U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Eve E.,1 Complainant, v. Jeh Johnson, Secretary, Department of Homeland Security (Transportation Security Administration), Agency. Appeal Nos. 0120141606 0120161392 Agency No. HS-TSA-18220-2010 DECISION On March 21, 2014, Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from the Agency's February 21, 2014 final decision concerning an award of compensatory damages for her 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 was docketed as EEOC Appeal No. 0120141606. On February 22, 2016, Complainant filed a second appeal when the Agency failed to issue a final decision on her request for attorney's fees and costs. This appeal was docketed as EEOC Appeal No. 0120161392. We consolidate these two appeals for a single decision pursuant to our authority under 29 C.F.R. § 1614.606. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Transportation Security Officer at the Agency's Durango-La Plata County Airport facility in Durango, Colorado. On January 17, 2011, Complainant filed a formal EEO complaint alleging that the Agency discriminated against her on the bases of sex (female) and reprisal for prior protected EEO activity when, on September 19, 2010, her Transportation Security Manager lowered her Performance Accountability Standards System (PASS) score without justification or notification. The matter was accepted for investigation. Following the investigation, Complainant initially requested a hearing before an EEOC Administrative Judge (AJ). She subsequently withdrew her request in favor of a final decision by the Agency. On December 26, 2012, the Agency issued its final decision concluding the evidence failed to establish sex discrimination, but did establish that Complainant had been subjected to unlawful retaliation when her PASS was lowered without explanation or notification. As relief, among other things, the Agency asked Complainant to provide additional evidence in support of her claim for compensatory damages within 60 calendar days. In addition, the Agency noted that Complainant was entitled to attorney's fees and costs.2 The Agency provided Complainant 30 calendar days to submit a fee petition. On February 14, 2013, the Agency was notified that Complainant had retained new attorneys to prepare her compensatory damages claim. The Attorneys asked for a 30-day extension to file her evidence and arguments in support for her entitlement to compensatory damages. The Attorneys followed up their extension request via emails. Receiving no response to their extension request by February 25, 2013, the Attorneys submitted Complainant's evidence in support of her claim for compensatory damages.3 On February 26, 2013, the Agency granted the extension. Subsequently, on March 28, 2013, the Attorneys submitted a supplemental submission requesting $ 50,000 in non-pecuniary damages. The submissions included a statement from Complainant, her family members and coworkers in support of her request for non-pecuniary damages. After learning of the lowered PASS score, Complainant indicated that she experienced a whole gambit of emotions from anger to frustration. She became more irritable and felt the strain of trying to keep up a professional attitude. She stated that she had to go home and break down a lot of days. She also noted that she suffered from depression and emotional distress. She averred that her depression was "like a cloud which affects every aspect" of her life. She also indicated that the Agency's action affected her relationships with family and friends and she noted that she became withdrawn. Complainant also noted the physical toll the retaliation took on her. She said she slept poorly and woke up with worry over what management could do to her. She dreaded going into the office and suffered from stress, headaches, and stomach aches. Finally, Complainant asserted that her professional reputation was also damaged. Complainant's sister (Sister) averred that it was "miserable" to watch how Complainant was affected by the Agency's retaliatory action. The Sister stated that Complainant told her about the lowering of her PASS score and she noted Complainant's shock and anger. She noted that Complainant's excitement for work diminished and she was on edge with work and family. She also stated that Complainant was depressed, discouraged, and stressed. The Sister supported Complainant's assertion that the Agency's action affected Complainant's sleep and caused nightmares. Complainant's father (Father) also provided an affidavit in support of her request for non-pecuniary damages. He indicated that Complainant was in disbelief that anyone would lower her PASS score, but then the shock turned to anger. He stated that her coworkers would make fun of her and she was demeaned by the event. The Father saw his daughter turn from a "happy-go-lucky" person into a depressed person who worried about her mental condition. He also supported Complainant's assertion that the discriminatory act cause great anxiety and sleeping problems. Several statements from coworkers were also submitted. One coworker noted that everyone in the Airport knew about the rating change and it was humiliating for Complainant. She indicated that Complainant became angry and depressed and that she is still in a hostile work environment. Another coworker averred that Complainant was devastated by the change in her PASS rating. She also noted that Complainant was demoralized and that the discriminatory event has taken the joy and spirit out of "this wonderful woman." In its February 21, 2014 decision, the Agency determined that Complainant's request for $ 50,000 was excessive. The Agency found that $ 5,000 was a more appropriate award. The Agency found that this award was more in line with other decisions by the Commission involving similar emotional pain and suffering as stated by Complainant. The Agency noted that the Commission has provided $ 1,500 to $15,000 in non-pecuniary damages in cases involving anger, sleeplessness, withdrawal, and humiliation. Based on the severity, nature, and duration of the discrimination, the Agency found that $ 5,000 was a more appropriate award in non-pecuniary damages. The Agency then turned to Complainant's entitlement to an award of fees and costs for her attorney. The Agency noted that the Attorneys did not provide a submission for fees and costs. Instead, the Attorneys indicated that they would file a submission 30 days after the Agency's determination on entitlement to compensatory damages. Since the Attorneys did not provide any fee petition, the Agency concluded that Complainant did not show an entitlement to fees and costs. Complainant filed the instant appeal (EEOC Appeal No. 0120141606) from the Agency's February 21, 2014 final decision. On March 12, 2014, following the Agency's award of compensatory damages, Complainant submitted a request for fees and costs for the Attorneys. The Attorneys noted that they did not represent Complainant until after the Agency had issued its finding of discrimination and were retained to represent Complainant during the adjudication of her claim for compensatory damages. Now that Complainant had prevailed with respect to her entitlement to compensatory damages, the Attorneys were seeking an award of fees and costs for the work performed in association with the compensatory damages award. The Attorneys requested $ 24,601.50 in fees and $ 167.19 in costs. On February 22, 2016, when the Agency failed to take action on the Attorneys' submission for fees and costs, Complainant filed another appeal (EEOC Appeal No. 0120161392). Complainant noted that the Agency responded to the fee petition on May 6, 2014 and May 9, 2014. However, the Agency has not issued a final decision on fees and costs for the Attorneys. ANALYSIS AND FINDINGS Non-Pecuniary Compensatory Damages Compensatory damages are awarded to compensate a complaining party for losses or suffering inflicted due to discriminatory acts or conduct. Enforcement Guidance: Compensatory and Punitive Damages Available Under Section 102 of the Civil Rights Act of 1991 EEOC Notice No. 915.002, at 5 (July 14, 1992) (hereinafter Enforcement Guidance). Compensatory damages include damages for past pecuniary loss (out-of-pocket expenses), future pecuniary loss (likely future out-of-pocket expenses), and non-pecuniary loss (emotional harm). See Id. Damages are available for pain, suffering, inconvenience, mental anguish, loss of enjoyment of life, injury to professional standing, character, or reputation, and other intangible injuries that result from discriminatory conduct. Id. at 7. Awards for emotional harm are warranted only if Complainant establishes a sufficient causal connection between the Agency's illegal actions and her injury. Id. Such awards are limited to the amount necessary to compensate Complainant for actual harm and should take into account the severity of the harm and the length of time Complainant has suffered from the harm. Coopwood v. Dep't. of Transp., EEOC Appeal No. 0120083127 (May 2, 2012) citing Carpenter v. Dep't. of Agric., EEOC Appeal No. 01945672 (July 17, 1995). To establish the existence of intangible injury, Complainant can submit objective evidence, as well as other types of evidence, including: a statement by the complainant, explaining how the discrimination affected the complainant; statements from others, including family members, friends, and health care providers, that address the outward manifestations of the impact of the discrimination on the complainant; documentation of treatment related to the effects of the discrimination. Coopwood, supra citing Carle v. Dep't. of the Navy, EEOC Appeal No. 01922369 (Jan. 5, 1993). Complainant provided a statement in support of her claim for non-pecuniary damages. She also included supporting statements from her family and coworkers. In these statements, Complainant indicated that she experienced anxiety, humiliation and sleeplessness due to the unlawful retaliation. Complainant did not indicate how long the depression and change in her "happy-go-lucky" personality lasted. Based on the evidence provided by Complainant, the nature of the unlawful retaliation and Commission precedent, we find that the Agency's award of $ 5,000 was appropriate. See Bell v. Dep't. of the Army, EEOC Appeal No. 01A13150 (Aug. 8, 2002) (awarding $ 5,000 to Complainant who was subjected to retaliation in her performance ratings where she provided evidence including statement from her spouse that she experienced stress and worry, and received medical treatment for 5 months for acute anxiety); Padgett v. U.S. Postal Serv., EEOC Appeal No. 01A24518 (July 28, 2003) (providing $ 5,000 for retaliatory termination from a transitional position to Complainant who experienced depression, personality changes, restlessness, helplessness, and mental anguish); Mar v. U.S. Postal Serv., EEOC Appeal No. 01A24879 (Sept. 24, 2003). (awarding Complainant $ 5,000 for retaliatory reduction in pay for eight months where she indicated she suffered humiliation, anxiety, stress, and depression as a result of the discrimination and sought assistance from the Employee Assistance Program Counselor who diagnosed her with Adjustment Disorder). Attorneys' fees and costs The Commission's regulations authorize the award of reasonable attorney's fees and costs to a prevailing Complainant. 29 C.F.R. § 1614.501(e). See also EEOC's Management Directive 110 (MD-110) at 11-9 (Aug. 5, 2015). Here, Complainant was not represented by the Attorneys until January 25, 2013, after the Agency had issued its decision finding unlawful retaliation. As such, Complainant correctly did not submit a fee petition. Therefore, we clarify the Agency's February 21, 2014 final decision by stating that Complainant did not seek fees and costs because she did not have an attorney at that time. Subsequently, the Attorneys indicated that they represented Complainant when she was the prevailing party with respect to her claim for compensatory damages. As such, the Attorneys submitted a fee petition with the Agency on March 12, 2014, following the Agency's final decision on compensatory damages. To date, the Agency has failed to take action on the Attorneys' submission. Due to the Agency's failure to act, Complainant filed a new appeal in 2016 asking that the Commission to require the Agency to act on her request for attorneys' fees and costs associated with her entitlement to compensatory damages. We find that Complainant is correct in that she was the prevailing party when she was provided with remedy in the form of non-pecuniary damages. The Attorneys have provided their fee petition to the Commission which demonstrated that they expended hours working on Complainant's claim for compensatory damages. The Attorneys also provided affidavits regarding their hourly rates based on the "Laffey matrix." Although the Agency has failed to act on the Complainant's fee petition, for the sake of administrative economy, we shall address Complainant's entitlement to fees and costs for the Attorneys. Attorney's fees and costs shall be awarded in accordance with 29 C.F.R. § 1614.501(e). In federal EEO law, there is a strong presumption that a complainant who prevails in whole or in part on a claim of discrimination is entitled to an award of attorney's fees and costs. More specifically, complainants who prevail on claims alleging discrimination in violation of Title VII of the Civil Rights Act of 1964, as amended, and the Rehabilitation Act of 1973, as amended, are presumptively entitled to an award of attorney's fees and costs, unless special circumstances render such an award unjust. 29 C.F.R. § 1614.501(e)(1). Fee awards are typically calculated by multiplying the number of hours reasonably expended times a reasonable hourly rate, an amount also known as a lodestar. See 29 C.F.R. § 1614.501(e)(ii)(B); Hensley v. Eckerhart, 461 U.S. 424, 434 (1983); MD-110 at 11-13. The number of hours should not include excessive, redundant, or otherwise unnecessary hours. Hensley, 461 U.S. at 434; Bernard v. Dep't. of Veterans Affairs, EEOC Appeal No. 01966861 (July 17, 1998). The attorney requesting an award has the burden of proving, by specific evidence, entitlement to the requested fees and costs. Koren v. U.S. Postal Service, EEOC Request No. 05A20843 (Feb. 18, 2003). An application for attorney's fees must include a verified petition accompanied by an affidavit executed by the attorney of record itemizing each expense comprising the attorney's charges for legal services, together with bills, receipts, or other appropriate documentation. 29 C.F.R. § 1614.501(e)(2)(ii)(B); MD-110 at 11-17. While the attorney is not required to record in great detail the manner in which each minute of 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. See Spencer v. Dep't. of the Treasury, EEOC Appeal No. 07A10035 (May 6, 2003). As to the reasonable hourly rate, the Attorneys provided affidavits to support their respective rates. The Attorneys relied on the Laffey matrix for 2013-2014 to support their rates. 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, 895 (1984). We note that the Commission and courts generally use the Laffey matrix to determine the hourly rate for Washington, D.C. area attorneys. The Laffey matrix, which has its origins in the case of Laffey v. Northwest Airlines Inc., 572 F. Supp. 354 (D.D.C. 1983), reversed in part on other grounds, 746 F.2d 4 (D.C. Cir. 1984), is a chart compiled yearly by the United States Attorney's Office in the District of Columbia. It provides a schedule of hourly rates prevailing in the Washington, D.C., area in each year, going back to 1981, for attorneys at various levels of experience. Piper v. U.S. Dep't of Justice, 339 F. Supp. 2d 13, 24 n. 8 (D.D.C. 2004); see also Ela O. v. Nat'l Sec. Agency, EEOC Appeal No. 0720130021, (Oct. 30, 2015). Upon review, we find that the Attorneys have supported their reasonable hourly rate. We now turn to the Attorneys' hours. Upon review of the Attorneys' submission, we find that the Attorneys provided for several hours which are beyond the time expended working on Complainant's claim for compensatory damages. The Attorneys listed several entries involving items such as Complainant's claim with the Office of Workers Compensation Programs (OWCP), discussions regarding options on appeal, next steps, and actions taken after the Agency issued its final decision on compensatory damages.4 For the Attorneys' work performed at the appeals stage for an award of fees, such fees are provided if the Complainant prevails at this stage. See MD-110 at 11-13. Based on our review, we find that such entries are outside of the scope of hours expended on Complainant's claim for compensatory damages with the Agency and should be excluded. Therefore, we find the following hours and rates are allowed: Attorney/Legal Staff5 Hours Expended Hourly Rate Total AAA 7.2 $ 145 $ 1,044.00 ABS 1.8 $ 145 $ 261.00 AOA 1.0 $ 145 $ 145.00 DB 0.1 $ 145 $ 14.50 DS 13.4 $ 295 $ 3953.00 EM6 69.1 $ 145 $ 10,019.50 ER 0.9 $ 145 $ 130.50 GMG 1.2 $ 510 $ 612.00 MD 0.4 $ 250 $ 100.00 SH 7.4 $ 295 $ 2,183.00 Total $ 18,462.50 The Attorneys also provided a list of costs incurred. Reasonable costs can include court reporter fees, transcripts, printing, witnesses, photocopying, mileage, postage, telephone calls, or any other reasonable out-of-pocket expense incurred by the representative in the normal course of providing representational services. 29 C.F.R. § 1614.501(e)(2)(ii)(C); MD-110 at 11-12 and 11-13. The Attorneys submitted a list of costs which included postage, photocopying, faxing, "new file set up fee," and online legal research. We note that several of the photocopying and postage involved the submissions, responses, and checking status of Complainant's claim for compensatory damages. We find that the Attorneys supported their request for $ 167.19 in costs. CONCLUSION We AFFIRM the Agency's final decision awarding Complainant $ 5,000.00 in compensatory damages. In addition, we determine that the Agency shall provide Complainant with $ 18,462.50 in fees for her Attorneys and $ 167.19 in costs. ORDER To the extent that it has not already done so, the Agency is ORDERED to take the following remedial action within twenty (20) calendar days of when this decision becomes final: 1. The Agency shall pay Complainant $ 5,000.00 in compensatory damages. 2. The Agency shall pay Complainant $ 18,462.50 in attorney's fees and $ 167.19 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. ATTORNEY'S FEES (H0610) If Complainant has been represented by the Attorneys (as defined by 29 C.F.R. § 1614.501(e)(1)(iii)), she is entitled to an award of reasonable Attorneys' fees incurred in the processing of EEOC Appeal No. 0120161392. 29 C.F.R. § 1614.501(e). The award of Attorneys' fees shall be paid by the Agency. The Attorneys 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 Attorneys' 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 (M0416) 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. The requests may be submitted via regular mail to P.O. Box 77960, Washington, DC 20013, or by certified mail to 131 M Street, NE, Washington, DC 20507. 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 May 24, 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 We note that Complainant had not been represented by an attorney up to this point in the processing of her complaint. 3 The Attorneys provided copies of emails indicating that they were trying to get an answer to their extension request up to February 25, 2013. As late as 5:48 p.m., the Agency responded that they did not have an answer for the Attorneys on the request. 4 We note that some of these entries were marked as "no charge." However not all were designated as such. 5 We note that the Attorneys indicated that the work done on Complainant's compensatory damages submissions was completed by a team of individuals at the firm. A prevailing complainant is entitled to compensation for the work of law clerks, paralegals, and law students under the supervision of members of the bar, at market rates, 29 C.F.R. § 1614.501(e)(1)(iii), but not for clerical services. Missouri v. Jenkins, 491 U.S. 274 (1989). MD 110 at 11-13. 6 We note that EM began working on Complainant's legal matter as a paralegal/Law Clerk. Subsequently, EM was hired as an attorney in January 2014. However, the work he performed involved drafting and preparing appeal filings. Therefore, EM's work as an attorney was outside of the scope of the compensatory damages award by the Agency. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ 2 0120141606 10 0120141606 & 0120161392