U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Marcellus M.,1 Complainant, v. Loretta E. Lynch, Attorney General, Department of Justice (Federal Bureau of Investigation), Agency. Appeal No. 0120152864 Agency No. FBI201100070 DECISION On August 21, 2015, Complainant filed a timely appeal from the Agency's July 24, 2015, final decision (FAD) concerning relief for his equal employment opportunity (EEO) complaint in which he prevailed against the Agency. The Agency was found to have discriminated against Complainant based on reprisal in violation of Title VII of the Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. § 2000e et seq. For the following reasons, the Agency's FAD on relief is AFFIRMED in part and MODIFIED in part. ISSUES PRESENTED 1. Was the Agency's award of $3,860.40 in attorneys' fees to Complainant correct? 2. Was the Agency's award of $2,000 in non-pecuniary compensatory damages correct? BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Special Agent and Part-time Pilot at the Agency in Detroit, Michigan. On February 5, 2011, Complainant filed an EEO complaint alleging that the Agency discriminated against him on the basis of reprisal for prior protected EEO activity under Title VII of the Civil Rights Act of 1964 when: 1. On October 21, 2009, the Special Agent in Charge ("SAC") and an Assistant Special Agent in Charge ("ASAC 1") prevented his immediate supervisor from giving him a work performance appraisal of "Outstanding"; 2. On December 21, 2010, during a meeting of Complainant's squad, the SAC openly discouraged the filing of EEO complaints. At the same meeting, ASAC 1 acknowledged that he had previously sent an offensive text message about Complainant to the squad; 3. On January 19, 2011, the SAC reassigned Complainant to another squad; 4. On January 19, 2011, Complainant's Agency vehicle was taken from him; 5. On January 21, 2011, the SAC did not approve awarding a Quality Step Increase (QSI) to Complainant, although his immediate supervisors supported his receiving the award. At the conclusion of the investigation into the allegations, the Agency provided Complainant with a copy of the report of investigation (ROI) and notice of his right to request a hearing before an Equal Employment Opportunity Commission Administrative Judge (AJ). In accordance with Complainant's request, the Agency issued a FAD pursuant to 29 C.F.R. § 1614.110(b), finding that Complainant was not subjected to the alleged discrimination. On appeal, Complainant prevailed on claims (2) and (4). Marcellus M. v. Dep't of Justice (Federal Bureau of Investigation), EEOC Appeal No. 0120123111 (March 27, 2014), reconsideration denied, EEOC Request No. 0520140309 (Oct. 22, 2014). The decision concluded that Complainant was subjected to per se reprisal given the SAC's comments regarding the filing of EEO complaints, and that management's decision to take away Complainant's vehicle was motivated by discriminatory animus due to Complainant's EEO activity. Id. The complaint was remanded for the Agency to award Complainant relief, which included a determination of compensatory damages and attorneys' fees. Id. After an unsuccessful appeal for the Commission to reconsider its decision finding discrimination, the Agency determined that Complainant was entitled to $7,720.79 in attorneys' fees and $2,000 in non-pecuniary compensatory damages. See generally, FAD. Complainant appealed these awards, and also contends that he is entitled to additional forms of relief. See generally, Complainant's Brief in Support of Appeal (Complainant's Brief). CONTENTIONS ON APPEAL I. Complainant's Contentions On Appeal Complainant contends that he is entitled to past and future pecuniary damages as a result of being denied a QSI of $23,000, which occurred around the same time period that the reprisal discrimination occurred. Complainant's Brief, p. 5. Complainant urges that he is entitled to this relief even though he was not found to have been discriminated against in being denied the QSI because this was an interrelated action by the Agency. Id. at p. 5.2 Further, Complainant contends that he is entitled to $100,000 in non-pecuniary compensatory damages because of the emotional harm he suffered as a result of the reprisal. Complainant's Brief, p. 6. Complainant cites a number of cases in support of his assertion that he is entitled to $100,000. Id. at 7-9. Next, Complainant contends that he is entitled to reimbursement of $7,720.79 in legal fees because they were for claims that were interrelated to the reprisal claims on which he prevailed. Complainant's Brief, p. 3. Finally, Complainant contends that he is entitled to $40,000 in punitive damages due to the Agency "acting with reckless disregard" for his federally protected rights.3 Id. II. Agency's Contentions On Appeal The Agency contends that the compensatory damages and attorneys' fees awarded to Complainant were proper. First, the Agency contends that Complainant alleged that he experienced depression, stress/anxiety, migraine headaches, deteriorating health requiring emergency medical care and loss of self-esteem. Agency Brief, p. 6. However, the Agency explained that Complainant did not submit any medical documentation supporting his request for compensatory damages, with the exception of one document from July 16, 2012. Id. Complainant alleged that he was hospitalized in July 2012 with what he thought to be a heart attack. Id. The Agency contends that there is no indication that the hospitalization was a result of the reprisal discrimination occurring in December 2010 and January 2011 because it occurred 18 months later in July 2012. Agency Brief, p. 6. Further, the Agency contends that Complainant is only entitled to $3,860.40 in attorneys' fees because even though Complainant submitted bills from his attorneys, the redacted bills did not show what specific work was performed or what EEO complaints they were performed for. Agency Brief, p. 7. Additionally, the Agency explained that Complainant sought legal fees for work performed between April 2013 and August 2014, but that his case was pending on appeal at the time and there was no work for any attorney to perform. Id. ANALYSIS AND FINDINGS I. Attorneys' Fees An application for attorney's fees must include a verified statement of attorney's fees accompanied by an affidavit executed by the attorney of record itemizing the attorney's charges for legal services. Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at Chap. 11 § VI.G (Aug. 5, 2015). The verified statement of attorney's fees should include: (1) "a list of services rendered itemized by date, number of hours, detailed summary of the task, rate, and attorney's name"; (2) documentary evidence of the reasonableness of hours such as billing records; (3) documentary evidence of the reasonableness of rate such as an affidavit stating that the requested rate is the attorney's normal billing rate." Id. "While the attorney is not required to record in great detail the manner in which each minute of his time was expended, the attorney does have the burden of identifying the subject matters on which he spent his time by submitting sufficiently detailed and contemporaneous time records to ensure that the time spent was accurately recorded." Vashi v. U.S. Postal Serv., Appeal No. 0120081943 (Feb. 7, 2011) (citing, Spencer v. Dep't of the Treasury, EEOC Appeal No. 07A10035 (May 6, 2003)). "The attorney requesting the fee award has the burden of proving, by specific evidence, entitlement to the requested fees and costs." Id. (citing, Koren v. U.S. Postal Serv., EEOC Request No. 05A20843 (Feb. 18, 2003)). The legal bills that were submitted by Complainant did not specify which EEO case the items were billed for, and Complainant had other EEO cases he was pursuing. See, e.g., August 6, 2014 Bill. Further, the bills were heavily redacted. Id. Given the difficulties this presents in determining an appropriate attorneys' fee award, the Agency's award of 50% of the requested attorneys' fees, or $3,860.40, is appropriate. II. Non-pecuniary Compensatory Damages The Agency awarded Complainant $2,000 in non-pecuniary compensatory damages for the two acts of reprisal, and Complainant challenges this award contending that he is entitled to $100,000. A Complainant who establishes his claim of unlawful discrimination may receive compensatory damages for 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 non-pecuniary damages is $300,000. Id. While there are no definitive rules governing the amount of non-pecuniary damages to be awarded, non-pecuniary damages must be limited to the sums necessary to compensate the injured party for actual harm, even where the harm is intangible, and should take into account the severity of the harm and the length of time that the injured party has suffered the harm. Carter v. Duncan-Higgins, Ltd., 727 F.2d 1225 (D.C. Cir. 1984); Carpenter v. Dep't of Agriculture, EEOC Appeal No. 01945652 (July 17, 1995). The amount of the award of non-pecuniary compensatory damages should not be "monstrously excessive" standing alone, should not be the product of passion or prejudice, and should be consistent with the amount awarded in similar cases. See Cygnar v. City of Chicago, 865 F. 2d 827, 848 (7th Cir. 1989); EEOC v. AIC Security Investigations, Ltd., 823 F. Supp. 571, 574 (N.D. Ill. 1993). Evidence from a health care provider or other expert is not a prerequisite for recovery of compensatory damages for emotional harm. Lawrence v. U.S. Postal Service, EEOC Appeal No. 01952288 (Apr. 18, 1996) (citing Carle v. Dep't of the Navy, EEOC Appeal No. 01922369 (Jan. 5, 1993)). Complainant's own testimony, along with the circumstances of a particular case, can suffice to sustain his burden. The more inherently degrading or humiliating the agency's action is, the more reasonable it is to infer that a person would suffer humiliation or distress from that action. Id. The absence of supporting evidence, however, may affect the amount of damages appropriate in specific cases. See Banks v. U.S. Postal Service, EEOC Appeal No. 07A20037 (September 29, 2003) (citing, Lawrence, EEOC Appeal No. 01952288). The discriminatory acts of reprisal occurred on December 21, 2010 and January 19, 2011. The Agency was found to have engaged in per se reprisal when a manager openly criticized the filing of EEO complaints during a meeting, and threatened to disband the squad to which Complainant belonged. Marcellus M., EEOC Appeal No. 0120123111. Further, Complainant's Agency vehicle was taken from him about a month after reporting harassment, but was later returned. Id. As a result of the reprisal, Complainant explained that he suffered from depression, loss of enjoyment of life, stress/anxiety, humiliation, loss of self-esteem, excessive fatigue and injury to professional standing. Complainant's Brief, p. 7. It is unclear how long these symptoms lasted, and Complainant did not submit any supporting documentation. Further, Complainant's hospitalization for what he perceived to be a heart attack but turned out to be Esophageal Reflux, occurred more than a year and half after the reprisal, therefore, it is unclear if it was related to the discrimination. Complainant urges that he was subjected to ongoing harassment, however, the Agency was not found to be liable for any additional acts aside from the supervisor's comment and Complainant's vehicle being taken away. Marcellus M., EEOC Appeal No. 0120123111. The Agency awarded Complainant $2,000 in non-pecuniary compensatory damages, however, a more appropriate amount to remedy Complainant for harm suffered as a result of the reprisal discrimination is $3,500. See, e.g., Pailin v. Dep't of Defense (Defense Logistics Agency), Appeal No. 01954350 (Jan. 26, 1998) (awarding $2,500 in non-pecuniary compensatory damages to a complainant suffering from weight loss, fatigue, lack of motivation, sadness, and diminished self-esteem for approximately nine months); Altman v. Dep't of the Army, EEOC Appeal Nos. Appeal Nos. 01A10691; 01A01571 (June 20, 2002) (awarding $3,000 in non-pecuniary compensatory damages to a complainant suffering from emotional distress and long term depression as a result of discrimination); (Webster v. Dep't of Defense, EEOC Appeal No. Appeal No. 0120102276 (Sept. 20, 2011) (awarding $4,000 in compensatory damages for the injury to his professional reputation and his increased level of distress following per se reprisal). This award takes into account the nature of the Agency's actions, the degree of harm Complainant experienced, and the amount of supporting evidence Complainant offered. Therefore, Complainant is entitled to $3,500 in non-pecuniary compensatory damages. CONCLUSION Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed, the Agency's FAD on relief is AFFIRMED in part and MODIFIED in part. That part of the Agency's FAD finding that Complainant was entitled to $3,860.40 in attorneys' fees is affirmed, but that part of the FAD finding that Complainant is entitled to $2,000 in non-pecuniary compensatory damages is modified to award relief of $3,500. The complaint is REMANDED for compliance with this decision and the Order below. ORDER Within one hundred and twenty (120) calendar days from the date this decision becomes final, the Agency is ORDERED to take the following actions, to the extent it has not already done so: 1. Pay Complainant $3,500 in non-pecuniary compensatory damages; 2. Pay Complainant $3,860.40 in attorneys' fees; 3. Conduct EEO training, with a special emphasis on the anti-retaliation provisions, for the SAC, ASAC-1, and all management officials at its Detroit District facility. The Commission does not consider training to be discipline. 4. Consider taking disciplinary action against the SAC and ASAC 1, and any other manager involved. 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. 5. Post copies of the notice discussed below at the Detroit, Michigan facility. 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 all of the corrective action has been implemented. POSTING ORDER (G0914) The Agency is ordered to post at the Office of the Rule of Law Coordinator in Baghdad, Iraq, copies of the attached notice. Copies of the notice, after being signed by the Agency's duly authorized representative, shall be posted both in hard copy and electronic format by the Agency within 30 calendar days of the date this decision becomes final, and shall remain posted for 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 10 calendar days of the expiration of the posting period. ATTORNEY'S FEES (H0610) If Complainant has been represented by an attorney (as defined by 29 C.F.R. § 1614.501(e)(1)(iii)), 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 (M0815) 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 Chap. 9 § VII.B (Aug. 5, 2015). 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 (Z0815) If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may request permission from the court to proceed with the civil action without paying these fees or costs. Similarly, if you cannot afford an attorney to represent you in the civil action, you may request the court to appoint an attorney for you. You must submit the requests for waiver of court costs or appointment of an attorney directly to the court, not the Commission. The court has the sole discretion to grant or deny these types of requests. Such requests do not alter the time limits for filing a civil action (please read the paragraph titled Complainant's Right to File a Civil Action for the specific time limits). FOR THE COMMISSION: ______________________________ Carlton M. Hadden's signature Carlton M. Hadden, Director Office of Federal Operations 5-6-2016 __________________ Date 1 This case has been randomly assigned a pseudonym which will replace Complainant's name when the decision is published to non-parties and the Commission's website. 2 While Complainant included denial of a QSI as one of the allegations in his complaint, he did not prevail on the claim and is therefore not entitled to relief. 3 Punitive damages are not available against the federal government. York v. Dep't of Navy, EEOC Appeal No. 01930435 (Feb. 25, 1994). --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ 2 01-2015-2864 2 0120152864