Kevin Bostick, Complainant, v. John M. McHugh, Secretary, Department of the Army, Agency. Appeal No. 0120093611 Agency No. ARFTMCPH05MAY08846 DECISION On August 28, 2009, complainant filed an appeal from the agency's July 27, 2009 final decision concerning his equal employment opportunity (EEO) complaint alleging employment discrimination in violation of Title VII of the Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. § 2000e et seq. The appeal is deemed timely and is accepted pursuant to 29 C.F.R. § 1614.405(a). For the following reasons, the Commission AFFIRMS in part and REVERSES in part the agency's final decision. BACKGROUND Complainant filed an EEO complaint alleging that he was discriminated against on the bases of race (African-American) and color (Black) when, on May 18, 2005, he was not selected for a GS-14 Supervisory Logistics Management Specialist position located at the agency's Forces Command G-4 Directorate. The complaint was accepted for investigation. At the conclusion of the investigation, the agency provided complainant 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, and the AJ held a hearing on May 18, 2006. On August 28, 2006, the AJ issued a decision. Therein, the AJ found that complainant was not discriminated against on the bases of race and color when he was not selected for the position of Supervisory Logistics Management Specialist, GS-14. The agency issued a final order on October 4, 2006, implementing the AJ's finding of no discrimination. Complainant appealed the agency's final order to this Commission. In EEOC Appeal No. 0120070645 (September 26, 2008), the Commission reversed its AJ and found that complainant had been subjected to discrimination. In EEOC Appeal No. 0120070645, the Commission determined that complainant established that the agency's reasons for not selecting him for the position were a pretext for race and color discrimination. Specifically, complainant had shown that he had been a maintenance officer for at least 20 years, was assigned to the subject position for two years, received outstanding reviews in said position, supervised Selectee 1, possessed similar military and educational background to Selectee 2, possessed specialized training, and received higher scores on the matrix than both Selectee 1 and 2. As such, the previous decision determined that complainant had met his burden of establishing, by a preponderance of the evidence, that he was discriminated against on the bases of his race and color when he was not selected for the subject position. To remedy complainant for the discrimination, the decision ordered, among other things, that the agency conduct a supplemental investigation to determine whether complainant was entitled to compensatory damages as a result of his non-selection, and afford complainant an opportunity to establish a causal relationship between the non-selection and any pecuniary or non-pecuniary losses. The agency was ordered to issue a new decision awarding compensatory damages to complainant. On May 6, 2009, complainant filed his claim for compensatory damages including several documents and statements from his physicians, friends, and himself. In addition, complainant's attorney provided a bill for fees and costs incurred for the processing of the instant matter. FINAL AGENCY DECISION The agency reviewed the documentation provided by complainant and made the following determinations: Pecuniary Damages. The agency noted that complainant sought $23,225 in medical expenses and $370 in medical travel. In support of his claim, complainant provided a letter from the "Behavioral Sciences Team" (MD) stating that his treatment from August 2005 to the present cost in excess of $100,000 ($19,950 in out-of-pocket expenses). The agency, however, found that complainant's medical condition was being provided by the Veterans' Administration so complainant did not incur any costs. In addition, complainant submitted an invoice from his psychologist (PhD1), dated April 21, 2009, for $2,250. The agency determined that complainant's documents supported his claim for the expenses incurred by the services of PhD1. As such the agency awarded the full $2,250.1 As to the medical travel, the agency noted that complainant failed to provide any documentation regard such expenditure. Complainant also sought future pecuniary damages in the amount of $216,876 based on an estimate of $6,592 per year for medical treatment for the next 32.9 years (his life expectancy). The agency denied complainant's claim for lack of proof to substantiate his claim. Non-Pecuniary Damages. Complainant requested $808,000.00 in non-pecuniary damages for both past and future pain and suffering. Specifically, complainant claimed $50,000 per year for three years in past non-pecuniary damages, and $20,000 per year for the next 32.9 years. The agency noted that complainant alleged that he suffered from mental anguish, debasement, humiliation, depression, and damage to his character, reputation and professional standing. Complainant also provided the agency with statements from his physician and two psychologists, his medical records, a sworn statement from a family friend, and three unsworn letters from family friends to support his claim of compensatory damages. The agency noted that complainant's evidence demonstrated that he had suffered harm from May 18, 2005 through at least January 21, 2009. In addition the agency noted that complainant indicated that he also suffered from daily headaches, daily nausea, loss of self esteem, sleeplessness, and depression which required daily medication. The MD stated that complainant received more than 100 hours of therapy over three years and would continue to do so in the future. Complainant's psychologist stated that complainant was prescribed Atenolol for his headaches, Ambien for insomnia, and Zoloft for his depression. She also noted that complainant's symptoms began when he "started dealing with an EEO situation in the workplace." PhD1 diagnosed complainant with Post Traumatic Stress Disorder (PTSD) and opined that he was "traumatized by his experience of race based discrimination." Complainant's friends also supported his claim for compensatory damages, noting his depression and feeling of betrayal and deflation based on the agency's non-selection. The agency found a causal link between the discrimination and complainant's symptoms. However, the agency found complainant's request of $808,000 in compensatory damages was excessive. Based on the Commission's cases regarding compensatory damages and the harm demonstrated by complainant, the agency found that complainant was entitled to $76,000 in non-pecuniary compensatory damages. The agency also addressed complainant's submission pertaining to his entitlement to attorney's fees and costs. Complainant's attorney provided an "Invoice" dated December 17, 2008, for services from November 28, 2008 to December 16, 2008, indicating that complainant's attorney engaged in 13.52 hours at a rate of $250 per hour. The agency denied attorney's fees and costs. It noted that complainant's attorney did not provide an affidavit supporting the reasonableness of the attorney's hourly rate of $250. In sum, the agency awarded complainant $76,000 in non-pecuniary damages and $2,250 in costs associated in the development of complainant's supporting documentation regarding compensatory damages. CONTENTIONS ON APPEAL Complainant appealed the agency's final decision. Complainant asserted that the agency's award of compensatory damages was far below his expenses and his pain and suffering. Complainant noted that he requested some $1,048,471 in total compensatory damages. Complainant argued that he provided supporting documentation to establish a nexus between the harm suffered and the discriminatory action. Complainant also requests that the Commission order the agency to promote him to a GS-15 position rather than the GS-14 position ordered in EEOC Appeal No. 0120070645. Finally, complainant contended that he is entitled to $26,331 in attorney's fees and costs for legal services provided from February 4, 2009 through August 28, 2009. Complainant indicated that he provided all the necessary documentation for the fees in November 2008. The agency opposed complainant's appeal. The agency argued that it has already provided complainant with all the fees, expenses and non-pecuniary damages to which complainant is entitled. Further, the agency noted that complainant has no basis to demand a promotion to the GS-15 position. As to the attorney's fees, the agency noted that it has already paid complainant's attorney $70,604.63 in fees in February 2009 for services provided from December 17, 2008 through January 15, 2009. As such, the agency requests that the Commission affirm its final decision. ANALYSIS AND FINDINGS Promotion to the GS-15 Position The Commission notes that the previous decision ordered the agency "offer to place complainant in the position of Supervisory Logistics Management Specialist, GS-14, or a substantially equivalent position, retroactive to the date of his non-selection, May 18, 2005." If complainant disagreed with the Commission's relief ordered in EEOC Appeal No. 0120070645, he should have filed a Petition for Review. Complainant failed to do so. Further, it is noted that the agency's final decision only addressed the award of compensatory damages and attorney's fees and costs. As such, we find that complainant's request for a change in the Commission's order in EEOC Appeal No. 0120070645 is not properly before the Commission. As such, we will not address this assertion further. Legal Standards for an Award of Compensatory Damages 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. Pecuniary losses are out-of-pocket expenses incurred as a result of the employer's unlawful action, including job-hunting expenses, moving expenses, medical expenses, psychiatric expenses, physical therapy expenses, and other quantifiable out-of-pocket expenses. Past pecuniary losses are the pecuniary losses that are incurred prior to the resolution of a complaint via a finding of discrimination, the issuance of a full-relief offer, or a voluntary settlement. The Commission, however, requires documentation in support of these expenses, typically in the form of receipts, bills, or physician's statements. See Minardi v. United States Postal Service, EEOC Appeal No. 01981955 (October 3, 2000); Gause v. Social Security Administration, EEOC Appeal No. 01972427 (March 8, 2000). The particulars of what non-pecuniary 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. Department 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. Department 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 (January 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. Department of Agriculture, EEOC Appeal No. 01945652 (July 17, 1995). Past Pecuniary Damages Upon review, the Commission finds that complainant established a nexus between his past pecuniary damages and the agency's discriminatory action. Complainant requested $23,225 in medical costs and $370 in medical travel expenses. Of complainant's medical expenses, he only provided a bill for services rendered by PhD1 for the amount of $2,250. This bill, in addition to the statements by complainant and PhD1, establish the requisite nexus between the alleged harm and the discrimination. Accordingly, we find that complainant is entitled to past pecuniary damages for his out-of-pocket treatment expenses in the amount of $ 2,250. As to the remaining amount, complainant failed to provide medical bills establishing that he incurred the asserted losses. We note that complainant provided a letter from the "Patient Administrator" of the "Behavioral Sciences Team" stating that complainant's out-of-pocket expenses have been $19,950 for treatment from August 2005 to December 2008. There is no bill or itemized list of dates of services and costs associated with any visits. We also find that complainant failed to provide any supporting documentation regarding his "medical travel." Therefore, we find that complainant has not met his burden of establishing his entitlement to pecuniary damages for these amounts. As such, we affirm the agency's denial of the remaining amounts finding that complainant has not substantiated his claim. Future Pecuniary Damages Complainant has requested $216,876 in future pecuniary damages based on his assertion that the medical problems which necessitated past medical treatment would persist for the entirety of his life expectancy (32.9 years) at a cost of $6,592 per year. After careful review of the record, we concur with the agency's conclusion that complainant has failed to provide sufficient evidence, medical or other, upon which to base a finding that he will incur out-of-pocket expenses for medical treatment for the remainder of his life or for any other set term.2 As such, we affirm the agency's decision to deny his claim for future pecuniary damages. Non-Pecuniary Damages The Commission finds that the agency's final decision correctly determined that complainant established a nexus between the alleged harm and discrimination. The record includes statements from complainant, his friends, the MD, and PhD1, indicating that following the discrimination complainant exhibited symptoms of PTSD, became depressed, suffered a loss of self-esteem and experienced a variety of physical symptoms, including headaches, nausea and insomnia.3 Accordingly, the Commission finds that the agency properly determined that complainant established a nexus between the alleged harm and the discrimination and therefore, is entitled to an award of non-pecuniary damages. Complainant has claimed that he should be awarded $808,000 in non-pecuniary compensatory damages. As an initial matter, we again note that Title VII has a statutory cap on future pecuniary and non-pecuniary damages of $300,000, so the award cannot exceed that amount. A proper award of non-pecuniary compensatory damages should consistent with the amount awarded in similar cases. See Ward-Jenkins v. Department of Interior, EEOC Appeal No. 01961483 (March 4, 1999) (citing Cygnar v. City of Chicago, 865 F.2d 827, 848 (7th Cir. 1989). In the instant case, complainant requested damages for ongoing emotional pain and suffering, loss of self-esteem, and physical symptoms such as headaches, nausea and problems sleeping. We conclude that the agency's award of $76,000 is consistent with Commission precedent, and is neither "monstrously excessive" nor the product of passion or prejudice. See, e.g., Lucas v. Department of Veterans Affairs, EEOC Appeal No. 0720070051 (January 3, 2008) ($85,000.00 awarded in compensatory damages for discriminatory harassment where complainant felt devastated, hopeless, and fearful, could not sleep, was treated by a psychiatrist, and stated that her marriage was adversely affected); Robinson v. Department of Treasury, EEOC Appeal No. 0720070015 (May 22, 2008), request to reconsider denied, 0520080667 (September 10, 2008) ($85,000 award as a result of discriminatory hostile work environment that resulted in loss of reputation, injury to professional standing, emotional pain and suffering, mental anguish, health problems, anxiety, stress, depression, loss of self esteem and excessive fatigue); Crear v. Department of Veterans Affairs, EEOC Appeal No. 07A50079 (January 26, 2006) ($70,000.00 awarded complainant who experienced nightmares, anger, worry and embarrassment, felt disrespected and degraded, felt that she was isolated at work and felt that her professional education was in jeopardy); Bahaudin v. Department of the Army, EEOC Appeal No. 01993594 (September 13, 2000) ($85,000 awarded where complainant, diagnosed with Major Depression, produced evidence indicating that the agency's discriminatory actions caused him to, among other things, become very irritable and distant; wake up at night and make sudden jerking movements: not want to go to work; just lie in bed when he was not working; neglect his home duties; and not eat); McCann v. Department of the Air Force, EEOC Appeal No. 01971851 (October 23, 1998) ($75,000 awarded where complainant's testimony and several reports supported a finding that the agency's discrimination reawakened complainant's post traumatic stress disorder). Accordingly, we affirm the agency's determination that complainant is entitled to $76,000 in non-pecuniary damages for pain and suffering as a result of the discrimination. Attorneys' 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 did not question the attorney's statement of hours for services rendered from November 28, 2008 to December 16, 2008, but only challenged the requested rate of $250 per hour. The Commission views the attorney's own customary billing rate as the most reliable evidence of prevailing rates. See Neves v. Department of Veterans Affairs, EEOC Appeal No. 01974717 (January 14, 2000). While the agency contends that the complainant's evidence is insufficient to support the claim for $250 per hour, the Commission disagrees. The agency itself observed that complainant's attorney presented: a billing statement reflecting the $250 per hour rate for the instant case. In addition, the attorney provided an affidavit stating that the firm usually charged this rate and an affidavit from another attorney, dated November 21, 2008, stating that complainant's counsel's rate of $ 250 per hour is reasonable. We note that the agency has subsequently paid complainant's attorney some $ 70,604.63 in fees and costs for the services rendered from December 17, 2008 through January 15, 2009. As such, the agency was already provided with evidence of the attorney's reasonable hourly rate. Therefore, based on the evidence provided by complainant's attorney, we find that the attorney has shown that his rate of $250 is reasonable for the 13.52 hours of service from November 28, 2008 to December 16, 2008. Accordingly, we reverse the agency's decision regarding the attorney's fees and find that counsel is entitled to payment of $3,380.4 CONCLUSION Therefore, after a careful review of the record, including complainant's contentions on appeal, we affirm the agency's decision regarding compensatory damages. However, we also reverse the agency's decision regarding complainant's request for attorney's fees and costs and remand this case to the agency to take remedial action in accordance with the Order below. ORDER To the extent it has not already done so, the agency is ordered to take the following remedial action: 1) Within sixty (60) days of the date this decision becomes final, issue complainant payment in the amount of $2,225 in past pecuniary damages, and $76,000 in non-pecuniary damages. 2) Within the same time period, issue payment to complainant's counsel in the amount of $3,380 for legal services provided to complainant from November 28, 2008 through December 16, 2008. The agency shall submit a report of compliance, as provided in the statement entitled "Implementation of the Commission's Decision." The report shall include documentary evidence that the corrective action has been implemented 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 (K1208) 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 (M1208) 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 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 (T0408) 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 (Z1008) 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 March 5, 2010 __________________ Date 1 It is noted that the agency re-characterized the award of $2,250 in fees to PhD1 as allowable "costs" for PhD1's time used to develop the supporting documentation for complainant's claim for compensatory damages. 2 It is noted, for example, that while PhD1 diagnosed complainant with PTSD and opined that he was "traumatized" by the discrimination, she also noted that he was "currently managing a demanding job quite well." 3 We do note, however, that there is some evidence in the record that complainant's sleep difficulties were related, at least in part, to long-term back problems, which appear unrelated to the discrimination. 4 We note on appeal that complainant's attorney provided another invoice for legal services from February 4, 2009 through August 28, 2009. We find that these legal services were not part of the initial fee petition before the agency at the time of the final decision at issue here and involve legal services performed in conjunction with the processing of the instant appeal. As such, we find complainant's attorney's invoice for the dates February 4, 2009 through August 28, 2009 are not properly before the Commission at this time. As such, we do not address the attorney's request for fees for February 4, 2009 through August 28, 2009. ?? ?? ?? ?? 2 0120093611 U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 2 0120093611