter alia, that complainant's supervisor, Mr. W, subjected complainant to a hostile work environment for a total of two years and ten months. The AJ found Mr. W stared at her breasts, made reference to a Korean whorehouse and prostitutes, and referred to female employees as “bitches.” Mr. W told complainant he had sex with a woman who suffered female genital mutilation but he did not enjoy it because “he couldn't ring her bells.” The AJ further found that Mr. W used words with non-sexual meanings to make vulgar sexual references. Specifically, Mr. W would use the word “come” to suggest ejaculate, “ball” to suggest testicle, “unzip” to suggest the unzipping of clothing, “hard” to suggest an erect penis, and “hole” to suggest a vagina. The AJ found that Mr. W, without invitation and over objection, embraced complainant under the ruse of administering a treatment for her headache. After Mr. W was removed from the area, the AJ found that he continued to stalk complainant; stared at her in the halls with a glaring, angry, hostile facial expression; and placed numerous menacing telephone calls to her home. The AJ found that Mr. W referred to the RIK team as “his harem.” Mr. W offered to lick whipped cream off complainant's finger after cutting a pie. The AJ found that Mr. W talked about yeast infections. After a harassment training, Mr. W told complainant she could disregard what was said at the training because it “doesn't mean anything, . . . you can do whatever you want to.” The AJ also found that Mr. W told an inappropriate joke after the harassment training. Specifically, Mr. W asked: “What did one lesbian frog say to the other? I guess we do taste like chicken.” Non-Pecuniary Compensatory Damages The AJ found that an award of $365,000.00 in non-pecuniary compensatory damages was appropriate. However, the AJ reduced that amount to $300,000.00, the statutory limit. The AJ found that complainant suffered emotional distress due to the agency's discriminatory action, with some of the conditions persisting for over four and one half years. Specifically, the AJ found that complainant suffered from: avoidance of people, crowds, and intense distrust of White males; social isolation and withdrawal, including loss of friends and colleagues; joylessness and loss of sense of humor; distraction and withdrawal from family; relationship with husband severely strained; high levels of stress and anxiety; exacerbation of previously existing migraine, bronchitis, and asthma conditions; menstrual irregularities; gastro-intestinal disorders; cracking of the teeth due to excessive clenching and grinding; heart palpitations; 30 to 40 pound weight gain; foot problems; heartburn; difficulty sleeping; diagnosed with moderately severe depression and generalized anxiety; loss of appetite; diminished energy; and loss of self-esteem and self-respect. The agency argues on appeal that the AJ's award of non-pecuniary compensatory damages was not consistent with the amounts awarded in similar cases after considering the nature, severity, and duration of harm. The agency argues that the AJ based the award of non-pecuniary compensatory damages on insufficient medical evidence. Finally, the agency argues that the AJ did not give sufficient weight to complainant's behavior, admissions, and relative lack of credibility, and to evidence of mitigation. The Commission has held that evidence from a health care professional is not a mandatory prerequisite for recovery of compensatory damages for emotional distress. Lawrence v. United States Postal Service, EEOC Appeal No. 01952288 (April 18, 1996); Carpenter v. Department of Agriculture, EEOC Appeal No. 01945652 (July 17, 1995); Bernard v. Department of Veterans Affairs, EEOC Appeal No. 01966861 (July 17, 1998). In determining compensatory damages, the Commission strives to make damage awards for emotional harm consistent with awards in similar cases. We find that $300,000.00 in non-pecuniary damages in this case is excessive considering the nature, severity, and duration of the harm as compared to analogous cases. Insofar as complainant has submitted evidence of emotional distress, we note that the Commission has awarded compensatory damages in cases somewhat similar to complainant's in terms of harm sustained. See Yasko v. Department of the Army, EEOC Appeal No. 01A32340 (April 21, 2004)(awarding complainant $100,000.00 in non-pecuniary compensatory damages after being subjected to sexual harassment resulting in depression, post-traumatic stress disorder, anxiety, severe intermittent insomnia, weight gain and stress); Winkler v. Department of Agriculture, EEOC Appeal No. 01975336 (June 7, 2000)(awarding $110,000.00 in non-pecuniary compensatory damages for emotional distress after being subjected to sexual harassment and experiencing major depression, excessive sleeping, social withdrawal, anxiety, irritability, weeping, increased suicidal ideation, fright, shock, humiliation, loss of marital harmony and loss of enjoyment in life). The Commission finds these cases analogous to the above referenced cases with respect to the nature, severity, and duration of the harm. After considering the nature of the agency's action, in conjunction with complainant's testimony, we find that $100,000.00 is an appropriate amount of non-pecuniary compensatory damages to be awarded. Finally, we note that this award is not “monstrously excessive” and is consistent with the amounts awarded in similar cases. Attorney's Fees The AJ awarded complainant a total of $102,893.06 in attorney's fees and costs. The AJ found that complainant's attorney marshaled a complex set of facts over a three-year period and found complainant's attorney to be highly competent. Thus, the AJ awarded complainant $74,767.50 in attorney's fees and $13,172.06 in costs for a total award of $87,939.56, the amount requested in complainant's petition for attorney's fees and costs. The AJ further found that the case warranted an increase in the amount of attorney's fees based on complainant's degree of success and the quality representation. The AJ increased the attorney's fee award by 20%, or $14,953.50. Thus, the total amount of attorney's fees awarded ($89,721.00) plus the total amount of costs ($13,172.06) equals $102,893.06. The agency argues that the AJ erred in increasing the amount of attorney's fees sua sponte. The agency argues that the amount of attorney's fees should be reduced to $74,767.50, the amount complainant requested. The agency does not challenge the amount of costs. Moreover, the agency does not challenge that complainant is entitled to the entire amount of attorney's fees requested. The agency is only arguing that the 20% enhancement was improper. Title VII authorizes the award of reasonable attorney's fees, including for an attorney's processing of a compensatory damages claim. 29 C.F.R. § 1614.501(e). To establish entitlement to attorney's fees, complainant must first show that he or she is a prevailing party. Buckhannon Bd. and Care Home Inc. v. West Virginia Dept. of Health and Human Resources, 532 U.S. 598 (2001). A prevailing party for this purpose is one who succeeds on any significant issue, and achieves some of the benefit sought in bringing the action. Davis v. Department of Transportation, EEOC Request No. 05970101 (February 4, 1999) (citing Hensley v. Eckerhart, 461 U.S. 427, 433 (1983)). 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 Appeal 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." Bernard, EEOC Appeal No. 01966861. However, the attorney does have the burden of identifying the subject matters which he spent his time by submitting sufficiently detailed and contemporaneous time records to ensure that the time spent was accurately recorded. Id. 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). 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 judgment" 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, EEOC Appeal No. 01966861. EEOC Regulations provided that in limited circumstances the “lodestar” amount may be “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 agency argues that the AJ erred in increasing the amount of attorney's fees sua sponte. Complainant argues that the award was not improper. Complainant argues that she submitted a petition for attorney's fees at the AJ's request. Complainant argues that at the time the petition was submitted, a decision had not been rendered in the case. Complainant argues that because the issue of damages and attorney's fees were not bifurcated, it would have been impossible to determine the level of success in the case, thus making an enhancement request premature. We agree with complainant. The AJ found that complainant's high degree of success was a result of her highly competent attorney. If an attorney achieves “exceptional success”, the attorney's fee award may be enhanced. See EEOC Management Directive, Ch.11(VI)(B)(1) (Nov. 9, 1999). The Commission finds that complainant's attorney achieved exceptional success by securing a compensatory damage of award of $100,000 and restoration of 26 days of leave. See Savage v. United States Postal Serv., EEOC Appeal No. 01A32565 (July 14, 2004). We find that the AJ did not abuse his discretion in awarding the 20% enhancement. Thus, we find that complainant is entitled to $102,893.06, in combined attorney's fees and costs. CONCLUSION The finding of sex discrimination and retaliation is AFFIRMED, but the remedies are MODIFIED. We REMAND the matter to the agency for implementation of the Order herein. ORDER The Agency shall remit to Complainant all pay and/or benefits lost as a result of the Agency's discriminatory/retaliatory actions taken herein, assuming that, absent discrimination and/or retaliation, she would not have taken or used 13 days of annual leave and 13 days of sick leave. Accordingly, the Agency shall restore to Complainant 13 days of annual leave, and 13 days of sick leave, and any other benefits lost as a result of Complainant having used 13 days of annual leave, and 13 days of sick leave. The Agency shall restore the 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. Complainant shall cooperate in the Agency's efforts to compute the amount of benefits due, and shall provide all relevant information requested by the Agency. If there is a dispute regarding the exact amount of benefits, the Agency shall restore the undisputed amount of benefits to Complainant within sixty (60) calendar days of the date the Agency determines the amount it believes to be due. Complainant may petition for enforcement for the amount in dispute. The petition for enforcement must be filed with the Agency's EEO Director. Within sixty (60) days of the date this decision becomes final, the Agency shall pay Complainant's attorney the sum of $102,893.06 for attorney's fees and costs, less any amount paid for attorney's fees and costs in the Turton case. No double recovery for attorney's fees shall be allowed in the Kann and Turton case. Thus, only $102,893.06 for attorney's fees and costs shall ultimately be paid to complainant's attorney for work performed in both Kann and Turton's cases. There is no separate award of attorney's fees and costs for work performed in the Kann and Turton cases. The attorney's fees and costs award of $102,893.06 includes all attorney's fees and costs (apart from any future awards for work performed in the instant appeal) for both Kann and Turton. Within sixty (60) days of the date this decision becomes final, the Agency shall pay Complainant $100,000.00 in non-pecuniary damages to compensate Complainant for the pain and suffering she experienced as a result of the Agency's violation of Title VII. Within 180 days of the date this decision becomes final, the Agency shall provide a minimum of eight hours of live, focused training to Mr. W, Mr. X, Mr. Y, Mr. Z, and Ms. A on their responsibilities under the laws enforced by the EEOC, with special emphasis on Title VII. If Mr. Y, or any other person named above, is no longer an employee of the federal government, the Agency shall furnish documentation of his/her departure date. Within 60 days of the date this decision becomes final, the Agency shall consider taking appropriate disciplinary action against Mr. W, Mr. X, Mr. Y, Mr. Z and Ms. A. The EEOC does not consider training to be disciplinary action. If the Agency decides to take disciplinary action, it shall identify the action taken for the record. If the Agency decides not to take disciplinary action, it shall set forth, in the record, the reason(s) for its decision not to impose discipline. If Mr. Y, or any other person named above is no longer an employee of the federal government, the Agency shall furnish documentation of his/her departure date for the record. Within 30 days of the date this decision becomes final, the Agency shall post the attached NOTICE TO EMPLOYEES POSTED BY ORDER OF THE EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, (after being signed by the Agency's duly authorized representative) in conspicuous places, including all places where notices to employees are customarily posted, as specified below. The agency shall send evidence that they have complied with provisions 1 - 6 of this Order to the Compliance Officer as referenced herein. POSTING ORDER (G0900) The agency is ordered to post at its Minerals Management Service Division, Royalty in Kind (RIK) section, Lakewood, Colorado 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 (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 (T0900) This decision affirms the agency's final decision/action in part, but it also requires the agency to continue its administrative processing of a portion of your complaint. 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 on both that portion of your complaint which the Commission has affirmed and that portion of the complaint which has been remanded for continued administrative processing. 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 your appeal with the Commission, until such time as the agency issues its final decision on your complaint. 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 September 28, 2005 __________________ 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 (42 U.S.C. 2000e et seq.), has occurred at the agency's Minerals Management Service Division, Royalty in Kind (RIK) section, Lakewood, Colorado 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 privileges of employment. This facility was found to have discriminated against the complainant on the bases of sex and reprisal. The facility was ordered to provide complainant pay and benefits lost, non-pecuniary compensatory damages, attorney's fees, and training for responsible management officials. This facility will ensure that officials responsible for personnel decisions and terms and conditions of employment will abide by the requirements of all federal equal employment opportunity laws and will not retaliate against employees who file EEO complaints. This facility will comply with federal law and 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 participates in proceedings pursuant to, federal equal employment opportunity law. Name and Title Date Posted: _____________________ Posting Expires: _________________ 29 C.F.R. Part 1614 1Mary Turton, a co-worker of complainant's, filed an EEO complaint alleging mostly the same claims. Thus, the AJ, on October 13, 2000, consolidated the complaints which were litigated at the same hearing. The AJ then issued separate decisions on December 2, 2004. However, since both complainant's were represented by the same attorney, some of the remedies, i.e., attorney's fees and costs, were issued jointly.