U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Grant A. and Val L.,1 Complainants, v. Tom J. Vilsack, Secretary, Department of Agriculture, Agency. Appeal Nos. 0120132145, 0120132146 Hearing Nos. 410-2011-00100X, 410-2011-00175X Agency Nos. OIG-2008-00812, OIG-2008-00813 DECISION Complainant 1 and Complainant 2 jointly filed an appeal from the Agency's April 1, 2013, final order concerning their consolidated equal employment opportunity (EEO) complaints 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., and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq. The Commission accept the appeals pursuant to 29 C.F.R. § 1614.405(a). Further, pursuant to 29 C.F.R. § 1614.606, we exercise our discretion to consolidate both appeals into a single decision because they concern the same final order and similar allegations, findings, and remedies. For the following reasons, the Commission MODIFIES the Agency's final order. ISSUES PRESENTED The issues presented are: 1) whether substantial evidence supports the Equal Employment Opportunity Commission (EEOC) Administrative Judge's (AJ's) finding that Complainants are entitled to $105,000 in attorney's fees; and 2) and whether substantial evidence supports the AJ's finding that Complainant 1 did not prove that he was subjected to retaliatory harassment. BACKGROUND At the time of events giving rise to this complaint, Complainants worked as GS-12 Auditors in the Agency's Southeast Regional Office (SER) in Atlanta, Georgia. Complainants filed individual complaints in July 2008 in which they alleged that they were subjected to discrimination based on race (African-American), color (black), age (over 40 years old), sex (male) and in reprisal for prior EEO activity when they were not selected for promotion to the GS-13 level. Complainants also alleged that they were subjected to harassment based on race, sex, age, and in reprisal for previous EEO activity. Additionally, Complainant 2 alleged that he was subjected to reprisal when the Regional Inspector General (RIG) referred him to the Office of Compliance in August 2010. The AJ's September 25, 2012 Decision After the investigation of the complaints, Complainants requested a hearing before an AJ. The AJ conducted a hearing on both complaints in October 2011, May 2012, and July 2012. In a decision dated September 25, 2012, the AJ issued a decision in which he found that Complainants were subjected to discrimination on the bases of race and sex when they were not selected for promotion to GS-13. The AJ further found that the RIG referred Complainant 2 to the Office of Compliance and Integrity in reprisal for his prior EEO activity. The AJ also found that Complainants were not subjected to unlawful harassment. The AJ's Decision on Relief On January 22, 2013, the AJ conducted a hearing on damages. At the hearing, Complainant 1 called three witnesses: himself, his wife, and his pastor. Complainant 1 testified that he suffered stress, insomnia, hair loss, depression and an overwhelming feeling of grief when he was not promoted, and his wife testified that Complainant 1 lost his appetite and became withdrawn because of the discrimination. Complainant 1's pastor testified that Complainant 1 became visibly upset and depressed because of the discrimination. Complainant 2 called himself and his wife. Complainant 2 and his wife testified that he experienced stress, panic attacks, insomnia, high blood-pressure, 45 pounds of weight gain, sexual dysfunction, insomnia, and withdrawal because of the discrimination. Complainant 2 also testified that the harassment placed a strain on his marriage and family and eroded quality time with his wife. Additionally, Complainants filed joint fee-petitions on January 31, 2013, regarding their claims for attorney's fees and costs. Complainants requested attorney's fees in the amount of $122,294.75, and $7,707.73 in costs, for a total of $130,002.48. On February 13, 2013, the AJ issued a decision that ordered the Agency to retroactively promote Complainant 1 to GS-13, effective July 10, 2008, and provide back pay with interest and step increases. The AJ ordered the Agency to promote Complainant 2 to GS-13, effective July 10, 2008, and provide back pay with interest and step increases. The AJ further awarded non-pecuniary compensatory damages in the amount of $65,000 to Complainant 1 and $50,000 to Complainant 2. In his decision the AJ ordered the Agency to pay Complainant 1 $35,006.18 in attorney's fees, and $109.33 in costs, but also ordered the Agency to pay both Complainants a combined total of $105,000 in attorney's fees and $109.33 in costs. The AJ concluded that the Agency correctly argued that Complainants requested an excessive amount of attorney's fees because: 1) travel time should be reimbursed at 50 percent of the hourly rate; 2) historic rather than current hourly rates should apply; 3) there were duplicative items in the bills; and 4) excess time was spent on some legal work. Additionally, the AJ ordered the Agency to post a notice of discrimination on all employee bulletin boards. On February 27, 2013, the Agency asked the AJ to clarify his orders with respect to the amount of attorney's fees and costs awarded. On March 4, 2013, the AJ amended his decision on Complainants' entitlement to relief. In that amended decision, the AJ ordered the Agency to pay Complainants a combined total of $105,000 in attorney's fees and $109.33 in costs. The amended decision also ordered the Agency to retroactively promote both Complainants to GS-13 effective July 10, 2008, and provide them back pay with interest and step increases. Additionally, the amended decision ordered the Agency to pay Complainant 1 $65,000 in non-pecuniary compensatory damages and out of pocket expenses, and to pay Complainant 2 $50,000 in non-pecuniary compensatory damages and out-of-pocket expenses. On April 1, 2013, the Agency issued a final order fully implementing the AJ's decisions.2 CONTENTIONS ON APPEAL In a joint appellate brief, Complainants maintain that they are only appealing the AJ's award of attorney's fees, and the AJ's finding that Complainant 1 was not subjected to a hostile work environment. Complainant 1 contends that although the RIG was reassigned to a position outside of SER in 2011, the RIG continues to harass him because he has been assigned to work audits that still fall under the RIG's portfolio. Complainant 1 further contends that he has been assigned the same audit since 2010, and has been forced to serve in a subordinate capacity to much younger and less-experienced junior auditors, many of whom he has trained. Further, Complainant 1 contends that he was harassed by the RIG from 1995 to 2010 because the RIG did not promote any African American men to GS-13 from 1995 to 2010, he was subjected to excessive scrutiny of his leave and lunch periods, he was assigned to "dead-end and onerous assignments," and he had reduced opportunities for leadership and advancement. Complainants also contend that the AJ erred by reducing the attorney's fee award without providing a detailed explanation for the reduction. Complainants contend that, although the AJ was correct to reduce attorney's fees with respect to travel hours, case law expressly states that current "Laffey rates" should be used to calculate attorney's fees. Complainants further contend that there were no duplicative hours claimed on the fee petition. The Agency maintains that the AJ properly found that Complainant 1 did not show that he was subjected to a hostile work environment. The Agency further maintains that Complainant 1 did not show that the alleged harassing actions were motivated by his membership in a protected class, and that these actions were not severe or pervasive enough to constitute a hostile work environment. The Agency further maintains that the AJ's attorney's fees award should be upheld. STANDARD OF REVIEW 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. An AJ's credibility determination based on the demeanor of a witness or on the tone of voice of a witness will be accepted unless documents or other objective evidence so contradicts the testimony or the testimony so lacks in credibility that a reasonable fact finder would not credit it. See EEOC Management Directive for 29 C.F.R. Part 1614 (MD-110), Chap. 9, § VI.B. (Aug. 5, 2015). Here, we find no basis in the record to disturb the AJ's findings. ANALYSIS AND FINDINGS Hostile Work Environment In this case, Complainant 1 claims that he was subjected to a retaliatory hostile work environment because the RIG did not promote any African American men to GS-13 from 1995 to 2010, he was subjected him to excessive scrutiny of his leave and lunch periods, he was assigned to "dead-end and onerous assignments," and he had reduced opportunities for leadership and advancement. Upon review, we find that the alleged actions were not severe or pervasive enough to create a hostile work environment. Consequently, we find that substantial evidence supports the AJ's conclusion that Complainant 1 was not subjected to retaliatory harassment. Further, to the extent that Complainant 1 contends that he continues to be harassed or discriminated against, we find that these matters are beyond the purview of the instant appeal. If Complainant 1 wishes to pursue these claims, he should immediately contact an EEO Counselor regarding these allegations.3 Attorney's Fees Complainants' fee petition claimed $122,294.75 in attorney's fees. The reasonable hourly rate is generally determined by the prevailing market rate in the relevant legal community for similar services by lawyers of reasonably comparable skill, experience and reputation. Blum v. Stenson, 465 U.S. 886 (1984). The AJ in this case relied on the Washington, D.C. prevailing market rates to determine the reasonable hourly rate for Complainants' attorney, who worked for a Washington, D.C.-based law firm. Using the "Laffey Matrix," a formula relied upon by federal courts to establish the range of hourly rates for attorneys practicing in the Washington, D.C. area, the AJ applied different hourly rates based upon the level of experience the attorney had at the time she performed particular work. Complainants requested attorney's fees based on an hourly rate of $355. The $355 per hour rate corresponds to the Laffey rate for attorneys with the amount of legal experience Complainants' attorney had at the time the AJ issued his decision. We find that Complainants correctly assert that the AJ erred as a matter of law when he did not apply the $335 per hour rate that prevailed at the time Complainants submitted their request. Huyck v. Dep't of Defense, EEOC Appeal No. 01952015 (Oct. 31, 1997) (current rates applied "[i]n order to ensure that counsel is not deprived of the value of her fees owing to a delay in the resolution of a case"); Mareno v. Dep't of Veterans Affairs, EEOC Appeal No. 01943104 (Feb. 14, 1996) (reaffirming position that proper customary hourly rate is reasonable hourly rate in effect at time of award and not at time services are provided). Moreover, the speculative nature of attempting to determine the present value of historical rates for work performed over a span of years discourages the application of historical rates. See Rowland v. Dep't of Agriculture, EEOC Appeal No. 0120113022 (Feb. 8, 2012). Thus, we find that the AJ improperly applied pre-2013 Laffey matrix rates to a large portion of Complainants' itemized charges instead of the prevailing rates that existed at the time the request for attorney's fees was submitted. On appeal, Complainants concede that all travel charges should be compensated at half the attorney's hourly rate. This comports with the Commission's position that an award of attorney's fees for time spent traveling should be compensable at a reduced rate of one half the attorney's normal hourly rate. See Black v. Dep't of the Army, EEOC Appeal No. 01943642 (Feb. 27, 1996). Therefore, Complainants' attorney should be compensated for travel at the "half rate," or $177.50 per hour. Complainants' fee petition requested attorney's fees for 47 hours spent traveling to and from Atlanta on the following dates: June 14, 2011 (6.5 hours); June 17, 2011 (5.75 hours); October 17, 2011 (6.0 hours); October 19, 2011 (6.0 hours); May 30, 2012 (5.5 hours); June 1, 2012 (10.00 hours); January 21, 2013 (5.0 hours); and January 22, 2013 (2.25 hours). Thus, Complainants' attorney is entitled to $8,342.50 for 47 hours of travel time instead of the requested $16,685.00. Finally, the AJ found that Complainants' attorney's fees award should be reduced because some of the charges were duplicative. However, we note that the AJ did not provide any reasoning or calculations related to this determination beyond his bare conclusion that he agreed with the Agency's arguments about this matter. The Agency argues that the following charges are duplicative or excessive: 1) time expended taking depositions of eight witnesses and Complainants; 2) time reviewing material and editing Complainant 1's initial discovery response; and 3) time spent drafting and editing Complainant 1's prehearing report. The Agency also did not provide any calculations to demonstrate how Complainants' attorney's fees should be reduced with respect to the alleged duplicative or excessive charges. Upon review, we find that that the record does not support the conclusion that these matters are duplicative or excessive. In so finding, we note that Complainants claimed 52.80 hours of attorney's fees for deposition activities regarding two claims on which they prevailed. These charges are not excessive in light of the fact that nine people were deposed. Moreover, the fee petition does not reflect that these charges are duplicative. Additionally, we do not find that the evidence supports the AJ's apparent conclusion that 7.20 hours charged for editing and drafting Complainant 1's discovery responses were duplicative. Likewise, there is no evidence that the 11 hours spent drafting Complainants 1's prehearing report was duplicative or excessive in this case. We find that these charges are reasonable in light of the complexity of the case, number of witnesses, and the fact that there are two complainants. Consequently, we find that the AJ's reduction of these requested charges is not supported by substantial evidence. In summary, Complainants' request for attorney's fees should be reduced by $8,342.50 because travel charges were not properly calculated at the "half rate" of $177.50 per hour. Complainants requested $122,294.75 in attorney's fees, and $7,707.71 in costs. Neither party contests the AJ's determination that Complainants are entitled to only $109.33 in costs. Therefore, we exercise our appellate discretion and decline to review the cost award. Consequently, after reducing Complainants' travel charges to reflect the correct hourly rate, we find that Complainants are entitled to $113,952.25 in attorney's fees and $109.33 in costs. CONCLUSION Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we MODIFY the Agency's final order and REMAND this matter to the Agency for further processing consistent with this decision and the ORDERS set forth below. ORDER To the extent the Agency has not already done so, the Agency is ORDERED to undertake the following remedial action which, unless otherwise specified, shall be accomplished within one hundred twenty (120) days of the date on which this decision becomes final: 1. Effective July 10, 2008, the Agency shall promote Complainants to the position of GS-13 Auditor, or a substantially equivalent position, at its Atlanta, Georgia facility. This retroactive placement shall presume Complainants have permanent employment status in the position and include all promotions and monetary remuneration attached to the position. 2. Determine the appropriate amount of back pay, with interest, and other benefits due Complainants, pursuant to 29 C.F.R. § 1614.501. Complainants shall cooperate in the Agency's efforts to compute the amount of back pay 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 Complainant for the undisputed amount within sixty (60) calendar days of the date the Agency determines the amount it believes to be due. 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." 3. The Agency shall also pay compensation for the adverse tax consequences of receiving back pay as a lump sum. Complainants have the burden of establishing the amount of increased tax liability, if any. Once the Agency has calculated the proper amount of back pay, Complainants shall be given the opportunity to present the Agency with evidence regarding the adverse tax consequences, if any, for which Complainants shall then be compensated. 4. The Agency shall pay Complainant 1 $65,000.00 in compensatory damages and Complainant 2 $50,000.00 in compensatory damages. 5. The Agency shall pay Complainants $113,952.25 in attorney's fees and $109.33 in costs. 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 the corrective action has been implemented. POSTING ORDER (G0914) The Agency is ordered to post at its Atlanta, Georgia Southeast Regional Office 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 Complainants have been represented by an attorney (as defined by 29 C.F.R. § 1614.501(e)(1)(iii)), they are 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 Complainants. If the Agency does not comply with the Commission's order, the Complainants may petition the Commission for enforcement of the order. 29 C.F.R. § 1614.503(a). The Complainants also have 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 Complainants have 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 Complainants 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 Complainants 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 (T0610) 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 (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 January 8, 2016 Date 1 This case has been randomly assigned pseudonyms which will replace Complainants' names when the decision is published to non-parties and the Commission's website. 2 We note that on March 27, 2015, Complainants filed appeals to the Commission in which each alleged that the Agency had not complied with its final order. These appeals have been docketed as EEOC Appeal No. 0120151584 (Complainant 2) and EEOC Appeal No. 0120151585 (Complainant 1), and are pending before the Commission at this time. Complainants' non-compliance allegations will be addressed by the Commission through those appeals. 3 For timeliness purposes, the date of initial EEO Counselor contact will be deemed to be the date on which the instant appeal was filed. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ 2 0120132145 2 0120132145, 0120132146