U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Amina W.,1 Complainant, v. Betsy DeVos, Secretary, Department of Education, Agency. Appeal No. 0120150644 Agency No. ED-2010-OS-0014 DECISION On December 3, 2014, Complainant filed an appeal, pursuant to 29 C.F.R. § 1614.403(a), from the Agency's November 6, 2014, final decision concerning 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., and Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq. BACKGROUND At the time of events giving rise to this matter, Complainant worked as a Program and Management Analyst, GS-14, in the Office of the Secretary, on the Program Risk Management and Monitoring Team, in Washington, D.C. In EEOC Appeal No. 0120111258 (August 15, 2013), request for reconsideration denied, EEOC Request No. 0520130687 (June 18, 2014), the Commission found Complainant, who had filed an EEO complaint on January 26, 2010, had established she had been subjected to frequent and ongoing sexual harassment by her first-level supervisor for nearly two years, and was later retaliated against for reporting the harassment by being involuntarily reassigned. As remedy, the Commission ordered, among other things, for the Agency to conduct a supplemental investigation into Complainant's entitlement to compensatory damages. In compliance with the Commission's decision, the Agency conducted a supplemental investigation. Complainant complied with the Agency's investigation and provided supporting evidence regarding the harm she experienced due to the harassment and retaliation. Complainant provided a statement attesting that, as a result of the harassment, she suffered panic attacks, chest pains, heart palpitations, dizziness, humiliation, insomnia, anxiety, depression, fear of termination, migraines, miscarriage, hair loss, acne, loss of enjoyment of activities, weight gain, as well as problems with relationships, and financial hardship. Complainant also provided affidavits from her mother, sister and friend, who all indicated changes in Complainant's physical and emotional health following the harassment and retaliatory reassignment. Complainant also supported her claim for damages with medical documentation including treatment for conditions that occurred as a result of the harassment. Based on the evidence provided, Complainant sought $ 175,000 in non-pecuniary damages. Complainant also noted that she incurred pecuniary damages related to medications, medical treatments, psychiatric visits, and other treatments which she alleged she incurred due to the harassment and retaliation. Specifically, Complainant asserted that she incurred out of pocket expenses in the amount of $3,400.97. These expenses include: co-payments for prescription medication of $525.25 (depression and anxiety) and $130 (insomnia); $340 for visits to her physicians for treatment of migraines, and $1,060.00 for copays for her psychiatrist visits; and $1,345.72 for treatments for adult acne. In addition, Complainant's attorney provided the Agency with a petition for fees and costs related to the supplemental investigation for compensatory damages. The attorney stated that he expended 19 hours interviewing the affiants, drafting their statements, reviewing documents and drafting the Complainant's damages brief at an hourly rate of $445. The attorney stated that he should be entitled to this hourly rate based on the legal market in Washington, D.C. and the "Laffey Matrix."2 Therefore, the attorney asserted that Complainant was entitled to $ 8,445.00 for fees. On November 6, 2014, the Agency issued its final decision regarding Complainant's entitlement to compensatory damages. The Agency determined that Complainant was not entitled to such damages. The Agency indicated that on July 9, 2010, Complainant filed a petition for bankruptcy under Chapter 7 of the U.S. Bankruptcy Code. The Agency noted that Complainant only listed a personal action regarding child support when asked to "list all suits and administrative proceedings to which [Complainant] is or was a party within one year immediately preceding the filing of this bankruptcy case." According to the Agency, Complainant did not report her January 2010 EEO administrative complaint in the bankruptcy proceeding. Based on these facts, the Agency found that the doctrine of estoppel or standing applied to the case at hand. The Agency noted that federal courts have not allowed plaintiffs who fail to list federal sector administrative EEO complaints on their Chapter 7 bankruptcy petitions to recover monetary damages in suits stemming from those complaints. The Agency held that all claims for monetary relief stemming from the EEO claims, including Complainant's claim for compensatory damages, belong to the bankruptcy trustee and Complainant has no standing to raise them. As such, the Agency found that Complainant was not entitled to compensatory damages. Finding that Complainant did not prevail regarding the issue of compensatory damages, the Agency determined that Complainant was not entitled to the related attorney's fees and costs. The instant 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"). Judicial Estoppel and Bankruptcy The overall narrative of the Agency's argument is that it need not follow the Commission's orders in EEOC Appeal No. 0120111258 & Request No. 0520130687 to award Complainant compensatory damages because Complainant filed for bankruptcy after she filed her EEO complaint and did not report that complaint to the bankruptcy court. The Agency argues that Complainant is judicially estopped from pursuing her claim for compensatory damages because such interest lies with the bankruptcy trustee. We recognize that courts have generally held, when an individual files for bankruptcy, that his/her then-existing legal claims become assets of the bankruptcy estate and the trustee is the "real party in interest" to pursue them. As a result, the individual, as the debtor, ceases to have an interest in the claim, unless the trustee abandons it. See Parker v. Wendy's Int'l, Inc. 365 F.3d 1268, 1272 (11th Cir. 2004). This principle of judicial estoppel reflects the important public policy interest in preserving the bankruptcy court's interest in preventing debtors from benefitting from actions calculated to hide assets from their creditors. However, the EEOC has a different, and no less important, public policy interest in enforcing the anti-discrimination laws and remedying employment discrimination. The Commission is specifically empowered "to prevent any person from engaging in any unlawful ... practice," and to enforce its authority "through appropriate remedies, including reinstatement or hiring of employees with or without back pay...". 42 U.S.C. § 2000e-16(b). That interest is not served by allowing a discriminating employer to benefit from a complainant's bankruptcy. Here, the Commission, pursuant to its administrative authority under Title VII, specifically found the Agency liable for the ongoing sexual harassment of Complainant, as well as the retaliatory reassignment, and ordered the Agency to remedy such discrimination through compensatory damages, among other relief. The Commission's authority under Title VII dictates that it remedy established discrimination and unlawful retaliation without regard to Complainant having filed for bankruptcy. See Taylor G. v. U.S. Postal Service, EEOC Appeal No. 0120120164 (April 17, 2018) (complainant who filed a petition under Chapter 7, allegedly misleading the bankruptcy court, not barred by judicial estoppel or lack of standing); Stiehl v. U.S. Postal Service, EEOC Appeal No. 0120061271 (Jan. 18, 2007), req. for recon. denied, EEOC Request No. 0520070311 (March 23, 2007) (complainant who filed a petition under Chapter 7, allegedly misleading the bankruptcy court, not barred by judicial estoppel or lack of standing); Glover v. U.S. Postal Service, EEOC Appeal No. 0120071106 (May 1, 2007), req. for recon. denied, EEOC Request No. 0520070749 (Feb. 11, 2008) (complainant who failed to disclose her EEO complaint, allegedly misleading a Chapter 13 bankruptcy court, not barred by doctrine of judicial estoppel). We find that the Agency is simply Complainant's employer, nothing else, and its obligation is to the Commission to remedy the discrimination it was found to have caused. Whether Complainant has an interest in the compensatory damages award is a matter for the trustee and/or bankruptcy court, not the Agency. See J.P. Morgan Chase, 928 F.Supp.2d at 956 n.2 (noting that whether an award for monetary damages to the employee "might present issues related to pursuit of the award by the bankruptcy trustee or any other such complications related to such a 'windfall' ... is not the concern of this Court"). As such, we find that the Agency is not relieved of our previous orders concerning compensatory damages. Compensatory Damages Pursuant to section 102(a) of the Civil Rights Act of 1991, a complainant who establishes his or her claim of unlawful discrimination may receive, in addition to equitable remedies, compensatory damages for past and future pecuniary losses (i.e., out of pocket expenses) and non-pecuniary losses (e.g., pain and suffering, mental anguish). 42 U.S. C. § 1981a(b)(3). For an employer with more than 500 employees, such as the agency, the limit of liability for future pecuniary and non-pecuniary damages is $300,000. Id. The particulars of what relief may be awarded, and what proof is necessary to obtain that relief, are set forth in detail in EEOC Notice No. 915.002, Compensatory and Punitive Damages Available Under Section 102 of the Civil Rights Act of 1991 (July 14, 1992). Briefly stated, the complainant must submit evidence to show that the agency's discriminatory conduct directly or proximately caused the losses for which damages are sought. Id. at 11-12, 14; Rivera v. Dep't of the Navy, EEOC Appeal No. 01934157 (July 22, 1994). The amount awarded should reflect the extent to which the agency's discriminatory action directly or proximately caused harm to the complainant and the extent to which other factors may have played a part. EEOC Notice No. N 915.002 at 11-12. The amount of non-pecuniary damages should also reflect the nature and severity of the harm to the complainant, and the duration or expected duration of the harm. Id. at 14. Here, we note that the Agency, despite its position on the effect of the bankruptcy, has conducted a supplemental investigation pertaining to Complainant's entitlement to compensatory damages and the record is complete. 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 Enforcement Guidance. 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). Upon review of the evidence provided by Complainant, we find that she has demonstrated that as a result of the sexual harassment and retaliatory reassignment, she has experienced significant emotional pain. Complainant asserted that she experienced panic attacks, chest pains, heart palpitations, dizziness, humiliation, insomnia, anxiety, depression, fear of termination, migraines, miscarriage, hair loss, acne, loss of enjoyment of activities, weight gain, relationships, and financial hardship. Her mother, sister and friend have also provided statements supporting Complainant's claims, and noted that Complainant did not experience depression before the unlawful harassment. Her sister averred that Complainant felt isolated due to the Agency's discrimination. The witnesses also noted that Complainant's work stress resulted in physical changes to her appearance including weight gain, acne leaving scars, and significant thinning and hair loss. These issues caused Complainant to be further depressed based on her appearance. In addition, Complainant provided medical documentation stating that Complainant experienced stress due to ongoing work concerns. Based on the evidence provided, we find that an award of $150,000 in non-pecuniary damages is appropriate. This amount takes into account the duration of the harassment, the nature and severity of the harm suffered by Complainant, the existence of previous conditions, and it is consistent with prior Commission precedent. See Brendon L. v. U.S. Postal Serv., EEOC Appeal No. 0120141161 (Feb. 3, 2015) (awarding $150,000 in non-pecuniary where complainant was subjected to harassment nearly every day for almost two and one-half years. The harassment led Complainant to skip family dinners, become less communicative, have difficulty sleeping, become isolated at work and home, have panic attacks and blood pressure issues, experience embarrassment, and humiliation); Brown-Fleming v. Dep't of Justice, EEOC Appeal No. 0120082667 (Oct. 28, 2010) (awarding $150,000 in non-pecuniary damages for a complainant who suffered from depression, anxiety, stress, insomnia, difficulty concentrating, disassociation, crying spells, social isolation, damage to her professional reputation, withdrawal from relationships, short-term memory loss, nightmares, panic, worsening abdominal pain, worsening hypertension, dramatic weight-loss, and worsening psoriasis brought on by stress); Lauralee C. v. Dep't of Homeland Sec., EEOC Appeal No. 0720150002 (Sept. 25, 2017) (awarding $ 200,000 in non-pecuniary damages for a complainant subjected to sexual harassment for over two and a half years who experienced additional medical conditions such as panic attacks, insomnia, and depression since the agency subjected her to the unlawful discrimination). Pecuniary Damages Upon review, the Commission finds that Complainant established a nexus between her past pecuniary damages and the Agency's discriminatory actions. Complainant provides the Commission with copies of medical bills and receipts in addition to affidavits and medical notes indicating that these expenses were because of the sexual harassment and retaliatory reassignment. As stated above Complainant indicated that she experienced a series of conditions including hair loss and additional prescription medications for her medical conditions outside of her depression, anxiety and insomnia. However, she only requested compensation for co-payments for prescription medication for depression, anxiety, and insomnia; copayment for physicians for her migraines, copay for visits to her psychiatrist; and treatments for adult acne for a total of $ 3,400.97. Complainant tailored her request for pecuniary damages to those connected to the Agency's unlawful harassment and retaliatory reassignment. The Commission finds that the bills in conjunction with Complainant's affidavits in support and medical statements establish the requisite nexus between the alleged harm and the discrimination. Accordingly, we find that complainant is entitled to past pecuniary damages in the amount of $ 3,400.97. Attorney's Fees and Costs Further, the Commission finds that the Agency's denial of additional attorney's fees and costs for work conducted regarding compensatory damages was improper. In order to recover attorney's fees and costs, Complainant must be a prevailing party. A "prevailing party" for purposes of obtaining attorney's fees is one who succeeds on any significant issue in a complaint and achieves some of the benefits sought in bringing the complaint. Troie v. U.S. Postal Serv., EEOC Request No. 05930866 (Sept. 22, 1994). The Agency incorrectly concluded that Complainant was not a prevailing party in her entitlement to compensatory damages. We note that the attorney informed the Commission that he no longer represents Complainant in this matter by letter dated January 8, 2015. As such, we find that Complainant is entitled to fees and costs up until this date. By federal regulation, the agency is required to award attorney's fees for the successful processing of an EEO complaint in accordance with existing case law and regulatory standards. EEOC Regulation 29 C.F.R. § 1614.501(e)(1)(ii). To determine the proper amount of the fee, a lodestar amount is reached by calculating the number of hours reasonably expended by the attorney on the complaint multiplied by a reasonable hourly rate. Blum v. Stenson, 465 U.S. 886 (1984); Hensley v. Eckerhart, 461 U.S. 424 (1983). There is a strong presumption that the number of hours reasonably expended multiplied by a reasonable hourly rate, the lodestar, represents a reasonable fee, but this amount may be reduced or increased in consideration of the degree of success, quality of representation, and long delay caused by the agency. 29 C.F.R. § 1614.501(e)(2)(ii)(B). The circumstances under which the lodestar may be adjusted are extremely limited, and are set forth in Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), 11-9. (Aug. 5, 2015). A fee award may be reduced: in cases of limited success; where the quality of representation was poor; the attorney's conduct resulted in undue delay or obstruction of the process; or where settlement likely could have been reached much earlier, but for the attorney's conduct. Id. The party seeking to adjust the lodestar, either up or down, has the burden of justifying the deviation. Id. at p. 11-10. To determine the appropriate prevailing market rate for an attorney in the Washington DC area, the Commission generally uses the Laffey Matrix, as used by the attorney in this case. See Complainant v. Dep't of Housing and Urban Development, EEOC Appeal No. 0120113288 (March 14. 2014). After a review of the record and all of the contentions made on appeal, we find that there is nothing in this case that would warrant an adjustment of the hourly rates found in the Laffey Matrix. As such, we find that the Attorney's rate of $ 445 is reasonable. Furthermore, the Attorney indicated that he expended 19 hours in preparing Complainant's documentation for compensatory damages which consisted of several affidavits and hundreds of pages of medical documentation and receipts. In addition, the Attorney prepared the request for fees. Based on the totality of the record, we discern no reason to modify the Attorney's request for 19 hours expended. As such, we conclude that Complainant is entitled to $8,445.00 in fees. CONCLUSION Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, the Commission finds that the doctrine of judicial estoppel cannot be used here to prevent it from completely remedying the discrimination established in this case. We further find the Agency's award of compensatory damages and fees and costs for the Attorney to be inadequate. The Commission therefore REVERSES the Agency's final decision and REMAND the matter in accordance with the ORDER below. ORDER The Agency is ORDERED to take the following remedial actions within sixty (60) calendar days of this decision is issued: 1) Pay $3,400.97 in pecuniary damages and $150,000 in non-pecuniary compensatory damages to Complainant. 2) Pay an award of attorney's fees and costs associated with Complainant's compensatory damages claim in the amount of $8,445. 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. 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 (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 (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: _____________________________________ Bernadette B. Wilson's signature Carlton M. Hadden, Director Office of Federal Operations April 19, 2018 _________________________ 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 The Laffey Matrix consists of hourly rates for attorneys of varying experience levels and paralegals/law clerks that was prepared by the Civil Division of the United States Attorney's Office for the District of Columbia (USAO) to evaluate requests for attorney's fees in civil cases in District of Columbia courts. The matrix is intended for use in cases in which a fee-shifting statute permits the prevailing party to recover "reasonable" attorney's fees. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ 2 0120150644 10 0120150644