U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Wilda M.,1 Complainant, v. Jeh Johnson, Secretary, Department of Homeland Security (Transportation Security Administration), Agency. Appeal No. 0120142660 Agency No. HS-TSA-18219-2010 HS-TSA-22965-2012 Hearing No. 510-2012-00120X DECISION On July 29, 2014, Complainant filed an appeal from the Agency's June 27, 2014, final decision regarding compensatory damages and attorney's fees and costs involved with her equal employment opportunity (EEO) complaint alleging employment discrimination in violation of Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq. The Commission deems the appeal timely and accepts it pursuant to 29 C.F.R. § 1614.405(a). BACKGROUND At the time of events giving rise to this complaint, Complainant worked as an Assistant Federal Security Director for Law Enforcement at the Agency's facility in Orlando, Florida. Complainant filed two EEO complaints alleging that the Agency discriminated against her on the basis of disability (herniated/ruptured disk) and reprisal (opposing discriminatory practices by management) when she was subjected to harassment and disparate treatment. In support of her claims of harassment and discrimination, Complainant alleged some 57 events. One of the claims alleged by Complainant was a claim of an unlawful disclosure of Complainant's medical records to other employees in an email on March 17, 2010. At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation and notice of her right to request a hearing before an Equal Employment Opportunity Commission Administrative Judge (AJ). Complainant initially requested a hearing but later requested a final decision by the Agency. The AJ dismissed the hearing request and remanded the matter back to the Agency in accordance with Complainant's request for an immediate final decision on July 10, 2013. In accordance with the AJ's order, on December 24, 2013, the Agency issued a final decision pursuant to 29 C.F.R. § 1614.110(b). The decision concluded that Complainant proved that the Agency subjected her to discrimination as alleged with respect to the single claim regarding the improper disclosure of her medical information in violation of the Rehabilitation Act. The Agency ordered remedial action including asking Complainant to submit documentation to support her claim for compensatory damages and fees and costs for her attorney (Attorney). Complainant submitted a memoranda and documentation in support of her claim for compensatory damages on February 26, 2014. In addition, the Attorney provided a statement of his claim for fees and costs. Complainant requested $300,000 in non-pecuniary losses. Complainant asserted in her statement that this was "one of the worst days of [her] life." She indicated that she was emotionally panicked and had never "felt this type of shock or pain so deep in [her] heart." Complainant asserted that she began losing sleep and felt anger, fear and humiliation. She indicated that her skin broke out in hives and she felt her blood pressure was though the roof. Complainant's husband provided a statement in support indicating that she became depressed all the time and caused her to lack motivation and negatively impacted her workout routine. He noted that Complainant consumed more alcohol and sweets and she became nervous after her medical records were shared. Complainant's doctor also provided a letter indicating that Complainant came in in July 2012, indicating she was under extreme stress at work including her medical records being shared in the workplace. In its final decision, the Agency found that Complainant established a nexus between the unlawful medical disclosure and some emotional distress. However, the Agency found that Complainant's request for $300,000 was monstrously excessive. Based on the harm and the Commission's cases precedent, the Agency awarded Complainant $ 4,000 in non-pecuniary damages. Complainant's Attorney provided his statement of hours expended on Complainant's complaint. The Attorney sought 125 hours of his time at a rate of $500 per hour. In addition, he requested fees for work conducted by a contract attorney (Contract Attorney) at a rate of $250 per hour; for work by his paralegals at a rate of $165 per hour for one paralegal (Paralegal 1) and $130 for three other paralegals (Paralegal 2, 3, and 4). In total, the Attorney sought $ 91,115.54 in fees. The Attorney included two statements from attorneys in Florida indicating that the hourly rates for the Attorney, Paralegal 1 and Paralegal 2 were comparable to similarly situated attorneys in Central Florida. The Attorney indicated that Complainant should also be compensated for her time expended working on the claim at hand. In its final decision, the Agency reduced the number of hours claimed, noting that Complainant alleged a hostile work environment including some 56 incidents. The Agency determined that Complainant prevailed on only one claim of unlawful medical disclosure which involved a separate legal claim than the 56 other incidents of alleged harassment. As such, the Agency reduced the Attorney's hours to 5 hours and 8 hours for Paralegal 3. The Agency also reduced the hourly rate for the Attorney from $500 to $300, citing district court decisions involving the Fair Labor Standards Act and other employment cases. The Agency also reduced the rate for the paralegals to $95 per hour. In sum, the Agency concluded that Complainant was entitled to $2,510 in fees for the Attorney and Paralegal 3. Finally, the Attorney indicated that he expended $18,086.40 in costs for litigating the instant matter. The Agency disallowed $1,840 expenses for which the Attorney failed to provide documentation for a court reporter. In addition, another $1,256.54, was denied by the Agency for expenses for items such as meals, tolls, postage and photocopying which again were not documented. The Agency found that the only expenses which were documented and not contested by the Agency involved the cost of $ 5,465.20 for depositions. However, due to the limited success of Complainant, the Agency reduced this amount to $ 150 for deposition fees in proportion to the degree of success. This appeal followed. ANALYSIS AND FINDINGS As this is an appeal from a decision issued without a hearing, pursuant to 29 C.F.R. § 1614.110(b), the Agency's decision is subject to de novo review by the Commission. 29 C.F.R. § 1614.405(a). See Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614, at Chapter 9, § VI.A. (Aug. 5, 2015) (explaining that the de novo standard of review "requires that the Commission examine the record without regard to the factual and legal determinations of the previous decision maker," and that EEOC "review the documents, statements, and testimony of record, including any timely and relevant submissions of the parties, and . . . issue its decision based on the Commission's own assessment of the record and its interpretation of the law"). This appeal is solely confined to the relief ordered for the Agency's disclosure of Complainant's medical condition in violation of the Rehabilitation Act. When discrimination is found, the Agency must provide the Complainant with a remedy that constitutes full, make-whole relief to restore him as nearly as possible to the position she would have occupied absent the discrimination. See, e.g., Franks v. Bowman Transp. Co., 424 U.S. 747, 764 (1976); Albemarle Paper Co. v. Moody, 422 U.S. 405, 418-19 (1975); Adesanya v. U.S. Postal Serv., EEOC Appeal No. 01933395 (July 21, 1994). Pursuant to section 102(a) of the Civil Rights Act of 1991, a Complainant who establishes unlawful intentional discrimination under either Title VII of the Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. § 2000e et seq, or Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq. may receive 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) as part of this "make whole" relief. 42 U.S.C. § 1981a(b)(3). In West v. Gibson, 119 S.Ct. 1906 (1999), the Supreme Court held that Congress afforded the Commission the authority to award compensatory damages in the administrative process. 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. 42 U.S.C. § 1981a(b)(3). Non-pecuniary Damages Non-pecuniary losses are losses that are not subject to precise quantification, i.e., emotional pain, suffering, inconvenience, mental anguish, loss of enjoyment of life, injury to professional standing, injury to character and reputation, injury to credit standing, and loss of health. See EEOC Notice No. 915.302 at 10 (July 14, 1992). There is no precise formula for determining the amount of damages for non-pecuniary losses except that the award should reflect the nature and severity of the harm and the duration or expected duration of the harm. See Loving v. Dep't of the Treasury, EEOC Appeal No. 01955789 (Aug. 29, 1997). The Commission notes that non-pecuniary compensatory damages are designed to remedy the harm caused by the discriminatory event rather than punish the Agency for the discriminatory action. Furthermore, compensatory damages should not be motivated by passion or prejudice or "monstrously excessive" standing alone but should be consistent with the amounts awarded in similar cases. See Ward-Jenkins v. Dep't of the Interior, EEOC Appeal No. 01961483 (Mar. 4, 1999). Evidence from a health care provider or other expert is not a mandatory prerequisite for recovery of compensatory damages for emotional harm. See Lawrence v. U.S. Postal Serv., EEOC Appeal No. 01952288 (Apr 18, 1996) (citing Carle v. Dep't of the Navy, EEOC Appeal No. 01922369 (Jan. 5, 1993)). Objective evidence of compensatory damages can include statements from Complainant concerning his emotional pain or suffering, inconvenience, mental anguish, loss of enjoyment of life, injury to professional standing, injury to character or reputation, injury to credit standing, loss of health, and any other non-pecuniary losses that are incurred as a result of the discriminatory conduct. Id. Statements from others including family members, friends, health care providers, other counselors (including clergy) could address the outward manifestations or physical consequences of emotional distress, including sleeplessness, anxiety, stress, depression, marital strain, humiliation, emotional distress, loss of self-esteem, excessive fatigue, or a nervous breakdown. Id. Complainant's own testimony, along with the circumstances of a particular case, can suffice to sustain his burden in this regard. Id. The more inherently degrading or humiliating the defendant'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. Id. Upon review of the record and the Agency's decision, we find that its award of $ 4,000 is appropriate. We note that the finding by the Agency was the single event that involved an illegal disclosure of medical information. The Commission notes that this award is not "monstrously excessive" standing alone, is not the product of passion or prejudice, and is consistent with the amount awarded for impermissible disclosures. See e.g., Reddish v. U.S. Postal Serv., EEOC Appeal No. 0720070068 (Apr. 28, 2009) ($4,000 awarded for finding of reprisal resulting in embarrassment, humiliation, distress, headaches and elevated blood pressure); Spencer v. Dep't of the Treas., EEOC Appeal No. 07A10035 (May 6, 2003) ($5,000 awarded for complainant's complaints of dejection, stress, and emotional pain); Brooks v. U.S. Postal Serv., EEOC Appeal No. 01996915 (Oct. 12, 2001) ($6,000 in non-pecuniary damages awarded for depression, anger, aggravation of high blood pressure, and adverse effects on family life). As such, we affirm the Agency's award of non-pecuniary compensatory damages. Attorney's Fees 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. 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). The circumstances under which the lodestar may be adjusted are extremely limited, and are set forth in EEO Management Directive 110. Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 at 11-13 (EEO MD-110) (Aug. 15, 2015). In cases where claims are distinctly different, "work on an unsuccessful claim cannot be deemed to have been expended in pursuit of the ultimate result achieved." Hensley v. Eckerhart, 461 U.S. 424, 435 (1983). However, in cases where a claim for relief involves "a common core of facts or will be based on related legal theories" a fee award should not be reduced simply because the plaintiff failed to prevail on every contention raised in the lawsuit. Id. "The hours spent on unsuccessful claims should be excluded in considering the amount of a reasonable fee only where the unsuccessful claims are distinct in all respects from the successful claims." See EEO MD-110, at 11-14 (citing Hensley 461 U.S. 424). The degree of success is an important factor in calculating an award of attorney's fees. Farrar v. Hobby, 506 U.S. 103 (1992). In determining the degree of success, the Commission will consider all relief obtained in light of a complainant's goals, and, if a complainant achieved only limited success, she should recover fees that are reasonable in relation to the results obtained. Hensley, 461 U.S. at 434. While a reasonable fee should not be determined simply by mathematical formula, hours spent on unsuccessful claims should be excluded from the amount of a reasonable fee. Id. Where the Complainant achieved only limited success, Complainant should receive only the amount of fees that is reasonable in relation to the results obtained. Hensley v. Eckerhart, 461 U.S. 424 (1983); Cemy v. Dep't of the Navy, EEOC Request No. 05930899 (Oct. 19, 1994). In total, Complainant requested $110,401.94 in attorney's fees, of which $18,086.40 was payment for time expended by Complainant herself. As an initial matter, we find that the Agency properly excluded any payment in legal fees for time expended by Complainant herself on her complaint. See 29 C.F.R. § 1614.501(e)(1)(iii). With regard to the remaining claim, the Commission finds that the record supports the Agency's decision to reduce the amount requested in fees and costs as submitted by the Attorney. In light of Complainant's limited success in prevailing on only one of the claims, the simpler set of facts, and the narrowness of that issue, the Commission finds that the Agency's reduction of the number of hours reasonably expended on the adjudication of the successful claim is well supported. First, we note that the hours expended by the Contract Attorney and Paralegal 1, 2 or 4 do not adequately indicate that they were connected to work involving the claim upon which Complainant prevailed. As such, we disallow the hours expended by the Contract Attorney and Paralegal 1. The Agency then reduced the Attorney's hours from 125.50 hours to 5 hours based on Complainant prevailing on a single claim out of some 57 events. However, the Agency failed to adequately explain how it arrived at the 5 hours. In a case such as this where there may be some intermingle of time and effort between the successful and unsuccessful claims, a percentage reduction is justified. In this case, due to the very limited success, we find that a reduction of 90% of the claimed hours is appropriate. Therefore, we find that the Attorney should be compensated for 12.5 hours (10% of the claimed 125.50). Similarly, Paralegal 3's claimed hours should be reduced to 13 hours. The Agency reduced the hourly rate for the Attorney and Paralegal 3, citing district court decisions. However, we find that the Attorney properly supported his hourly rate with supporting affidavits from other practitioners in the area. The Agency had no specific evidence to support their decision to reduce the hourly rates. As such, we find that the hourly rates to use for calculation of fees for the Attorney and Paralegal 3 are $500 and $130 per hour, respectively. Therefore, we find that the fees should be calculated as follows: Hourly Rate Hours Requested Hours Allowed Total Attorney $ 500 125.50 12.5 $ 6,250 Contract Attorney $ 250 21.10 0 0 Complainant $ 56.52 320 0 0 Paralegal 1 $ 165 1.4 0 0 Paralegal 2 $ 130 23.40 0 0 Paralegal 3 $ 130 128.90 13 $ 1,690 Paralegal 4 $ 130 11.30 0 0 Finally, as to Complainant's claim for costs, the Attorney indicated that the Attorney provided a list of expenses, but failed to provide supporting documentation for expenses for postage, meals, mileage, and bank fees. In addition, the Attorney stated that there were several expenses such as court reporter and depositions. The expenditures were not separated between Complainant's unsuccessful claim of hostile work environment and the single incident of illegal medical disclosure. We find no reason to modify the Agency's award of $150, reducing the requested costs based the degree of success. 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 award of fees to Complainant and AFFIRM the Agency's award of costs and compensatory damages. ORDER To the extent it has not already, the Agency is ordered to take the following remedial action: 1. Pay Complainant $4,000 in non-pecuniary compensatory damages within 30 days from the date this decision is issued. 2. Pay Complainant $7,940 in attorney's fees and $150 legal costs within 30 days from the date this decision is issued. 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 (H1016) 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 the date this decision was issued. 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 (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 (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 December 2, 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 0120142660 2 0120142660