U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Alvera L,1 Complainant, v. John F. Kelly, Secretary, Department of Homeland Security (Immigration and Customs Enforcement), Agency. Appeal No. 0120150446 Agency No. HS-ICE-21825-2012 DECISION On November 3, 2014, Complainant filed an appeal with this Commission from the Agency's October 21, 2014 decision on compensatory damages and attorney's fees for a 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 accepts the appeal pursuant to 29 C.F.R. § 1614.405(a). For the following reasons, the Agency's decision is AFFIRMED. ISSUES PRESENTED The issues presented are: (1) whether Complainant is entitled to a pecuniary compensatory damages award; (2) whether Complainant's $20,000 award of non-pecuniary compensatory damages is sufficient; and (3) whether Complainant's $13,409.50 attorney's fees award is adequate. BACKGROUND During the period at issue, Complainant worked as a Supervisory Detention and Deportation Officer (SDDO)2 at the Agency's Immigration and Customs Enforcement facility in Atlanta, Georgia. On May 16, 2012, she filed a formal complaint in which she alleged discrimination on the bases of race (Caucasian), sex (female), age (53), and reprisal for prior protected EEO activity when she was not selected for the SDDO position in January 2012, and harassed in April 2012. After investigating the allegations contained in the complaint, the Agency issued a final decision in which it found Complainant had established discrimination regarding her non-selection but not with respect to her harassment claim.3 Pursuant to an Agency's order, Complainant submitted proof of damages in order that the Agency could determine the amount of compensatory damages and attorney's fees to which she was entitled. Upon reviewing Complainant's proof of damages, the Agency concluded that Complainant was not entitled to pecuniary compensatory damages, but was entitled to $20,000 in non-pecuniary compensatory damages, and an attorney's fee award of $13,409.50.4 Complainant thereafter filed this appeal. CONTENTIONS ON APPEAL On appeal, Complainant contends that she is entitled to pecuniary compensatory damages. Complainant further contends that she demonstrated she is entitled to more than $20,000 in non-pecuniary compensatory damages because of the impact the discrimination had on her quality of life and familial relationships. Finally, she contends the Agency inappropriately adjusted downward the lodestar rate resulting in her being awarded a lesser amount of attorney's fees than that to which she was otherwise entitled. For its part, the Agency requests that we affirm in its entirety its final determinations regarding compensatory damages and attorney's fees. STANDARD OF REVIEW In determining the appropriate type and amount of relief due Complainant because of the Agency's discrimination, we review the propriety of the remedies awarded de novo (or "anew"). See 29 C.F.R. § 1614.405(a). This means that in deciding this case, we must "examine the record without regard to the factual and legal determinations" of the Agency, "review the documents, statements, and testimony of record, including any timely and relevant submissions of the parties," and then issue our decision "based on the Commission's own assessment of the record and ... interpretation of the law." Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at 9-15 (Aug. 5, 2015). Accordingly, we have carefully reviewed the entire record before us in discerning whether a preponderance of the evidence warrants a modification of the Agency's remedy award. See 29 C.F.R. § 1614.405(a). Complainant's contentions on appeal are addressed in one or more of the sections below. ANALYSIS AND FINDINGS Compensatory Damages When discrimination is found, the Agency must provide the complainant with a remedy that constitutes full, make-whole relief to restore her as nearly as possible to the position she would have occupied absent the discrimination. 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 (Jul. 21, 1994). In West v. Gibson, the Supreme Court held that Congress afforded the Commission the authority to award compensatory damages in the administrative process. 527 U.S. 212 (1999). 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). To receive an award of compensatory damages, Complainant must demonstrate that she has been harmed by the Agency's discriminatory action; the extent, nature, and severity of the harm; and the duration or expected duration of the harm. Rivera v. Dep't of the Navy, EEOC Appeal No. 01934157 (Jul. 22, 1994), req. for recons. den., EEOC Request No. 05940927 (Dec. 11, 1995); Enforcement Guidance: Compensatory and Punitive Damages Available Under Section 102 of the Civil Rights Act of 1991, EEOC Notice No. 915.002 (July 14, 1992), at 11-12, 14 (hereinafter Guidance). Pecuniary Compensatory Damages Pecuniary losses are out-of-pocket expenses that are incurred because of the employer's unlawful action, including moving expenses, medical expenses, psychiatric expenses, physical therapy expenses, and other quantifiable out-of-pocket expenses. Guidance at 14. For claims seeking pecuniary damages, objective evidence should include documentation of out-of-pocket expenses for all actual costs and an explanation of the expense, e.g., medical billings, other costs associated with the injury caused by the agency's actions, and an explanation for the expenditure. Id. at 9. On appeal, Complainant argues that there is no statutory requirement for her to present documentation concerning the medical fees that support her claim for pecuniary losses. While conceding that she did not provide documentation regarding the cost of the braces she had to wear to combat the stress-induced teeth grinding she claims arose from the Agency's discriminatory action, Complainant asserts that she did provide testimony in that regard. Complainant goes on to argue that she submitted the Agency a receipt from an MRI and such evidence, and that coupled with her testimony, this is sufficient to establish that she incurred out-of-pocket expenses for braces arising from the Agency's discrimination. Complainant maintains that, at a minimum, she should be compensated for the cost of the MRI. See Complainant's November 18, 2014 [Complainant's] Brief in Support of Appeal (Complainant's Brief), 6. In sum, Complainant believes she is entitled to a pecuniary damages award of $3,100.00. See Complainant's June 27, 2014 Statement regarding Compensatory Damages (Complainant's Statement), 2. Upon review, we conclude that Complainant did not provide specific evidence in the form of medical receipts, bills, or other objective documentation tending to support her claim for out-of-pocket expenses relating to the Agency's discrimination, and therefore has not provided sufficient evidence showing she is entitled to an award for pecuniary damages. While Complainant did provide a medical receipt from a medical healthcare provider showing she underwent an MRI of her brain, brain stem, face, and neck, there is no objective evidence linking this expense to teeth-grinding resulting from the Agency's discrimination. See Complainant's Brief, Plaintiff's Exhibit A. Based on this evidence, we find that Complainant is not entitled to pecuniary compensatory damages. Non-pecuniary Compensatory 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. 915.002 at 10 (Jul. 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 Treas., EEOC Appeal No. 01955789 (Aug. 29, 1997). We note 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 the Complainant concerning her 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 because 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 case, can suffice to sustain her 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. Complainant believes she is entitled to a non-pecuniary damage award in the amount of $150,000.00. According to Complainant, she suffered stress, anxiety, loss of enjoyment of life, and loss of a second income as a direct result of the discriminatory and disparate treatment she endured because of the Agency's action. See Complainant's Statement, 2. Complainant states that over the course of six years, she was consistently non-selected for acting supervisory roles as a Deportation Officer (DO). She contends that the resulting disappointment she endured from failing to be selected for acting supervisory positions caused her further anxiety and stress. Id., 3. She further states that the anxiety and stress she suffered compounded to the point that it began to impact her family and home life. Complainant notes that her sister testified that she was always very stressed and ill-tempered with everyone such that it caused trouble in her personal life with her family and eventually caused her to lose her relationship with her partner and her partner's daughter, whom Complainant had raised since the age of three. Id. Complainant also testified that because of the Agency's treatment, she could no longer hold her family together. Id. Another witness testified that Complainant suffered humiliation by describing a situation where Complainant's supervisor implied to a group of employees that she did not select Complainant for a position, regardless of the panel's recommendation, based on Complainant's prior EEO activity. Id., 3-4. In sum, Complainant's Statement reveals that she is seeking non-pecuniary damages for the emotional harm she suffered resulting from the Agency's decision not to select her for the SDDO position in January 2012; when she was not selected for several acting supervisory DO roles over the course of six years; and when she was humiliated when her supervisor implied that she did not select Complainant for a position because of her prior EEO activity. Initially, we note there is no evidence indicating that Complainant's claim that she was discriminated against when the Agency allegedly denied her several opportunities to serve in an acting supervisory DO capacity over a six-year period was ever the subject of an EEO complaint or otherwise investigated and adjudicated in a proceeding over which the Commission has jurisdiction. We further note that the Agency found no discrimination regarding Complainant's allegation that she was harassed when her supervisor allegedly implied that she did not select Complainant for a position because of her prior EEO activity, a finding Complainant did not appeal. Therefore, we find that Complainant is not entitled to non-pecuniary damages regarding these two issues. This leaves the degree and severity of emotional harm Complainant suffered arising from the Agency's decision to not select her for the SDDO position in January 2012, as the sole issue to be considered when evaluating Complainant's non-pecuniary damages claim. Complainant and several other witnesses provided detailed statements regarding the extent of the emotional harm she suffered following the Agency's discrimination. See Complaint File, Ex. 1 - Ex. 5. Based on this evidence, in its Decision on Compensatory Damages and Attorney's Fees, the Agency awarded Complainant $20,000 concerning this claim. Based on the foregoing, the Commission finds that the evidence submitted by Complainant does not support an award of non-pecuniary damages greater than $20,000. We find that this amount is adequate to compensate Complainant for the harm shown to be causally related to the discriminatory conduct. Further, the amount of the award meets the goals of not being "monstrously excessive" standing alone, not being the product of passion or prejudice, and being consistent with the amount awarded in similar cases. See Cygnar v. City of Chicago, 865 F.2d 827, 848 (7th Cir. 1989); See Frazier v. Dep't of Agriculture, EEOC Appeal No. 0120100064 (Mar. 31, 2011) ($25,000 in non-pecuniary damages where the complainant testified that she experienced emotional distress, anxiety, sleeplessness, and a changed world view as a result of the discriminatory non-selection); Moresi v. Dep't of Homeland Security, EEOC Appeal No. 0720090049 (Mar. 29, 2010) ($20,000 in non-pecuniary damages where the complainant experienced depression, insomnia, episodes of crying, overeating, and strained family relations after the agency's discriminatory non-selections); Reid v. Dep't of Veterans Affairs, EEOC Appeal No. 0720070077 (Nov. 13, 2009) ($20,000 in non-pecuniary damages where the complainant testified that he suffered from depression, anger, strained familial and marital relationships, insomnia, emotional distress, heart palpitations as a result of the Agency's discriminatory non-selection). Attorney's Fees Title VII and 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 Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at 11-1 (Aug. 5, 2015). 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); Blum v. Stenson, 465 U.S. 886, 899 (1984); Hensley v. Eckerhart, 461 U.S. 424, 435 (1983). All hours reasonably spent in processing the complaint are compensable, but the number of hours should not include excessive, redundant or otherwise unnecessary hours. Id., 11-15. A reasonable hourly rate is based on prevailing market rates in the relevant community for attorneys of similar experience in similar cases. Id., 11-6. An application for attorney's fees must include a verified statement of attorney's fees accompanied by an affidavit executed by the attorney of record itemizing the attorney's charges for legal services. Id., 11-9. While an attorney is not required to record in detail the way each minute of his or her time was expended, the attorney does have the burden of identifying the subject matters on which he or she spent his or her 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). The attorney requesting the fee award has the burden of proving, by specific evidence, entitlement to the requested fees and costs. Koren v. U.S. Postal Serv., EEOC Request No. 05A20843 (Feb. 18, 2003). Complainant's attorney submitted a fee petition from his law firm indicating that 14 attorneys, with hourly rates ranging from $225 to $330, worked a total of 146.40 hours on Complainant's case. The petition indicated that total attorney's fees amounted to $36,143.00. See Complaint File, Ex. A., 170-186. The Agency subtracted $8,392.50 from that amount because the attorney's fee submission indicated that 35 hours of the work done on Complainant's case occurred before the filing of Complainant's formal complaint. This left an amount owed of $27,750.00, which the agency reduced by 50% because Complainant did not prevail on all the allegations raised in her complaint. This 50% reduction resulted in Complainant being awarded $13,409.50 in attorney's fees. The evidentiary record shows that Complainant filed her formal complaint on May 16, 2012. And the attorney's fee petition includes work done between the dates of February 27, 2012 through May 15, 2012. Attorney's fees shall be paid for services performed by a licensed attorney for services performed after the filing of a written complaint. See 29 C.F.R. §§ 1614.108(e)(1)(iii)(iv). Upon review, we find that the Agency correctly determined that Complainant was not entitled to attorney's fees accrued before she filed her formal complaint. We now consider whether the total of $27,750.00 should have been reduced by 50%. We note that attorney's fees may not be recovered for work on unsuccessful claims. Hensley, 434. Courts have held that fee applicants should exclude time expended on "truly fractionable" claims or issues on which they did not prevail. See National Association of Concerned Veterans v. Dep't of Defense, 675 F.2d 1319, 1327 n.13 (D.C. Cir. 1982). Claims are fractionable or unrelated when they involve distinctly different claims for relief that are based on different facts and legal theories. Hensley, 461 U.S. at 435. 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 [complainant] 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 11-16 (citation omitted). Upon review, we find that Complainant's hostile work environment claim is not based on a common core of facts and is based on an unrelated legal theory than Complainant's non-selection claim. Unlike Complainant's non-selection claim, which took place in January 2012, her harassment allegations arose three (3) months later in April when she maintains that she was allegedly asked about legal counsel after filing her EEO complaint and that she was humiliated in front of colleagues when the Selecting Official for the SDDO position implied that she was not selected because she had engaged in prior EEO activity. Because Complainant's unsuccessful claims are truly fractionable from her successful claim, we find that the Agency's 50% reduction was appropriate here. CONCLUSION Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we find that Complainant is not entitled to an award of pecuniary damages and that a $20,000.00 award for non-pecuniary compensatory damages is sufficient. We further find that an award of $13,409.50 in attorney's fee is adequate. Accordingly, the Agency's final decision is hereby AFFIRMED. The Agency shall comply with the Order below. ORDER The Agency is ordered to take the following remedial actions within one hundred and twenty (120) calendar days of the date this decision is issued: 1. If it has not already done so, the Agency shall pay Complainant the amount of $20,000.00 in non-pecuniary compensatory damages. 2. The Agency shall pay Complainant the amount of $13,409.50 in attorney's fees. IMPLEMENTATION OF THE COMMISSION'S DECISION (K0617) 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 in the digital format required by the Commission, and submitted via the Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). 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 (M0617) 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. A party shall have twenty (20) calendar days of receipt of another party's timely request for reconsideration in which to submit a brief or statement in opposition. 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. Complainant's request 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 agency's request must be submitted in digital format via the EEOC's Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). 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 (S0610) 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. 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 ___8/9/17_______________ 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 Complainant was assigned into the SDDO position after the Agency's Office for Civil Rights and Civil Liberties (OCRCL) determined that she was discriminatorily denied this position after applying for it. 3 Complainant did not appeal the Agency's findings on the merits so those issues are not before us. 4 OCRCL ordered other remedial actions (such as a retroactive promotion, back pay with interest, training for the responsible management officials, the placement of a notice in the workplace regarding the discrimination finding, etc). Because Complainant did allege Agency non-compliance on appeal, these matters will not be addressed herein. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ 2 0120150446 10 0120150446